Michigan Court of Appeals; Docket #305422; Published
Judges Donofrio, Krause, and Boonstra; 2-1 (Judge Krause concurring in part and dissenting in part); Per Curiam
Official Michigan Reporter Citation: 297 Mich App 679 (2012); Link to Opinion; Link to Dissent
On May 1, 2013, the Supreme Court directed the clerk to schedule mini oral argument on whether to grant leave to appeal; Link to Order
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]
In this 2-1 published per curiam Opinion by Judge Boonstra, Judge Krause concurring in part and dissenting in part, the Court of Appeals reversed a grant of summary disposition in favor of defendants, and found that the provisions of MCL 500.3113 did not preclude the plaintiff from receiving PIP benefits because under the circumstances presented, plaintiff did not “take the motorcycle unlawfully” within the meaning of the statute.
Plaintiff Rambin was injured while operating a motorcycle which collided with a car. Plaintiff had obtained the keys to the motorcycle from Andre Smith who told plaintiff that Smith owned the motorcycle and that plaintiff could use it. The motorcycle was in fact not owned by Smith and had been previously stolen from its rightful owner. When plaintiff sought PIP benefits, the defendant insurers argued that MCL 500.3113(a) precluded such benefits based upon the language of that statute which states:
“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.”
Upon appeal from the trial court granting summary disposition in favor of defendants, the Court of Appeals in a 2-1 opinion held that plaintiff did not “take the motorcycle unlawfully” under MCL 500.3113(a) and therefore reversed the trial courts finding of an unlawful taking under that statute. The Court stated that the record evidence indicates that plaintiff had every reason to believe that he had obtained the motorcycle from its rightful owner, and there were no countervailing considerations. In an extensive discussion of preceding case law leading to the recent Supreme Court decision in Spectrum Health Hospitals v Farm Bureau Mut Ins Co, et al and Progressive Marathon Ins Co v DeYoung, ____ Mich ____ (2012), (RB #3270), a case in which the Supreme Court addressed the judicially created “chain of permissive use” and “family joyriding exception” theories, the Court of Appeals here held that in construing § 3113(a), there must be focus on “the conduct of the injured person, i.e., the ‘he or she’ in question, some characteristic of ‘unlawful[ness] about that conduct, and some element of ‘intent’ on the part of the actor.”
The Court of Appeals majority opinion noted that Spectrum Health/Progressive Marathon (supra) had clarified several years of preexisting case law in which the provisions of § 3113(a) are avoided under what had come to be known as the “chain of permissive use” theory and the “family member joyriding exception.” The Court in the instant case held that MCL 500.3113(a) requires us to “examine the legality of the taking from the driver’s perspective,’ and further requires that the ‘end user’ driver has taken the vehicle ‘contrary to a prevision of the Michigan Penal Code.’ . . . In this case, there is no dispute that plaintiff did not take the vehicle in violation of the Michigan Penal Code, and that, viewed from plaintiff’s [the driver’s] perspective, there was no ‘unlawful taking.’”
The Court held that there was no genuine issue of material fact that plaintiff did not take the motorcycle unlawfully under § 3113(a) and therefore the first prong of the statutory analysis is not satisfied. Plaintiff was not the person who took the vehicle unlawfully. Plaintiff was a person who, with no unlawful intent and with no knowledge of any unlawful taking, used a vehicle another person may have taken unlawfully.
The Court further held that because the plaintiff did not take the vehicle unlawfully, it was not necessary to reach the second phase of analysis under § 3113(a). Under that clause, even if an injured person had taken a vehicle unlawfully, § 3113(a) does not apply if “the person reasonably believed that he or she was entitled to take and use the vehicle.” The Court did not need to decide that question given its ruling on the first part § 3113(a).
In her concurrence in part and dissent in part, Judge Krause agreed with the majority’s application of the Supreme Court’s recent decision in Spectrum Health (supra) to the facts of this case. However, Judge Krause dissented from the majority’s analysis of prior case law from decided prior to, and therefore without the benefit of, Spectrum Health. Judge Krause stated her belief that analysis of the preceding case law was unnecessary and, at best, dicta.