Michigan Court of Appeals; Docket #314856; Unpublished
Judges Riordan, Donofrio, and Fort Hood; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam Opinion regarding a tort claim for noneconomic loss arising out of an accident in which plaintiff was driving an uninsured vehicle, the Court of Appeals held there was an issue of fact as to whether plaintiff was the “owner” of the vehicle under MCL 500.3101(2)(h) and thus disqualified under the provisions of §3135(2)(c). In so holding, the Court of Appeals said plaintiff’s “incidental usage” of the vehicle within the 30-day statutory time period did not necessarily equal “ownership” for purposes of applying the §3135 noneconomic loss exclusion for uninsured owners/operators.
Plaintiff was driving an uninsured car that he claimed belonged to his brother when he was in an accident. Plaintiff filed an action against defendants, the other vehicle’s driver and owner, for negligence. Defendants claimed that plaintiff had both possessory and proprietary use of the uninsured car, and therefore was precluded by §3135 from recovering noneconomic damages. Plaintiff alleged his brother owned the car, and so he could recover noneconomic damages. The trial court granted defendants’ motion for summary disposition.
Applying Detroit Medical Center v Titan Ins Co to the case, the Court of Appeals said:
“Considering plaintiff’s sporadic use of the car for which he had to obtain permission, defendants have not established that plaintiff used the vehicle on a regular basis over a 30-day period, let alone that plaintiff’s use was exclusive.”
Addressing defendants’ argument that plaintiff engaged in “repeated driving” of the uninsured vehicle over the course of a month or more, the Court of Appeals said the only evidence to support this assertion was plaintiff’s claim in his appellate brief that he drove the vehicle “several times” during the month before the accident. Therefore, the appeals court said this revealed merely “incidental usage” within the 30 days, and not “incidents of ownership.”
The Court of Appeals reversed the dismissal of plaintiff’s claim, finding the case was factually similar to Detroit Medical Center v Titan Ins Co, 284 Mich App 490 (2009). In that case, the court ruled that, under §3101(2)(h), the driver did not have use of the vehicle for more than 30 days because there was an agreement to “periodically lend” the vehicle to the driver and the permission given to use the vehicle was “sporadic.”
Accordingly, the Court of Appeals held there was a genuine issue of material fact about whether plaintiff was operating his own vehicle when the injury occurred, and remanded the case for further proceedings.