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Kessel v Rahn; (COA-UNP, 1/23/2001, RB #2189)


Michigan Court of Appeals; Docket No. 220013; Unpublished
Judges Sawyer, Murphy, and Fitzgerald; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion alt

Compulsory Insurance Requirements for Owners or Registrants of Motor Vehicles Required to Be Registered [3101(1)] 
Definition of Owner [3101(2)(h)]
Disqualification of Uninsured Owners / Operators for Noneconomic Loss [3135(2)]

Motor Vehicle Code (Definition of Owner) (MCL 257.37) (MCL 257.401a)

In this unanimous published opinion written by Judge Sawyer, the Court of Appeals affirmed summary disposition in favor of defendant, dismissing plaintiff’s tort claim for non-economic loss under section 3135(2)(c) because plaintiff was operating “her own vehicle” at the time the injury occurred while the vehicle was uninsured.  Section 3135(2)(c) of the no-fault statute disqualifies a plaintiff from recovering damages for non-economic loss if the plaintiff “was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.”  The plaintiff in this case was driving an automobile titled in the name of her mother.  However, the trial court found that the plaintiff’s use of the vehicle was so pervasive and continuous that the vehicle was in fact plaintiff’s “own vehicle” and therefore, the provisions of section 3135(2)(c) applied. 

 In affirming the trial court, the Court of Appeals relied upon its earlier opinion in Ardt v Titan Insurance Company [Item No. 2043], where the court concluded that the operator of a vehicle could be deemed “an owner” under section 3101 if the operator had a proprietary or possessory use of the vehicle, rather than merely incidental use, for more than 30 days.  The court refused to distinguish the Ardt case on the basis that it involved a claim for PIP benefits and the case at bar involved a claim for non-economic loss damages.  The court stated that in enacting section 3135(2)(c), the Michigan Legislature had clearly and unambiguously provided that the failure to maintain the required insurance precludes recovery for non-economic damages.  Therefore, the Legislature has itself indicated that the same policy considerations in Ardt apply to the tort claims in the case at bar.

 The court acknowledged that the term “own vehicle” as used in section 3135(2)(c) is not defined.  Therefore, it was proper to look to the definition of “owner” as set forth in section 3101(2)(g), “inasmuch as the concepts of ‘owner’ and ‘own vehicle’ are similar.”  Moreover, the court held that it was more appropriate to utilize the definition of owner as set forth in section 3101, rather than the definition of “owner” as set forth in the Michigan Motor Vehicle Code (MCL 257.37) because it is “better to consider a definition contained within the Insurance Code than the Motor Vehicle Code when interpreting the Insurance Code.”  Accordingly, the court declined to use concepts of ownership that are derived from the Motor Vehicle Code definition of owner.

In reaching its conclusion, the Court of Appeals examined the facts closely and held that there was no genuine issue of material fact with regard to plaintiff’s use of her mother’s vehicle.  In that regard, the court stated:

“We agree with the trial court that there is no genuine issue of material fact that plaintiff had a ‘regular pattern of unsupervised usage,’ to establish a sufficient proprietary or possessory use of the vehicle for more than 30 days, thus coming within the definition of ‘owner’ under §3101.  By extension, we conclude that plaintiff was driving ‘her own vehicle’ at the time of the accident and, therefore, is precluded under§3135 from maintaining an action for non-economic damages due to her failure to maintain the required insurance.”

 With regard to the pattern of plaintiff’s unsupervised use, the court noted that plaintiff admitted that she “pretty much” had exclusive use of the vehicle for over a year; that she used the vehicle to go to work, transport her kids and for any other use that she needed it for; that her mother never used the vehicle during the time plaintiff used it; that plaintiff used the vehicle on a daily basis; that plaintiff kept the vehicle at her home; that plaintiff’s mother had purchased the vehicle largely for plaintiff’s use with the understanding that plaintiff would pay for gas, repairs and insurance on the vehicle and that plaintiff did not carry insurance.

Finally, the court rejected the argument that the references to “renting” and “lease” in section 3101(2)(g) somehow limit the meaning of “or having the use thereof” to commercial transactions only.  On the contrary, the court stated, “We believe that the use of the phrase suggests a Legislative intent to clearly go beyond commercial settings rather than to limit itself to only commercial settings.”  The court concluded that clearly the language used by the Legislature imposes the insurance obligation on drivers that “‘have complete custody of and control over the vehicles,’ which certainly describes plaintiff in the case at bar.”

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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