Mutry v. Mich. Assigned Claims Plan

1

THEODORE MUTRY, Plaintiff-Appellant, v. MICHIGAN ASSIGNED CLAIMS PLAN and MICHIGAN AUTOMOBILE INSURANCE PLACEMENT FACILITY, Defendants-Appellees.

No. 360843

Court of Appeals of Michigan

May 18, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 21-006809-NF

Before: RICK, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

In this no-fault action, plaintiff, Theodore Mutry, appeals as of right the order granting summary disposition in favor of defendants, Michigan Assigned Claims Plan (MACP) and Michigan Automobile Insurance Placement Facility (MAIPF), under MCR 2.116(C)(10). Plaintiff argues he is entitled to personal protection insurance (PIP) benefits because he sustained bodily injury during a motor vehicle accident in which the vehicle was uninsured. On appeal, plaintiff argues the trial court erred in finding that he was the constructive owner of the uninsured motor vehicle for the requisite timeframe, and therefore, ineligible for PIP benefits. We reverse, finding that there is a question of fact as to whether plaintiff was a constructive owner. However, we affirm dismissal of MACP given caselaw that it lacks the capacity to be sued.

I. FACTUAL BACKGROUND

The car accident occurred on June 10, 2020. Just eight days earlier plaintiff accompanied his girlfriend Malisha Lucas (Lucas) to Legend Motors, where a 2015 Chevrolet Cruze was purchased. On the date of the accident, the vehicle was uninsured.

Because the vehicle was uninsured, plaintiff applied for PIP benefits with MACP. In his application he listed only Lucas as the owner of the 2015 Cruze. MACP refused to assign plaintiff's claim to an insurer.

On June 4, 2021, plaintiff filed a complaint against defendants for failing to approve his PIP benefits under MACP of the no-fault insurance act, MCL 500.3101 et seq. On August 31, 2021, defendants moved for summary disposition arguing that plaintiff's answers in his application for PIP benefits established that his use of the vehicle was consistent with constructive ownership, and therefore, he was not entitled to benefits.^[1] Specifically, it relied on his answers to some questions on the form, specifically that he used the vehicle daily, had access to a set of keys, put gas in the car, contributed money to its purchase or maintenance and gave himself permission to use the car.

On October 18, 2021, plaintiff responded, asserting it was impossible for him to have constructively owned the vehicle because he must have used it for at least 30 days. Plaintiff attached a CARFAX report that showed the vehicle was sold on June 2, 2020. And plaintiff attached a vehicle registration search listing Lucas as the lone registrant and owner of the car with registration and title dates of June 26, 2020.

On December 1, 2021, plaintiff appeared for his deposition.^[2] Plaintiff affirmed that he

• used the vehicle before the accident,

• had access to a set of keys,^[3]

• never had to ask permission to use the vehicle,^[4]

• had permission from himself to use the vehicle on the date of the accident, and

• the vehicle was not insured.

But contrary to his application, plaintiff testified that he did not use the vehicle daily; instead, he "drove it a couple times." When confronted with his earlier contrary answer on the application, plaintiff said he had "access to [the vehicle] daily" and, if he did not drive it, it was because he did not venture outside "or something like that." He testified that he did not provide any money toward the purchase of the vehicle but was not asked about whether he contributed to maintenance and he denied ever putting gas in the car. When confronted with his earlier answer that he had put gas in the car, plaintiff testified that he did not remember being asked that question.

Plaintiff further testified that Lucas had another vehicle, but "[s]he just didn't want [that] car anymore, so it was just in the driveway." Plaintiff did not own a car and did not even have a driver's license.^[5]

Plaintiff and Lucas never married; however, they lived together for 2% years with a baby girl and Lucas's young boys, whom plaintiff referred to as his stepsons. Lucas was employed as a caregiver for a family member and plaintiff worked for his stepfather, earning approximately $500 per week. Plaintiff did not disclose this employment on his application; instead, he listed a temporary staffing agency as his employer, and, again, reported earning $500 per week. At his deposition, plaintiff clarified that he had only worked for the agency for two days before COVID interfered. The agency never paid plaintiff for his labor.

Two days after plaintiff's deposition, the court directed defendants' attorneys to appear and address their knowledge, if any, about the vehicle's purchase history because "[t]he statute and case law are clear that the period of alleged constructive ownership must be greater than 30 days, [an] impossibility in this case [where the vehicle was owned for eight days]."

