Dojcinovic v. Citizens Ins. Co. of the Midwest

• Decision Date: 01 February 2022
• Docket Number: Case No. 20-12134
• Citation: 583 F.Supp.3d 972
• Parties: The ESTATE OF Zeljko DOJCINOVIC, deceased, BY its Personal Representative Danes DOJCINOVIC, and The Estate, Asima Dojcinovic, deceased, by its Personal Representative Danes Dojcinovic, Plaintiffs, v. CITIZENS INSURANCE COMPANY OF THE MIDWEST, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

583 F.Supp.3d 972

The ESTATE OF Zeljko DOJCINOVIC, deceased, BY its Personal Representative Danes DOJCINOVIC, and The Estate, Asima Dojcinovic, deceased, by its Personal Representative Danes Dojcinovic, Plaintiffs,
v.
CITIZENS INSURANCE COMPANY OF THE MIDWEST, et al., Defendants.

Case No. 20-12134

United States District Court, E.D. Michigan, Southern Division.

Signed February 1, 2022

Jordan Alan Widner Barkey, Hunter C. Christopher, Michigan Auto Law, Farmington Hills, MI, for Plaintiffs.

Donald C. Brownell, Vandeveer Garzia, Troy, MI, Maxwell P. Sanders, Bagley & Langan P.L.L.C., Waterford, MI, for Defendant Citizens Insurance Company of the Midwest.

OPINION AND ORDER GRANTING DEFENDANT ACE'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT GREAT AMERICAN'S MOTION FOR SUMMARY JUDGMENT, AND DENYING DEFENDANT CITIZEN'S MOTION FOR SUMMARY JUDGMENT

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

583 F.Supp.3d 974

Plaintiff Decedents,¹ Michigan residents, were both killed when the tractor-trailer they were operating was involved in a crash on I-94 in Illinois. Plaintiffs brought this action against three different auto insurers seeking Personal Injury Protection ("PIP") benefits under Michigan's No-Fault Act. All three insurers have moved separately for summary judgment arguing, for various reasons, that they are not responsible for providing PIP benefits. After reviewing these three motions, the court finds a hearing unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the reasons provided below, the court will grant Defendant ACE's motion for summary judgment (ECF No. 41) and Defendant Great American's motion for summary judgment (ECF No. 28). However, the court will deny the motion for summary judgment (ECF No. 39) by Defendant Citizens—the insurer who provided coverage on the Plaintiffs’ personal vehicles registered in Michigan.

I. BACKGROUND

A. Factual Background

Plaintiff Decedents Zeljko Dojcinovic and Asima Dojcinovic were married and both self-employed commercial truck drivers who "owned"² a 2006 Freightliner tractor. (ECF No. 39, PageID.441.) Starting in September 2018, a corporation called Dark & Z, Co., presumably controlled by one or more of the Plaintiffs, leased the Freightliner to Elvis Services, Inc. ("Elvis") through an "Independent Contractor Operating Agreement." (ECF No. 41, PageID.697; ECF No. 41-3, PageID.781; ECF No. 41-4, PageID.801.) Elvis is a federally registered motor carrier based in Fort Wayne, Indiana. Such an arrangement is evidently common in the trucking industry.³ As part of the agreement, Dark & Z also agreed to "provide competent drivers" to haul Elvis's cargo. (ECF No. 41-3, PageID.782.)

Under the agreement, Dark & Z would be compensated at a set rate for milage and reimbursed for certain other expenses incurred while operating. (Id. , PageID.788.) An addendum to the agreement also provided that the "Carrier shall provide

583 F.Supp.3d 975

public liability insurance and property damage insurance for the [tractor] at all times while the [tractor] is being operated on behalf of the Carrier," and Dark & Z, as an independent contractor, "shall procure, carry and maintain public liability and property damage insurance which shall provide coverage to the Independent Contractor whenever the [tractor] is not being operated on behalf of the carrier." (Id. , PageID.791.)

On August 3, 2019, Zeljko was driving, and Asima was a passenger in the Freightliner, which was under the dispatch of Elvis, and transporting a load of dunnage from Ford Motor Company's Chicago Assembly plant to YAPP, an auto supplier located in Gallatin, Tennessee. (ECF No. 28, PageID.214; ECF No. 28-1, PageID.226.) Only a short distance from the Ford plant, Plaintiffs were killed in a crash on I-94 in Calumet City, Illinois. The circumstances of the accident are not relevant to the court's analysis.

In June 2020, Plaintiffs’ estates commenced the present litigation in Wayne County Circuit Court by bringing a single breach of contract claim against the three Defendant insurers. (ECF No. 1-1, PageID.15-17.) The complaint, which was subsequently removed to federal court, alleges that the Defendants had a "contractual and/or statutory duty" to provide Plaintiffs with no-fault PIP benefits under Michigan's No-Fault Act.⁴ (Id. ) It indicates that Plaintiffs had applied for and been denied no-fault benefits by all Defendants. (Id. )

Each Defendant here issued an automotive insurance policy that, they admit, was in effect at the time of the 2019 crash, but each argues that it is not responsible for paying PIP benefits in the present scenario for a different reason.

B. ACE Liability Policy

Defendant ACE issued a motor carrier insurance policy to Elvis that it concedes provided coverage on the Freightliner at the time of the accident. (ECF No. 41, PageID.697-98; ECF No. 41-2, PageID.722-78.) But ACE contends the policy provided liability coverage—$ 1 million—to the tractor alone. (ECF No. 41, PageID.698.) The policy identified Elvis as a motor carrier located in Fort Wayne, Indiana, and the policy includes several Indiana-specific endorsements. (ECF No. 41-2, PageID.760-74.) Instead of listing the different vehicles covered by ACE, the policy includes a "composite rate endorsement" that calculates the "final premium" owed by Elvis based on the "the average number of autos" that Elvis "own[ed] including autos you lease or borrow for a period of 6 months." (Id. , PageID.734.) (Plainly, such an endorsement allows adding and dropping leased tractors from coverage without making formal changes to its insurance.) The policy's fee schedule includes a spot for marking the coverage selection. The part of the schedule where a premium would be listed for any personal injury protection coverage is left blank:

583 F.Supp.3d 976

SCHEDULE A

 Extra Heavy Truck Tractors Estimated Number 22
                 Rate Per "Auto" Personal Rate Per "Auto" Physical Rate Per "Auto" Rate Per "Auto"
                 Liability $4,104.00 Injury Damage:
                 Protection Comprehensive
                 Physical
                 Rate Per "Auto" Medical Rate Per "Auto" Physical Damage:
                 UM/UIM Payments Damage-Specified Collision
                 $59.00 Perils
                 Truck (Zone Rated) Estimated Number 16
                 Rate Per "Auto" Personal Rate Per "Auto" Physical Rate Per "Auto" Rate Per "Auto"
                 Liability $7,134.00 Injury Damage:
                 Protection Comprehensive
                 Physical
                 Rate Per "Auto" Medical Rate Per "Auto" Physical Damage:
                 UM/UIM Payments Damage-Specified Collision
                 $59.00 Perils
                

(Id. , PageID.735.)

Because the relevant portion of the schedule is unmarked, Defendant ACE argues it cannot be responsible for providing PIP benefits not bargained for under the terms of the insurance policy it issued. Alternatively, Defendant argues that because "Zeljko and Asima Dojcinovic were independent contractors," even if ACE's policy included PIP benefits, it would not be first in the "order of priority" to provide such benefits. (Id. , PageID.703-04.)

C. Great American...