Michigan Court of Appeals; Docket No. 244777; Published
Judges Meter, Wilder, and Borrello; unanimous; per curiam
Official Michigan Reporter Citation: 262 Mich. App. 10, Link to Opinion 
STATUTORY INDEXING:
Disqualification for Intentionally Suffered Injury [3105(4)]
Exception for Occupants [3114(4)]
General / Miscellaneous [3142]
General / Miscellaneous [3148]
When Claimants Can Receive PIP Benefits Through the Assigned Claims Facility [3172(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published per curiam opinion, the court held Amerisure responsible for paying PIP benefits to plaintiff Michael Anthony under the Assigned Claims Facility provisions of §3172 of the No-Fault Act, and denied Amerisure’s argument that the priority provision of §3114(4) required payment of those benefits by the insurer of the vehicle involved in the accident.
Plaintiff Michael Anthony suffered injuries after jumping from a Ford Explorer being driven by Jeremy Whitworth. The Ford Explorer was owned by Whitworth and registered in his name, but had been insured by Auto-Owners under a policy issued to a corporation. Jeremy Whitworth was not a named insured in the Auto-Owners’ policy. A claim was filed with the Assigned Claims Facility on the basis that no other insurance policy covered Anthony’s injuries, and the matter was assigned to Amerisure.
Amerisure argued that §3114(4) provides that a person who suffers bodily injury while the occupant of a motor vehicle and who has no available insurance policy of his own or in his family shall claim PIP benefits from “the insurer of the owner or registrant of the vehicle occupied” or “the insurer of the operator of the vehicle occupied.” The Court of Appeals held that the owner, registrant and operator of the vehicle was Whitworth, but Whitworth had no policy of insurance with Auto-Owners who actually insured the vehicle under a policy issued to a corporation. Since Whitworth had no policy of insurance with Auto-Owners, the Court of Appeals held that Anthony could not claim PIP benefits from Auto-Owners by virtue of the plain language of the priority provisions of §3114(4). The court held that under the plain language of the statute, the “insurer of the owner (or registrant or operator) of the motor vehicle involved in the accident is responsible for paying PIP benefits, not the insurer of the vehicle itself.” In this case, Auto-Owners, while the insurer of the vehicle involved in the accident, was not the insurer of the owner, registrant or operator Whitworth. Sincere there were no named insureds under the Auto-Owners policy involved in the accident, Auto-Owners was not responsible for the PIP benefits and Amerisure was obligated to pay the benefits.
In a second issue in this case, the Court of Appeals upheld the trial court determination allowing evidence of Anthony’s intoxication to be considered by the jury in making a determination of whether or not his injuries were excluded under the intentional act provisions of §3105 of the No-Fault Act, which would preclude coverage for injuries “suffered intentionally by the injured person or caused intentionally by the claimant.” The court relied on Miller v Farm Bureau Mutual Insurance Company, 218 Mich App 221 (1996), which held that “one acts intentionally [for the purposes of the No-Fault Act] if he intended both the act and the injury. The subjective intent of an actor is the focus of determining whether the actor acted intentionally.” Therefore, the court concluded that the trial court acted properly in allowing the jury to consider the extent of Anthony’s intoxication in determining his subjective intent.
The Court of Appeals also upheld an award of penalty interest under §3142 of the No-Fault Act and rejected Amerisure’s argument that, as an insurer assigned the claim by the Michigan Assigned Claims Facility, it should not be subject to §3142. The court held that Amerisure’s argument was patently without merit. The plain language of the statute in no way indicates that penalty interest provisions should not apply to an insurer assigned by the Assigned Claims Facility.
Finally, the court upheld an award of actual attorney fees under §3148(1) of the No-Fault Act. The court stated that it was not left with a definite and firm conviction that a mistake occurred with respect to the court’s award of attorney fees under the “clear error” standard applicable to such claims. The court could not conclude that the trial court clearly erred in rejecting Amerisure’s “intentional injury” theory for refusing to pay the claim.
The court also rejected Amerisure’s argument that the accumulation of RJA interest under MCL 600.6013 should be tolled by reason of Amerisure’s tender of payment to the clerk or its deposit of the judgment amount into an interest bearing account pending the outcome on appeal. Here, Amerisure’s tender of payment was not in fact a satisfaction of the judgment, because it chose to pursue an appeal.
