Butterworth Hosp. v. Farm Bureau Ins. Co.

• Decision Date: 29 August 1997
• Docket Number: Docket No. 188374
• Citation: Butterworth Hosp. v. Farm Bureau Ins. Co., 570 N.W.2d 304, 225 Mich.App. 244 (Mich. App. 1997)
• Parties: BUTTERWORTH HOSPITAL, Plaintiff-Appellant, v. Floyd C. Wright, III, Defendant, and FARM BUREAU INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 304

570 N.W.2d 304

225 Mich.App. 244

BUTTERWORTH HOSPITAL, Plaintiff-Appellant, v. Floyd C. Wright, III, Defendant and FARM BUREAU INSURANCE COMPANY, Defendant-Appellee.

Docket No. 188374.

Court of Appeals of Michigan.

Submitted Feb. 5, 1997, at Grand Rapids.

Decided Aug. 29, 1997, at 9:15 a.m.

Released for Publication Nov. 25, 1997.

Miller, Johnson, Snell & Cummiskey, P.L.C. by Stephen R. Ryan, Grand Rapids, for Plaintiff-Appellant.

Dilley, Dewey & Damon, P.C. by Johnathan S. Damon, Grand Rapids, for Defendant-Appellee.

Before BANDSTRA, P.J., and HOEKSTRA and J.M. BATZER ^*, JJ.

BANDSTRA, Presiding Judge.

Plaintiff Butterworth Hospital appeals as of right from an order granting summary disposition in favor of defendant Farm Bureau Insurance Company. We reverse.

The facts of this case involving § 3113(a) of the no-fault act, M.C.L. § 500.3113(a); M.S.A. § 24.13113(a), are undisputed. On August 16, 1993, Floyd Wright, III, was injured while driving his mother's automobile without her permission. At the time of the accident, Wright lived in a mobile home situated approximately five hundred feet from his parents' mobile home. Several years before this accident, Wright was injured in an accident in which he sustained a head injury that led to a seizure disorder. On the basis of this disorder, his parents refused him permission to drive either of their automobiles. Nevertheless, Wright claimed that, from time to time, his mother gave him permission to drive two miles to and from the local store. It is stipulated for purposes of this appeal, however, that, on the day in question, Wright telephoned his mother at work, asked her permission to use her car, and she refused. Nevertheless, Wright took the car keys from his parents' mobile home, drove the car, and was involved in an accident in which he sustained injuries that were treated at Butterworth Hospital.

The car had been in disrepair, and Wright's parents had allowed the insurance on the car to lapse. Before this incident, the vehicle was repaired; however, the insurance was not reinstated. Pursuant to M.C.L. § 500.3172; M.S.A. § 24.13172, the Assigned Claims Facility named Farm Bureau Insurance Company to handle any no-fault claims arising from the accident. Butterworth Hospital then brought suit for unpaid medical bills for treatment to Wright for injuries arising out of the accident.

Both parties moved for summary disposition. Farm Bureau argued that M.C.L. § 500.3113(a); M.S.A. § 24.13113(a), which excludes coverage for an individual who "unlawfully" takes a vehicle, precluded coverage because Wright took the vehicle unlawfully. Butterworth argued that § 3113(a) was inapplicable because Wright had no intent to steal the car, but only intended to joyride in it. Therefore, Butterworth argued that Wright did not "unlawfully" take the car as that term is defined in Priesman v. Meridian Mut. Ins. Co., 441 Mich. 60, 490 N.W.2d 314 (1992). Farm Bureau responded that Priesman did not constitute a majority opinion and, therefore, it has no precedential value. Farm Bureau further contended that the present case is distinguishable from Priesman. The trial court granted summary disposition in favor of Farm Bureau. The trial court distinguished Priesman, finding that Wright was not entitled to coverage, not because he was unlawfully using the vehicle, but rather, because he was not, on the date of the accident, a member of the insured's household. This appeal followed. The parties maintain the same arguments on appeal.

Section 3113(a) of the no-fault act 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 or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle. [M.C.L. § 500.3113(a); M.S.A. § 24.13113(a) (emphasis added).]

The phrase "taken unlawfully" is not defined in the no-fault act itself but has been interpreted in Priesman, a case that addressed nearly the identical issue under very similar facts. ¹ Our Supreme Court considered whether an underage, unlicensed driver injured while driving his mother's automobile without her knowledge or consent could recover medical benefits from the no-fault insurer of the automobile. Priesman, supra at 61, 490 N.W.2d 314. The Court, in the lead opinion, concluded that § 3113(a), which precludes no-fault coverage for a person who, at the time of the accident, was using a vehicle that the person had "taken unlawfully," did not apply to teenagers joyriding in their parents' automobiles. Id. at 68, 490 N.W.2d 314. The Court reasoned that the legislative intent could not have been to deny coverage to joyriding family members, this being such a common occurrence:

Legislators generally are also parents and sometimes grandparents. Some may have had experience with children, grandchildren, nephews, nieces, and children of friends who have used a family vehicle without permission. Some may have themselves driven a family vehicle without permission. [Id.]

