Bev Smith, Inc. v. Atwell

836 N.W.2d 872, 301 Mich. App. 670, 2013 Mich. App. LEXIS 1784
Michigan Court of Appeals·Decided July 18, 2013·No. Docket No. 308761·Published·Cited by 13 cases

Opinion

SAWYER, P.J.

This case presents what appears to be a question of first impression, namely whether a nonresident motorcyclist who is involved in an accident with a motor vehicle in this state is entitled to personal protection insurance (PIP) benefits when the insurer of the motorcycle involved in the accident has not filed a certification under MCL 500.3163, but the motorcyclist is also covered under an automobile policy issued by a different insurer, who has filed such a certification, for an automobile not involved in the accident. We hold that under these circumstances, the motorcyclist is entitled to PIP benefits.

The facts relevant to these appeals are not in dispute. Plaintiff was injured while riding his motorcycle on M-22 near Glen Arbor, Michigan, and was involved in a collision with a motor vehicle operated by Sara Kaplan. At the time of the accident, plaintiff was a resident of the commonwealth of Kentucky. The motorcycle was registered in Kentucky and insured by defendant Pro[661]*661gressive Northern Insurance Company. At the time of the accident, plaintiff also had motor vehicles in Kentucky-insured by defendants State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company (collectively “State Farm”). The Kaplan vehicle was insured by defendant Auto-Owners Insurance Company.

Plaintiff filed the instant action, seeking first-party no-fault benefits from all three insurance companies. The trial court granted State Farm’s and Progressive Northern’s motions for summary disposition. Plaintiff and Auto-Owners then filed cross-motions for summary disposition, with the trial court granting plaintiffs motion and denying Auto-Owners’ motion, ruling that Auto-Owners was obligated to pay Michigan no-fault benefits to plaintiff. Thereafter, the trial court also granted plaintiffs motion for attorney fees, interest, and costs. Auto-Owners now appeals.

We review de novo the trial court’s decision on summary disposition.1 Similarly, questions of statutory interpretation are reviewed de novo.2 We give the words used by the Legislature their plain and ordinary meaning.3

With respect to the PIP benefit claim in its first appeal, Auto-Owners’ sole argument is that plaintiff is not entitled to PIP benefits because the insurer of the motorcycle had not filed a certification in compliance with MCL 500.3163. MCL 500.3113(c) provides in relevant part as follows:

[662]*662A 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:
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(c) The person was not a resident of this state, was an occupant of a motor vehicle or motorcycle not registered in this state, and was not insured by an insurer which has filed a certification in compliance with section 3163.

Section 3163, MCL 500.3163, provides as follows:

(1) An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, is subject to the personal and property protection insurance system under this act.
(2) A nonadmitted insurer may voluntarily file the certification described in subsection (1).
(3) Except as otherwise provided in subsection (4), if a certification filed under subsection (1) or (2) applies to accidental bodily injury or property damage, the insurer and its insureds with respect to that injury or damage have the rights and immunities under this act for personal and property protection insureds, and claimants have the rights and benefits of personal and property protection insurance claimants, including the right to receive benefits from the electing insurer as if it were an insurer of personal and property protection insurance applicable to the accidental bodily injury or property damage.
(4) If an insurer of an out-of-state resident is required to provide benefits under subsections (1) to (3) to that out-of-state resident for accidental bodily injury for an accident in [663]*663which the out-of-state resident was not an occupant of a motor vehicle registered in this state, the insurer is only-liable for the amount of ultimate loss sustained up to $500,000.00. Benefits under this subsection are not recoverable to the extent that benefits covering the same loss are available from other sources, regardless of the nature or number of benefit sources available and regardless of the nature or form of the benefits.

It is undisputed that plaintiffs motorcycle insurer has not filed this certification, while his automobile insurer has filed a certification. The question to be resolved is whether it was necessary for the motorcycle insurer to have filed the certification in order for plaintiff to be eligible to receive PIP benefits because it was the motorcycle, and not plaintiffs automobile, that was involved in the accident. We agree with the trial court that it was not and that plaintiff is eligible to receive PIP benefits.

We turn first to the actual language of the statute. We find the terms of § 3113(c) plain and unambiguous: for plaintiff to be excluded from PIP benefits, all three conditions must be met. And the third condition has not been met. MCL 500.3113(c) precludes recovery if the out-of-state party “was not insured by an insurer which has filed a certification in compliance with section 3163.” The simple fact remains that plaintiff was insured by an insurer that had filed the required certification. Nothing in the statute requires that the insurer be the one that provided insurance for the vehicle involved in the accident. Indeed, as this Court observed in Farmers Ins Exch v Farm Bureau Gen Ins Co of Michigan,4 under the no-fault act “persons rather than vehicles are insured against loss.” And because plaintiff [664]*664is a person insured by a carrier that had filed a certification under § 3163, § 3113(c) does not exclude him from PIP benefits.

Auto-Owners cites two cases in support of its position, neither of which is particularly helpful in resolving this question. Auto-Owners cites Gersten v Blackwell5 for the proposition that the general purpose behind MCL 500.3113(c) is to “prevent benefits provided by Michigan’s scheme from going to someone who has not paid a premium for the same.” But Gersten did not deal with the situation in which the out-of-state party was occupying a vehicle insured by an “uncertified” insurer but also owned a vehicle insured by a “certified” insurer. Rather, it merely dealt with the question whether treating in-state and out-of-state residents differently posed a constitutional violation, which it concluded did not.6

Similarly, the other case relied on by Auto-Owners, Drake v Gordon,7

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Bev Smith, Inc. v. Atwell, 836 N.W.2d 872, 301 Mich. App. 670, 2013 Mich. App. LEXIS 1784 (Mich. Ct. App. 2013).

836 N.W.2d 872 (Bev Smith, Inc. v. Atwell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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