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Lyvere v Auto Owners Insurance Company; (COA-UNP, 10/17/1995; RB #1825)


Michigan Court of Appeals; Docket No. 169267; Unpublished  
Judges Saad, Bandstra, and Harrison; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   

Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]

Not Applicable    

In this unanimous unpublished per curiam Opinion, the Court of Appeals affirmed a jury verdict in favor of plaintiff for work loss benefits and found that the plaintiffs claim was not precluded by the "unlawful taking" provisions of §3113(a) of the act. The plaintiff in this case was an unlicensed minor who was driving his aunt's uninsured vehicle. The claim was assigned by the Assigned Claims Facility to defendant Auto Owners for processing.  

The Court of Appeals rejected the defendant's argument that the plaintiff was precluded from recovering benefits under the provisions of §3113(a) which prohibits payment of no-fault benefits to a person who is "using a motor vehicle which he had taken unlawfully." The court held that in this case, although the plaintiffs use of the vehicle was unlawful in the sense that the plaintiff was not licensed, the taking of the vehicle was not unlawful. The court stated:

".. .this Court had held that §3113(a) does not exclude coverage for an unlicensed driver who drives a vehicle with the owner's permission because 'it is the unlawful nature of the taking, not the unlawful nature of the use, that forms the basis of the exclusion under the statute.' Thus, while plaintiffs use of the vehicle in this case was unlawful, the vehicle was not taken unlawfully so as to preclude benefits under §3113(a)."

Judge Harrison, concurring separately, stated that the result in this case is contrary to sound public policy and should be reviewed by the Legislature.

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