Accordingly, the lead opinion in Priesman found a "family member" joyriding exception to § 3113(a) of the no-fault act. Id. at 70, 490 N.W.2d 314 (Griffin, J., dissenting).

While recognizing that the lead opinion in Priesman was signed by only three justices and, therefore, is not binding upon this Court, Cox v. Dearborn Heights, 210 Mich.App. 389, 396, 534 N.W.2d 135 (1995), we also note that it affirmed the decision of our Court allowing coverage for a joyriding family member, Justice Boyle concurring in that result. Priesman, supra at 69, 490 N.W.2d 314. Although the precedential value of Priesman is, therefore, somewhat problematic, we feel compelled to follow it. We therefore conclude that § 3113(a), which excludes coverage for an individual who unlawfully takes a vehicle, does not apply to cases where the person taking the vehicle unlawfully is a family member doing so without the intent to steal but, instead, doing so for joyriding purposes. ² In the present case, because Wright was a family member joyriding rather than attempting to steal the car, he did not "unlawfully" take the car for purposes of § 3113(a) of the no-fault act and is thus not excluded from coverage under that provision.

Farm Bureau maintains that Wright unlawfully took the vehicle for three reasons that distinguish this case from Priesman. First, Wright not only took the car without the approval of the owner, but took it against the express prohibition of the owner and violated M.C.L. § 750.413; M.S.A. § 28.645 (unlawfully driving away a motor vehicle) or M.C.L. § 750.414; M.S.A. § 28.646 (use of a motor vehicle without authority but without intent to steal). However, the fact that Wright took it against the express prohibition of the owner does not raise his intent from that of borrowing, or joyriding in, the car to taking the car with the intent to steal. Even assuming that Wright's actions constituted a violation of one or both of these criminal statutes, that alone would not be sufficient to establish the intent to steal necessary to invoke the exclusion of § 3113(a) because neither of these crimes requires proof of intent to steal. People v. Laur, 128 Mich.App. 453, 340 N.W.2d 655 (1983); People v. Davis, 36 Mich.App. 164, 193 N.W.2d 393 (1971).

Second, Farm Bureau asserts that Wright took the vehicle unlawfully because he took it knowing that he was physically incapable of operating the vehicle safely and was not entitled to be a licensed driver. Farm Bureau argues that Wright was therefore driving recklessly in violation of M.C.L. § 257.626; M.S.A. § 9.2326 or driving feloniously under M.C.L. § 752.191; M.S.A. § 28.661. Further, Farm Bureau argues that Wright's taking of his mother's vehicle was unlawful because he knew that it was uninsured. Farm Bureau argues that Wright violated M.C.L. § 500.3102(2); M.S.A. § 24.13102(2), which makes it a misdemeanor to operate a motor vehicle on a public highway knowing that it is uninsured. Each of these arguments raises questions regarding the use of the vehicle by Wright, not the taking. However, it is the unlawful nature of the taking, not the unlawful nature of the use, that is the basis of the exclusion under § 3113(a). Bronson Methodist Hosp. v. Forshee, 198 Mich.App. 617, 627, 499 N.W.2d 423 (1993); State Farm Mut. Automobile Ins. Co. v. Hawkeye-Security Ins. Co., 115 Mich.App. 675, 682, 321 N.W.2d 769 (1982).

Third, Farm Bureau contends that Priesman is distinguishable because Wright is an adult and lived apart from his parents at the time of the accident. As noted above, the trial court distinguished Priesman on the basis that Wright was domiciled apart from his parents and found that Wright was therefore precluded from receiving no-fault benefits. However, the holding in Priesman was not based upon the fact that the driver in Priesman was a minor and domiciled with his parents; rather, it was based upon the fact that the driver was a family member who merely intended to joyride. Priesman, supra at 68, 490 N.W.2d 314. The fact that the driver in Priesman was the insured's son who lived at home with his parents was only relevant in determining which no-fault insurer would pay the benefits. See Priesman, supra at 65, n. 12, 490 N.W.2d 314. See, also, M.C.L. § 500.3114; M.S.A. § 24.13114, which provides that a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, the person's spouse, and a relative of either domiciled in the same household. ³ Therefore, those factual differences are distinctions without legal significance.

Additionally, Farm Bureau argues that the most important distinction between Priesman and the present case is that in Priesman the vehicle was insured and the claim was brought against...