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Lock and Michigan Department of Community Health v Banks, et al and Continental Insurance Company and Continental Insurance Company v Gaskill, et al; (COA-UNP, 7/10/2003, RB #2394)


Michigan Court of Appeals; Docket Nos. 231355, 233832, and 233109; Unpublished
Judges Smolenski, White, and Wilder; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 

Disqualification for Intentionally Suffered Injury [3105(4)] 
Disqualification for Unlawful Taking and Use of a Vehicle [3113(a)] 
12% Interest Penalty on Overdue Benefits – Nature and Scope [3142(2) (3)]  

Revised Judicature Act – Tolling of Statutes of Limitations  

In this unanimous unpublished per curiam opinion, the Court of Appeals addressed whether the plaintiff’s injuries were accidental within the meaning of section 3105 of the No-Fault Act in a case where the plaintiff, Jimmy Lock, entered his former girlfriend’s vehicle without her permission, and then while traveling down the highway, grabbed the steering wheel, causing the vehicle to overturn which resulted in serious injury to Jimmy Lock.

In this combined claim for both no-fault benefits and third-party damages, the court addressed the conduct of Jimmy Lock with regard to coverage issues.

With respect to the no-fault benefits claim, Continental Insurance Company, which insured the vehicle in which Lock was a passenger, argued that Lock was disqualified from first-party no-fault benefits as a matter of law, under 3105, when he entered the vehicle with force and without permission, assaulted Gaskill, his former girlfriend who was driving, and grabbed the steering wheel, causing the vehicle to go out of control. The trial court denied Continental’s motion for directed verdict and, on appeal, the Court of Appeals upheld the trial court decision. In so doing, the court specifically rejected Continental’s argument that Frankenmuth Mutual Insurance Company v Masters, 460 Mich 105 (1999) and Nabozny v Burkhardt, 461 Mich 471 (2000) required application of an “objective” standard when assessing whether the injury was suffered intentionally within the meaning of section 3105(4) of the No-Fault Act which would thus exclude coverage. The Court of Appeals stated that section 3105 provides its own definition of “accidental” and in cases decided both before and after Masters and Nabozny, supra, our courts have approved the application of a “subjective test to the accidental injury requirement for PIP benefits under MCL 500.3105 of the No-Fault Act.” Under the Act, bodily injury is accidental unless suffered intentionally by the injured person or caused intentionally by the claimant.

Lock testified at trial that he did not intend to cause injury either to Gaskill or himself and that he grabbed the steering wheel because he wanted to pull the vehicle over to the shoulder so he could jump out. Gaskill testified that she did not know what Lock’s intent was in grabbing the steering wheel. Viewing the evidence and inferences in a light most favorable to Lock, reasonable minds could differ on the question of whether Lock intended to suffer or cause injury. Therefore, the trial court properly denied Continental’s motion for directed verdict.

Continental also argued that Lock was precluded by MCL 500.3113 from recovering PIP benefits, because he was using the vehicle unlawfully. That statute provides:

“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 . . . which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle.”

The court held that although Lock may have been in the car without permission, that did not establish that he had taken the vehicle unlawfully. A reasonable juror could have concluded that Lock did not steal or carjack the vehicle or take it unlawfully and, therefore, Continental’s motion for directed verdict on this basis was correctly denied.

Continental also challenged the award of penalty interest under the no-fault statute, claiming it was improper because the issue of whether plaintiff was covered under the policy was disputed. The Court of Appeals held that under 3142, penalty interest is to be paid on overdue benefits, and that there is no requirement that the insurer act unreasonably in failing to pay the benefits in a timely fashion.

The Court of Appeals also upheld the trial court’s award of RJA interest under MCL 600.6013(6). Relying on Attard v Citizens Insurance Company, 237 Mich App 311 (1999), the court stated that penalty interest under the No-Fault Act is a cost on which the plaintiff can collect pre-judgment interest under MCL 600.6013(6).

In a separate action filed by Gaskill against Lock for her injuries arising from the negligence of Lock in grabbing the steering wheel, Continental sought a declaration that it did not owe a duty to defend or indemnify Lock as a “covered person” under the policy providing coverage for the vehicle. Continental argued that under the “covered person” language of the policy, a covered person is defined as “any person occupying or using any covered motor vehicle with permission from you or a family member.”

Continental argued that the facts demonstrated that Lock had entered the vehicle without permission, and remained an occupant without the permission of Gaskill, the operator of the vehicle. Therefore, Continental argued that Lock was not a covered person because he was not a permissive occupant.

Gaskill testified that Lock had forced his way into her car and refused to leave when she asked him to leave. The Court of Appeals held that Gaskill’s deposition testimony conclusively established that Lock was not a permissive occupant of the vehicle while in route to the precinct. Therefore, Lock was not a covered person under the policy and there was no obligation by Continental to provide a defense or indemnity to Lock for the injuries caused to Gaskill.

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

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