Amerisure Insurance v. Plumb

766 N.W.2d 878, 282 Mich. App. 417
CourtMichigan Court of Appeals
DecidedFebruary 10, 2009
DocketDocket 276384
StatusPublished
Cited by35 cases

This text of 766 N.W.2d 878 (Amerisure Insurance v. Plumb) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amerisure Insurance v. Plumb, 766 N.W.2d 878, 282 Mich. App. 417 (Mich. Ct. App. 2009).

Opinions

K. F. Kelly, J.

In this no-fault insurance case, defendant/cross-defendant/counterplaintiff/cross-plaintiff Rae Louise Plumb appeals1 the trial court’s order granting summary disposition in favor of plaintiff/ counterdefendant Amerisure Insurance Company, and the order denying Plumb’s motion for reconsideration, [420]*420which ultimately denied Plumb personal protection insurance (PIP)2 benefits. The issue raised on appeal requires us to determine the requisite showing a claimant must make under MCL 500.3113(a) in order to obtain PIP benefits. We affirm and hold that § 3113(a) precludes PIP benefits when a motor vehicle is (1) taken unlawfully and the claimant has failed to show (2) that the claimant reasonably believed that he or she was entitled to “take” the vehicle and (3) that the claimant reasonably believed that he or she was entitled to “use” the vehicle.

I. BASIC FACTS AND PROCEEDINGS

Plumb arrived at a bar near Caro, Michigan, about 11:30 p.m. one evening, socializing and consuming alcohol with several men. A couple of hours later, David Shelton drove a Jeep Cherokee to the same bar and parked it in the parking lot. Shelton did not maintain insurance on the Jeep, and although he had entered into an agreement to purchase the Jeep several months earlier, he was not the titled owner. Shelton left his keys in the Jeep, and he did not usually lock his car doors. Plumb and Shelton did not know one another, and during the time they were both in the bar, they never spoke to one another. Shelton did not give Plumb the keys or permission to drive the Jeep, and she did not receive the keys or permission from the titled owner. Plumb left the bar with two men, one of whom she described as Caucasian and wearing a baseball cap and a goatee. Plumb claimed that the unidentified man with the baseball cap and goatee handed her the keys to the [421]*421Jeep and asked her to drive because he was on probation. Plumb, who did not maintain automobile insurance and did not reside with a relative who carried automobile insurance, was intoxicated, and her driver’s license had been suspended. Shelton left the bar shortly after Plumb and discovered that the Jeep was missing.

Later that morning, Plumb was found lying in a field near the bar, having sustained severe burn injuries. In a deep drainage ditch about 250 yards away from Plumb, the police found Shelton’s Jeep, which had been totally consumed by fire. Plumb suffers from a closed-head injury and posttraumatic stress disorder and does not recall all the events leading up to the accident or the accident itself. The police determined that the Jeep had been driven away from the bar across a mowed field and an unmowed hayfield, struck an electric transformer, and ultimately crashed into the drainage ditch. In the mowed field near the parking lot, there were several other sets of tire tracks. The police concluded that Plumb had been driving the Jeep and was its sole occupant.

Defendant/cross-plaintiff/cross-defendant State Farm Mutual Automobile Insurance Company insured the titled owner of the Jeep on the date of the accident. Plumb submitted an application to the Michigan Assigned Claims Facility (MACF), seeking PIP benefits under the no-fault act, MCL 500.3101 et seq. Pursuant to MCL 500.3172, the MACF assigned Plumb’s PIP claim to Amerisure. Amerisure filed a complaint against Plumb and State Farm, seeking a declaratory judgment that Plumb was not entitled to PIP benefits pursuant to MCL 500.3113(a) when the Jeep was taken unlawfully and when Plumb did not have a reasonable belief that “she was entitled to take and use the vehicle.” It further asserted that State Farm was a higher priority insurer than Amerisure pursuant to [422]*422MCL 500.3114(4)(a). State Farm filed a cross-claim against Plumb, also seeking a declaration that Plumb was not entitled to PIP benefits pursuant to § 3113(a). Plumb filed a counterclaim against Amerisure and a cross-claim against State Farm, claiming that they had both wrongfully denied her PIP benefits.

Amerisure moved for summary disposition of its claim against Plumb pursuant to MCR 2.116(C)(10), claiming that she was not entitled to PIP benefits. Amerisure argued that § 3113(a) precluded benefits because there was no genuine issue of material fact that Plumb had unlawfully taken the Jeep without a reasonable belief that she was entitled to take and use it. In reply, Plumb requested summary disposition, arguing that she had not taken the Jeep unlawfully and that she had reasonably believed that she was entitled to take the Jeep. Amerisure and State Farm both requested summary disposition of Amerisure’s claim against State Farm, raising arguments regarding whether State Farm’s insured, the titled owner, had an ownership interest in the Jeep at the time of the accident and whether State Farm was a higher priority insurer than Amerisure. State Farm also adopted Amerisure’s arguments with respect to § 3113(a) and requested summary disposition of Plumb’s cross-claim against State Farm. The trial court granted Amerisure summary disposition, concluding that MCL 500.3113(a) applied and that Plumb was not entitled to PIP benefits because she had unlawfully taken the vehicle. The trial court also ruled that Plumb had presented mere conjecture and speculation with respect to how she received permission to drive the Jeep and that Plumb had not had a reasonable belief that she was entitled to take and use the Jeep.

Plumb moved for reconsideration, asserting that the trial court had engaged in improper fact-finding regard[423]*423ing whether she had been given the keys to the Jeep. On reconsideration, the trial court held that, even assuming Plumb had permission to drive the Jeep, she was not entitled to drive it because she did not have a driver’s license and was intoxicated. Accordingly, the trial court held that Plumb was not entitled to PIP benefits. The trial court subsequently entered a judgment dismissing Plumb’s cross-claim against State Farm and her counterclaim against Amerisure.

On appeal, Plumb argues that the trial court erred in granting summary disposition because it engaged in impermissible fact-finding and erroneously construed MCL 500.3113(a). We agree that the trial court engaged in impermissible fact-finding and that there was a genuine issue of material fact regarding whether Plumb reasonably believed that she was entitled to take the Jeep. However, we affirm the trial court’s order granting summary disposition because there is no genuine issue of material fact that Plumb did not have a reasonable belief that she was entitled to “use” the Jeep, within the meaning of § 3113(a).

II. STANDARDS OP REVIEW

We review de novo a trial court’s decision regarding a motion for summary disposition. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “We review a motion brought under MCR 2.116(0(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Id. We also view all legitimate inferences in the light most favorable to the nonmoving party. Houdek v Centerville Twp, 276 Mich App 568, 572-573; 741 NW2d 587 (2007). Summary disposition under MCR 2.116(0(10) is properly granted when “[e]xcept as to the amount of damages, there is no [424]

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Cite This Page — Counsel Stack

Bluebook (online)
766 N.W.2d 878, 282 Mich. App. 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amerisure-insurance-v-plumb-michctapp-2009.