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Shankster v Farm Bureau Mutual Insurance Company of Michigan; (COA-UNP, 9/22/2009, RB #3087)

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Michigan Court of Appeals; Docket #284850; Unpublished
Judges Jansen, Fort Hood, and Gleicher; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion courthouse graphic


STATUTORY INDEXING:
Definition of a Motor Vehicle (General) [3101(2)(e)]
Definition of a Motor Vehicle (ORVs and ATVs) [3101(2)(g)]

TOPICAL INDEXING:
Legislative Purpose and Intent
Off-Road Recreational Vehicles and All Terrain Vehicles (ORVs and ATVs)


CASE SUMMARY:
In this unanimous unpublished per curiam opinion, on remand from the Michigan Supreme Court for consideration as on leave granted, the Court of Appeals determined that plaintiff was entitled to no-fault personal injury protection benefits for injuries sustained in an off-road vehicle accident, even though no “motor vehicle” was involved in the accident.

In affirming, the court noted that at the time of the accident, the definition of motor vehicle contained in MCL 500.3101(2)(e), did not specifically include or exclude ORVs in the definition of motor vehicle. However, effective July 17, 2008, the statute was amended to expressly provide that the term motor vehicle did not include an ORV. Defendant argued that under Nelson v Transamerica Insurance Services, 441 Mich 508; 495 NW2d 370 (1992), a person injured while a passenger or driver of an ORV is only entitled to PIP benefits if the injury occurred during a collision involving a motor vehicle. However, the court pointed out that the Nelson court stated that even though ORVs are exempt from the No-Fault Act insurance requirement, failure to carry insurance does not require the forfeiture of PIP benefits. Further, the court noted that in cases after Nelson, the court determined that an ORV may still qualify as a motor vehicle and that an ORV owner may be entitled to no-fault coverage even where the ORV is not specifically covered by an insurance policy.

The court then rejected defendant’s argument that the 2008 amendment should be applied retroactively. In determining that the amendment should be applied prospectively only, the court noted that the amendment would affect substantive rights. Under the earlier version of the statute, plaintiff had a right to payment of no-fault PIP benefits. However, under the amended statute, plaintiff would have no substantive right to PIP benefits. Therefore, the amendment would affect plaintiff’s substantive rights and, because the Legislature did not state that the amendment should be applied retroactively, the amendment must be enforced as written and applied prospectively from July 17, 2008. In this regard, the court stated:

Notably, the definition of ‘motor vehicle’ did not specifically include or exclude ORVs, although it limited the definition based on the number of wheels, the power source, and whether the vehicle could be driven on a public highway. Michigan law does, however, specifically state that ORVs are exempt from MCL 500.3101 to 500.3179, the provisions of the no-fault act. MCL 324.81106. . . .

Defendant points to the reasoning of Nelson for the proposition that an ORV is only entitled to PIP benefits if the injury occurred in a collision involving a motor vehicle. However, the Nelson Court stated that even though ORVs are exempt from the no-fault act insurance requirement, a failure to carry insurance does not cause a forfeiture of PIP benefits. Moreover, in cases following Nelson, this Court has ruled that an ORV may still qualify as a ‘motor vehicle’ for purposes of the Act, and that an ORV owner may be entitled to no-fault coverage even where the ORV is not specifically covered by an insurance policy. . . .

[W]e conclude for the following reasons that the 2008 amendment to the Act must be applied prospectively only. . . .

Here, the amendment to the Act would have an effect on substantive rights. Under the former statute, as interpreted, plaintiff had a right to the payment of no-fault PIP benefits. However, under the amended statute, plaintiff would have no substantive right to PIP benefits. Because this amendment would therefore affect a plaintiff’s substantive rights, and because the Legislature did not clearly state that the amendment should be applied retroactively, the amendment must be enforced as written and applied prospectively only from July 17, 2008.
(emphasis in original)


Lansing car accident lawyer 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 SinasDramis.com.

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