Michigan Court of Appeals; Docket #251333; Unpublished
Judges Wilder, Fitzgerald, and Kelly; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Obligation of Non-Resident Owner / Registrant to Insure a Vehicle [3102(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed a judgment awarding plaintiff first party benefits, finding that defendant’s documentary evidence showing the vehicle had not been operated in Michigan for more than 30 days in the previous calendar year, i.e., January 1 through December 31, was insufficient to show the amount of time the vehicle had been operated in Michigan between January 1 and the date of the accident, July 14, 1996. The plaintiff in this case was seriously injured in a motor vehicle accident while driving a U-Haul truck in Georgia. Plaintiff sued defendant, the insurer of the truck, for personal injury protection benefits. A jury entered judgment for plaintiff in the amount of $449,143.33, plus post-judgment interest and penalty interest and attorney fees in the amount of $55,000. On appeal, defendant argued that plaintiff was not entitled to no-fault coverage because the vehicle had not been in operation in Michigan “for more than 30 days in the calendar year preceding the accident” as required by defendant’s endorsement. In support of its claim, defendant presented rental income and maintenance records which allegedly provided evidence of the vehicle’s location every day of the preceding year. In rejecting defendant’s argument, the Court of Appeals noted that under the commonly understood meaning of the phrase, preceding calendar year, defendant provided evidence of the vehicle’s location from January 1, 1995 to December 31, 1995 but failed to provide evidence of the vehicle’s location from January 1, 1996 to the date of the accident. Therefore, the court determined defendant’s evidence was insufficient to support its motion for summary disposition and affirmed the trial court decision. In this regard, the court stated:
“. . . [T]he trial court correctly concluded that Balcerczak’s affidavit did not resolve the question as to the location of the vehicle between January 1, 1996 and the date of the accident. . . . Giving the term, ‘calendar year’ its plain meaning, Balcerzak’s affidavit must be read as addressing the location of the truck between January 1, 1995 and December 31, 1995, and not addressing the vehicle’s location from January 1, 1996 forward. Thus, considering this documentary evidence in the light most favorable to plaintiff as the nonmoving party, . . . the evidence falls short of supporting judgment for defendant as a matter of law on this question.”
The court next rejected defendant’s argument that it was entitled to a setoff of the entire amount of the judgment from plaintiff’s tort case. In so ruling, the court noted the release signed in connection to the tort settlement unambiguously provided that it did not pertain to any first-party no-fault insurance benefits. Therefore, plaintiff had no claim for reimbursement or offset.
