Michigan Court of Appeals; Docket #320101; Unpublished
Judges Murphy, Stephens, and Gadola; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]
Exception for Motorcycle Injuries [§3114(5)]
One-Year Notice Rule Limitation [§3145(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam Opinion involving a motorcyclist’s claim for PIP benefits, the Court of Appeals issued several rulings:
1) a genuine issue of material fact existed regarding whether the motorcycle accident, which occurred when the driver quickly exited the highway and crashed, involved a motor vehicle pursuant to MCL 500.3105;
2) if a motor vehicle was indeed involved in the accident, whether that vehicle was identifiable within the one-year statute of limitations in MCL 500.3145; and
3) the record below was insufficient to resolve the question of insurer priority, because based on the evidence, it could not be determined whether the vehicle driver’s insurer was identifiable within the statutory time frame and, if it was, whether equitable principles nevertheless precluded a finding of priority.
This case involved a plaintiff who was injured when he crashed his motorcycle while exiting the highway at an excessive rate of speed, to avoid a tailgating vehicle driven by Camille Sumpter. Plaintiff sought PIP benefits from his insurer, defendant Home Owners, which denied the claim, maintaining the accident did not involve a motor vehicle (Home Owners had apparently contacted Sumpter and had determined her vehicle was not involved). Plaintiff’s attorney also contacted Sumpter, but she did not indicate that her vehicle was following plaintiff’s motorcycle. Plaintiff then filed this action seeking benefits. After the one-year statute of limitations expired, plaintiff amended his complaint to include a claim against Progressive, Sumpter’s no-fault insurer. Progressive moved for summary disposition, which was granted because plaintiff had not provided notice to Progressive and had not filed a claim for benefits with Progressive within one year of the accident, as required by §3145(1). Home Owners also moved for summary disposition, arguing that a motor vehicle was not sufficiently involved in the accident to trigger PIP benefits, and even if a motor vehicle was involved, it was Sumpter’s vehicle and, therefore, Progressive had priority to pay under MCL 500.3114(5). Plaintiff asserted that a genuine issue of material fact existed regarding whether Sumpter’s vehicle was involved, and if it was involved, whether it was identifiable before the one-year statute of limitations expired. Plaintiff also contended that Home Owners was equitably estopped from relying on priority provisions in the No-Fault Act because: 1) it knew that Sumpter’s vehicle was tailgating plaintiff at the time of the accident but did not provide this information to plaintiff, and 2) it had denied plaintiff’s claim based solely on a motor vehicle not being involved, and not priority.
The trial court granted summary disposition for Home Owners, finding that plaintiff’s failure to timely file his claim against Progressive precluded any action. The trial court, however, did not rule on the equitable estoppel issue, did not address the “mend the hold” doctrine that was argued, and did not determine whether Sumpter’s vehicle could have been identified before the one-year statute of limitations had expired.
The Court of Appeals reversed, holding that a genuine issue of material fact existed regarding whether the accident and plaintiff’s injuries arose out of the operation or use of Sumpter’s vehicle. The court said there was insufficient evidence to conclude which insurer had priority to pay because it could not be determined whether the allegedly involved vehicle was identifiable within one year of the accident.
Regarding the involvement of Sumpter’s vehicle in the accident, the Court of Appeals said:
“From the beginning, plaintiff operated on the basis that a motor vehicle caused the accident; therefore, plaintiff, under ordinary circumstances, should have filed a timely claim against the insurer of the owner, registrant, or operator of any involved motor vehicle in order to comply with MCL 500.3114(5). Plaintiff maintains that he was unable to identify Sumpter’s motor vehicle in relationship to pursuing a claim against her insurer, Progressive, within the one-year limitations period in MCL 500.3145(1).”
Regarding priority, the court looked to Frierson v West American Ins Co, 261 Mich App 732 (2004), for guidance. The court said:
“We hold that the analytical framework from Frierson is equally applicable here, such that, if plaintiff could not identify Sumpter’s vehicle under the circumstances presented, and thus could not identify Progressive as the purported higher priority insurer under MCL 500.3114(5) before expiration of the one-year statute of limitations, MCL 500.3145(1), Home Owners can be held liable to pay PIP benefits.”
The Court of Appeals held the record was insufficient to make a determination under the Frierson framework. The court said:
“The trial court did not appear to entertain or consider, under the facts and circumstances surrounding this case, whether Progressive was identifiable as a higher priority insurer under MCL 500.3114(5) before expiration of the one-year limitations period. Accordingly, we remand the case to the trial court for consideration of this issue and application of the Frierson decision. If the trial court finds in favor of Home Owners on the issue, we next direct the trial court to consider the equitable estoppel and waiver (‘mend the hold’ doctrine) arguments, which the court also apparently failed to consider and rule upon. If the trial court determines that Sumpter/Progressive was identifiable before the limitations period elapsed, and it rejects the equitable estoppel and waiver arguments, Home Owners will be entitled to summary dismissal, subject, of course, to any appeal of the court’s decisions. If the trial court determines that Sumpter/Progressive was not identifiable before the limitations period expired, or that plaintiff’s equitable estoppel or waiver argument is sound and applicable, the case is to proceed to trial on the question whether the accident involved or arose out of the use or operation of Sumpter’s motor vehicle, as there is a genuine issue of material fact on the matter for the reasons that we now discuss.”
The Court of Appeals concluded:
“We remand for the trial court to entertain the issue concerning whether Sumpter’s motor vehicle was identifiable within the one-year statute of limitations, MCL 500.3145, and, if the court determines that it was identifiable, to address whether equitable estoppel or waiver principles nevertheless preclude Home Owners from arguing the issue of priority. If plaintiff’s case survives these obstacles, the case is to proceed to trial on the question whether the motorcycle accident and resultant injuries involved or arose out of the operation or use of Sumpter’s motor vehicle.”