The defense attorneys swiftly responded to the court's order and asked that it be withdrawn. They contended that Twichel v MIC Gen Ins Corp, 469 Mich. 524; 676 N.W.2d 616 (2004), established that to be an owner one does not actually have to use the vehicle for 30 days; instead, there must only be an arrangement contemplating his or her use of the vehicle for a period greater than 30 days.

On December 9, 2021, the parties appeared for the hearing via Zoom. Defendants informed the court that plaintiff's deposition had been taken and the transcript was ordered on Friday and provided on the Monday before the hearing. Defendants represented that "in [plaintiff's] deposition [plaintiff] confirmed what he already told us as being accurate and truthful in his application,"^[6] which was the basis for defendants' summary disposition motion. More specifically, defendants explained that plaintiff "confirmed" that he and his girlfriend "had the vehicle [for] a week," "that he had access to [the] vehicle daily," and that "he did not have to seek permission [to use it] because that vehicle was there for his use." Defendants added: "And it confirms what [plaintiff] put in his application to us ...." Because defendants' summary disposition motion was well-grounded in both fact and law, defendants asked the court to grant it and to withdraw its December 3rd order.

The court noted that counsel had not cited Twichel in their earlier pleading, and, instead, relied on Adams v Curtis, unpublished per curiam opinion of the Court of Appeals, issued April 11, 2017 (Docket No. 330999).^[7] The court said it would review Twichel and afford plaintiff the opportunity to respond before it ruled.

In plaintiff's supplemental brief, plaintiff did not contest the facts, but argued that defendants did not proffer evidence to establish that plaintiff's use of the vehicle was part of an arrangement that permitted him to use the vehicle for a period longer than 30 days.

On December 16, 2021, the trial court issued its opinion and order, granting defendants' motion for summary disposition and determining that there was no question of fact on the issue of whether plaintiff was a constructive owner of the vehicle under Twichel. In reaching this conclusion, the court determined that "[b]ased upon Plaintiff's application for benefits and Plaintiff's deposition, the following facts are not in dispute:

• Plaintiff used the vehicle before the accident.

• Plaintiff used the vehicle daily.

• Plaintiff had access to a set of keys to the vehicle.

• Plaintiff never had to ask permission to use the vehicle.

• Plaintiff had never been denied permission to use the vehicle.

• Plaintiff put gas in the vehicle.

• Plaintiff paid money toward the purchase or maintenance of the vehicle.

• Plaintiff gave himself permission to use the vehicle.

• The vehicle was not insured."^[8]

In the court's view, those "facts demonstrate, and are unrebutted by Plaintiff, that there is no material question of fact that Plaintiff was the constructive owner of the vehicle and thus not entitled to benefits for the uninsured vehicle." Because the court previously, and erroneously, relied upon plaintiff's argument that the ownership had to be for greater than 30 days in entering its December 3, 2021 order, it reconsidered that order and withdrew it.

Plaintiff filed a motion for reconsideration. Again, plaintiff did not challenge the court's factual findings, but argued that Twichel was distinguishable and that "there was no purchase agreement, lease agreement, or other agreement, that by its terms gave the Plaintiff the right to use the subject vehicle for greater than 30 days" in this case.

Defendants responded to plaintiff's motion for reconsideration. Referencing plaintiff's application, defendants argued that the facts identified in the court's opinion were "unrebutted." Defendants asserted that every fact weighed in favor of finding that plaintiff was an owner of the uninsured vehicle and there was no genuine issue of material fact. Furthermore, there was evidence that plaintiff was going to be allowed to use the vehicle for at least thirty days because he "did not have to ask permission to use the vehicle," but "gave himself permission to use the vehicle." On top of that, plaintiff "used [the vehicle] daily," "paid for gas," and "paid for [the] maintenance or the purchase of the vehicle."^[9] Indeed, in plaintiff's "own words, he had just as much right to use that vehicle as his girlfriend." Given plaintiff's description of his use of the vehicle, the evidence indicated the couple's agreement had no time limit, and therefore, the burden shifted to plaintiff to offer evidence that their "relationship was anything but indefinite."

The register of actions reflects that the trial court heard and...