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Kaczmarek v Citizens Insurance Company of America and Roadway Services, Inc.; (COA-UNP, 12/9/1993; RB #1680)


Michigan Court of Appeals; Docket No. 140797; Unpublished  
Judges Brennan, Corrigan, and Anderson; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   

Coordination with Other Health and Accident Medical Insurance [§3109a]  
Coordination with ERISA Plans [§3109a]  
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]

Employee Retirement Income Security Act (ERISA – 29 USC Section 1001, et seq.)    

In this unanimous per curiam unpublished Opinion, the Court of Appeals reversed summary disposition in favor of plaintiff regarding her entitlement to no-fault personal injury protection benefits and affirmed summary disposition entered in favor of plaintiff’s medical benefits program provided by her employer under a self-funded ERISA plan.  

Plaintiff’s driver's license had been revoked for several alcohol related driving offenses. On December 21, 1989, plaintiff woke up late and missed her ride for work. She then went to her brother's house, took his car, and was involved in an accident while driving herself to her employment. The brother did not know plaintiff was using his car, nor had he given her permission to do so.  

At the time of the accident, plaintiff was living with her mother and therefore submitted a claim for no-fault benefits with Citizens, her mother's no-fault insurer. Plaintiff also made a claim for medical benefits from her employer, Roadway Services, Inc.

Plaintiff admitted that she did not have permission from her brother to operate his vehicle and on the basis of that admission, Citizens denied coverage. The no-fault insurer contended that §3113(a) excluded coverage. The trial court granted summary disposition against Citizens and held that a vehicle is not taken "unlawfully" as used in §3113(a) where the person using the vehicle is a family member of the vehicle owner, relying upon the Court of Appeals decision in Priesman v Meridian Mutual Insurance Company, 185 Mich App 123 (1990) (Item No. 1374). In the case at bar, however, the Court of Appeals noted that while Priesman was affirmed by the Michigan Supreme Court (441 Mich 244 [1992]) (Item No. 1571), no opinion of the court commanded a majority vote. As a majority of the Supreme Court did not adopt a "family member exception" to §3113, it cannot be said that plaintiff was entitled to summary disposition as a matter of law. The Court of Appeals held that a question of fact was presented as to whether plaintiff reasonably believed that she was entitled to take and use her brother's vehicle. In this regard, the court held that admissions made by plaintiff to an adjuster for Citizens prior to the insurer's denial of coverage that the brother probably would have objected to plaintiffs use of the vehicle were admissible.  

Secondly, the Court of Appeals upheld summary disposition granted in favor of defendant Roadway. Citizens, who had issued a coordinated no-fault policy to plaintiff’s mother, contended that Roadway, as plaintiff’s medical insurer, was primarily liable for plaintiff’s medical expenses arising from the accident, notwithstanding a coordination clause contained in the medical plan. However, the Michigan Supreme Court recently resolved this issue in Auto Club Insurance Association v Frederick & Herrud, Inc.,443 Mich 358 (1993) (Item No. 1608), and held that the coordination clause contained in a self-funded ERISA plan controls, making the medical plan secondary to a coordinated no-fault policy. Accordingly, summary disposition in favor of Roadway was affirmed.  

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