Michigan Court of Appeals; Docket No. 288633; June 8, 2010; Published
Judges Murphy, Kelly, and Stephens; unanimous
Official Michigan Report Citation: 288 Mich. App. 593, Link to Opinion 
Leave to appeal to the Michigan Supreme Court was denied January 13, 2011
STATUTORY INDEXING:
Disqualification for unlawful taking and use of vehicle [3113(a)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion by Chief Judge Murphy, the Court of Appeals held that where a person was a passenger in a motor vehicle that was unlawfully taken, but the person did not actually participate in the “taking,” the person is not barred from receiving personal injury protection benefits under MCL 500.3113(a).
The plaintiff in this case, Henry Ford Health System, filed this action against defendant, Esurance Insurance Company, the insurer of a stolen vehicle, to recover the cost of a patient’s medical treatment. Based on MCL 500.3113(a), Esurance denied liability, arguing that the patient was not entitled to no-fault benefits, because at the time of the accident, the patient was using the vehicle knowing it had been stolen. The trial court denied the parties’ cross-motions for summary disposition and a jury found that the patient was not entitled to no-fault benefits because he could not reasonably believe that he was entitled to take and use the vehicle.
In reversing, the Court of Appeals noted that there was no dispute that the vehicle had been stolen. However, the court continued that there was no claim that the patient participated in taking the vehicle. The court further noted that under §3113:
“A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
(a) The person was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle.”
(emphasis in original)
Based on this language, the court found that the patient was entitled to PIP benefits because he did not take possession or gain control of the vehicle. In addition, the court found that he never took the Jeep from anyone or from any place. The patient merely joined in the use of the vehicle. The taking had been completed by the time the patient became a passenger and he never took control or possession of the vehicle. The court further noted that although there is no dispute that the passenger was using the vehicle as a passenger, he was not involved in taking the vehicle.
The court explained that if the Legislature had intended to preclude benefits under the circumstances in this case, it could have stated that benefits are precluded if the vehicle was unlawfully being used. The language that prohibits benefits to a person that “had taken” a vehicle is not synonymous with prohibiting benefits to a person that had used a vehicle. The passenger in this case was using the vehicle, but he did not take the vehicle. Therefore, the court concluded that mere use of a vehicle as a passenger does not establish that the person “had taken the vehicle,” which is a prerequisite for exception of coverage under §3113(a). For imposition of the coverage exception, the vehicle must be one that the injured person had taken and used. In this regard, the court stated:
“Here, Hamilton never engaged or participated in an act through which he took possession or gained control of the Jeep. There was no act transferring possession or control of the Jeep from Profic or others to Hamilton, nor did Hamilton take possession or control of a vehicle that was unattended and not within anyone’s control or possession. He never ‘took’ the Jeep from anyone or anyplace. On the documentary evidence presented, we cannot find that he ‘had taken’ the vehicle, let alone that he took it unlawfully. Rather, the thief who directly took the Jeep away from the owner or possibly Profic would most accurately be described as having taken the vehicle, and then Hamilton merely joined in relative to the ‘use’ of the Jeep; a Jeep that had already been taken. The taking was complete by the time Hamilton came into the picture, and he thereafter never took control or possession of the vehicle away from Profic. . . .
The trial court erred in denying plaintiff’s motion for summary disposition under MCR 2.116(C)(10) because there was no evidence that Hamilton was using a motor vehicle that ‘he . . . had taken unlawfully,’ MCL 500.3113(a).”
