Michigan Court of Appeals; Docket #312984; Unpublished
Judges Owens, Jansen, and O’Connell; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Determination of Domicile [§3114(1)]
Exception to General Priority for Non-Occupants [§3115(1)]
One-Year Notice Rule Limitation [§3145(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving whether plaintiff, who was struck by a City of Detroit bus, was domiciled with his sister under MCL 500.3114(1) for purposes of collecting PIP benefits under his sister’s no-fault policy, the Court of Appeals issued several rulings:
1) summary disposition was erroneously granted for the City of Detroit because there was a genuine issue about where plaintiff resided;
2) summary disposition was properly granted to Progressive, plaintiff’s sister’s no-fault insurer, because he argued in the trial court that he was not domiciled with his sister and he was therefore precluded on appeal from making the argument that he resided with his sister;
3) plaintiff’s claim against Progressive was time-barred because Progressive was added as a party after the statute of limitations in MCL 500.3145(1) had expired, and because plaintiff’s claim began to accrue on the date of the accident regardless of the fact that another insurer had paid benefits within a year of the accident;
4) the City of Detroit, which had paid some of plaintiff’s medical expenses, was not estopped from denying plaintiff’s claim.
Plaintiff was struck by a bus operated by defendant City of Detroit (City). Plaintiff did not have no-fault insurance and filed an application for benefits with the City, a self-insured entity. In the application, plaintiff indicated his address was that of his sister, LaRonda. The City paid some of plaintiff’s medical expenses, but stopped. Plaintiff had also received some benefits from Aflac. Plaintiff then filed an action against the City for benefits. The City moved for summary disposition, claiming it was not liable because plaintiff lived with his sister and her insurer, Progressive, was liable. Plaintiff then added Progressive as a defendant, and Progressive moved for summary disposition, arguing plaintiff’s claim was barred by the statute of limitations in §3145(1). The trial court granted the City’s motion for summary disposition, finding that plaintiff admitted he lived with his sister. Progressive again moved for summary disposition, maintaining that plaintiff was not domiciled with his sister within the meaning of §3114(1). The trial court granted Progressive’s motion.
The City
In reversing summary disposition for the City, the Court of Appeals said plaintiff presented sufficient evidence to create an issue about his domicile. The appeals court emphasized that if plaintiff resided with his sister, he could recover from her no-fault insurer (Progressive), but if he did not live with his sister, he could seek benefits from the City.
Citing Workman v Detroit Auto Inter-Ins Exchange, 404 Mich 477 (1979), the Court of Appeals explained that four factors are used to determine domicile:
“(1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his ‘domicile’ or ‘household’; (2) the formality or informality of the relationship between the person and the members of the household; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises; [and] (4) the existence of another place of lodging by the person alleging ‘residence’ or ‘domicile’ in the household[.]”
When granting summary disposition for the City, the trial court relied on plaintiff’s testimony that he lived with his sister, the Court of Appeals noted. However, the appeals court said the trial court erroneously treated plaintiff’s testimony as a binding judicial admission when it was really an evidentiary admission that could be contradicted or explained.
Based on the evidence presented, including plaintiff’s own affidavit and his sister’s testimony that plaintiff did not reside with her, the Court of Appeals held there was an issue regarding whether plaintiff lived with his sister, thereby precluding summary disposition for the City.
Progressive
Next, the Court of Appeals ruled the trial court properly granted Progressive’s motion for summary disposition. In so holding, the appeals court noted that plaintiff, rather than claiming at the trial level that a question of fact existed, argued he was not domiciled with his sister and that the City had priority to pay benefits. The appeals court also noted that most of the domicile factors in Workman favored plaintiff residing with his fiancée, and not his sister. According to the Court of Appeals:
“As plaintiff previously took the position that he was not domiciled with LaRonda, and that only the City could be liable for his injuries, he is precluded from seeking redress in this Court based upon the position that Progressive is the liable insurer because he was domiciled with LaRonda.”
Statute of Limitations
Regarding whether plaintiff’s claim against Progressive was barred by the statute of limitations in §3145(1), the Court of Appeals said this issue was not preserved for appellate review. However, the court examined the issue anyway because the facts were before it. The court noted that plaintiff named Progressive as a defendant in his amended complaint, and not his initial complaint. Therefore, because the relation-back doctrine does not apply to the addition of new parties, plaintiff’s claim against Progressive was time-barred, the Court of Appeals said.
Estoppel
As to plaintiff’s argument that the City was estopped from denying his claim because it paid some of his medical expenses and he relied on that conduct as a representation that the City would fully compensate him, the Court of Appeals stated:
“Because plaintiff did not plead or otherwise raise his estoppel argument before the trial court’s order granting the City summary disposition, the trial court did not abuse its discretion by denying defendant’s motion for reconsideration.”
The court continued:
“What plaintiff seeks is enforcement of an alleged promise … under a theory of promissory estoppel. Plaintiff’s complaint, however, fails to plead a separate claim of promissory estoppel. Plaintiff’s complaint also lacks any allegation of a promise made by the City. Rather, the complaint only alleges that the City wrongfully stopped paying PIP benefits. Thus, plaintiff’s complaint fails to allege a necessary element of promissory estoppel, that being the existence of a promise, and accordingly, the City could be entitled to summary disposition on a promissory estoppel claim pursuant to MCR 2.116(C)(8).”
In conclusion, the Court of Appeals reversed summary disposition for the City, affirmed summary disposition for Progressive, and remanded the case.
