Michigan Court of Appeals; Docket #285884; Unpublished
Judges Saad, O’Connell, and Zahra; unanimous, per curiam
Official Michigan Report Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Definition of owner [3101(2)(h)]
General rule of priority liability [3114(1)]
Procedures applicable to disputes between two or more insurers [3172(3)]
Rule making regarding operation of the Assigned Claims Facility [3175(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals determined that where there was insufficient evidence that the injured driver of an uninsured motor vehicle had use of the vehicle in order for the driver to be considered an owner, the driver was not barred from receiving personal injury protection benefits from the actual owner’s insurer, which insured another vehicle.
This case arose out of injuries sustained by the driver of an uninsured vehicle which was owned by his girlfriend. Although the vehicle was not insured, another vehicle which the driver’s girlfriend owned was insured through defendant Fremont Insurance Company. After Freemont refused to provide personal injury protection benefits, the driver applied for benefits through the Assigned Claims Facility, which assigned his claim to Titan Insurance. Titan paid personal injury protection benefits on behalf of the driver and sought reimbursement from Fremont under MCL 500.3114(4)(a). Section 3114(4)(a) provides that “except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) the insurer of the owner or registrant of the vehicle occupied; (b) the insurer of the operator of the vehicle occupied.” Plaintiff also sought reimbursement of its lost adjustment costs and attorney fees. The trial court found that the plaintiff was entitled to reimbursement but not for the loss of adjustment costs or attorney fees.
On appeal, the defendant argued the driver was an owner of the vehicle under MCL 500.3101(2)(g)(i) and, therefore, defendant was not required to pay benefits under MCL 500.3114(4)(a). The Court of Appeals disagreed, finding that the evidence was sufficient that the driver only used the vehicle “incidental to” the owner’s use. The evidence was also sufficient the car had stopped running and both the owner and driver believed that the driver needed the owner’s permission before attempting to fix the car. Further, the court found that although the driver did not, in fact, obtain permission to use the car on the date of the accident, there was no evidence in the record that he could regularly use the car. In this regard, the court stated:
“We conclude that the summary disposition evidence supports the trial court’s conclusion that Pomeroy was not an owner of the Grand Prix. Although the evidence is conflicting as to whether Pomeroy ever used the Grand Prix prior to the accident, the evidence is clear that his use was incidental and was subject to Lupton’s use of the car. Moreover, the evidence establishes that the car had stopped functioning for some number of months prior to the accident, and that both Pomeroy and Lupton believed Pomeroy needed permission from Lupton to attempt [to] get the car running. Although Pomeroy did not in fact obtain this permission before driving the car on the day of the accident, there is no indication in the record that he could have used the car regularly without Lupton’s permission. Absent proof of a right on Pomeroy’s part to use the car, or that he used the car regularly, Pomeroy cannot be deemed an owner under MCL 500.3101(2)(h)(i).”
On cross-appeal, the plaintiff argued that it was entitled to reimbursement for loss of adjustment costs and attorney fees under Administrative Rule 11.105, which was promulgated pursuant to MCL 500.3175. The defendant argued that because this issue involved a dispute between two insurers, under MCL 500.3171(3)(f) and Spectrum Health v Grahl, 270 Mich App 248; 715 NW2d 357 (2006), such fees are not available. The Court of Appeals agreed with plaintiff and reversed in part, noting that R 11.105 “provides a specific right to the servicing insurers . . . allowing recovery of ’appropriate loss adjustment costs.’” However, because the provision did not provide for attorney fees, the court found that plaintiff was only entitled to loss adjustment costs. In this regard, the court stated:
“[U]nlike MCL 500.3172(3)(f), R 11.105 does not condition reimbursement on a ‘dispute’ between two insurers. Rather, R 11.105 provides a specific right to the servicing insurers distinct from MCL 500.3172(3)(f) allowing the recovery of ‘appropriate loss adjustment costs.’ Accordingly, plaintiff is entitled to reimbursement of loss adjustment costs pursuant to R 11.105. However, because R 11.105 does not address attorneys’ fees, the trial court correctly denied plaintiff’s request for attorneys’ fees pursuant to Spectrum.”
