Landon v. Titan Ins. Co.

• Decision Date: 10 September 2002
• Docket Number: Docket No. 230596.
• Citation: 651 N.W.2d 93,251 Mich. App. 633
• Parties: Vickie L. LANDON, Plaintiff-Appellant, v. TITAN INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 93

251 Mich. App. 633

Vickie L. LANDON, Plaintiff-Appellant, v. TITAN INSURANCE COMPANY, Defendant-Appellee.

Docket No. 230596.

Court of Appeals of Michigan.

Submitted June 4, 2002, at Grand Rapids.

Decided June 14, 2002, at 9:00 a.m.

Released for Publication September 10, 2002.

Allaben, Vander Weyden, Timmer & Bandeen (by John R. Allaben), Grand Rapids, for the plaintiff.

Harvey Kruse, P.C. (by Gary L. Stec and Lanae L. Monera), Grand Rapids, for the defendant.

Before: JANSEN, P.J., and SMOLENSKI and WILDER, JJ.

SMOLENSKI, J.

In this first-party no-fault insurance benefits case, plaintiff appeals as of right from the trial court's grant of summary disposition in favor of defendant. We reverse and remand for further proceedings consistent with this opinion.

Plaintiff, Vickie Landon, was involved in an automobile accident on July 28, 1998, at the intersection of Sprinkle Road and Franklin Road in Kalamazoo, Michigan. At that time, plaintiff did not own her own vehicle, she carried no automobile insurance, and she did not live with any relative who carried automobile insurance. Further, at the time of the accident, plaintiff was driving a 1985 Buick automobile owned by her friend Janice Roe. Although the vehicle carried valid license plates, it was uninsured. Therefore, under M.C.L. § 500.3172, the Michigan Assigned Claims Facility named defendant to handle any no-fault claims arising from the accident.

Five months before the accident, in February 1998, Roe had allowed the insurance to expire on the Buick, through nonpayment of the premium. Roe decided to sell the vehicle because she was not driving it, it was uninsured, and she had two other vehicles. Because Roe lived in a rural area, she thought that more people would see the vehicle if it were parked in plaintiff's yard. Therefore, Roe obtained plaintiff's permission to park the vehicle in her yard. To the best of her recollection, Roe parked the vehicle in plaintiff's yard in late June or early July 1998, while plaintiff was not at home. Plaintiff testified that she returned from vacation shortly after the Fourth of July holiday, and that Roe's vehicle was parked in her yard when she returned.

Roe acknowledged that the vehicle was uninsured while parked in plaintiff's yard. However, she testified that plaintiff did not know about the vehicle's uninsured status. Roe testified that she tried to telephone plaintiff to inform her that the vehicle was uninsured, but she was never able to contact plaintiff with that information. Furthermore, both Roe and plaintiff testified that they never discussed whether plaintiff was permitted to use the vehicle while it was parked in plaintiff's yard. Therefore, Roe neither gave plaintiff express permission to use the vehicle, nor expressly prohibited plaintiff from doing so. However, during her deposition, Roe equivocated about whether she would have granted plaintiff permission to use the vehicle, had the two discussed the topic. On the one hand, Roe testified that she trusted plaintiff, and that she would not have had any problem loaning plaintiff her vehicle. On the other hand, Roe testified that she would have been concerned about the lack of insurance on the vehicle, and that she probably would have told plaintiff not to drive it for that reason.

Because Roe had only one set of keys to the vehicle, she left the vehicle unlocked and placed the keys under the floor mat. Roe intended that potential purchasers could use the keys to take the vehicle for a test-drive.¹ According to plaintiff, she did not believe that she was expected to accompany potential purchasers on test-drives. Rather, plaintiff believed that she could simply give potential purchasers the keys to Roe's vehicle. While plaintiff conceded that Roe probably did not expect her to use the vehicle herself, she also testified that, when she used the vehicle on the day of the accident, she did not think that Roe would have a problem with her driving it. Furthermore, plaintiff testified that she had probably driven Roe's vehicle on prior occasions, before Roe parked it in plaintiff's yard.²

In the trial court, defendant filed a motion for summary disposition, arguing that M.C.L. § 500.3113(a) prohibited plaintiff's claim for personal protection insurance (PIP) benefits because plaintiff had "unlawfully" taken Roe's vehicle on the date of the accident. The trial court agreed, concluding that plaintiff "did unlawfully take Ms. Roe's vehicle." The trial court reasoned that: (1) Roe had not given plaintiff express permission to use the vehicle, (2) plaintiff did not have any expectation that she could drive the vehicle, clearly understanding that the vehicle was on her property only to be sold, and (3) plaintiff was given the authority to allow potential buyers to test-drive the vehicle, but plaintiff was not herself a potential buyer and was not test-driving the vehicle at the time of the accident. On the basis of those facts, the trial court concluded that plaintiff "exceeded her authority and unlawfully took Ms. Roe's vehicle." Accordingly, the trial court granted defendant's motion for summary disposition, precluding plaintiff's claim for PIP benefits. Plaintiff appeals as of right from that order.

This Court reviews de novo a trial court's grant of summary disposition under MCR 2.116(C)(10). Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). We must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Id. Summary disposition is properly granted under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id.

Plaintiff first argues that the trial court erred in ruling, as a matter of law, that she had "unlawfully" taken Roe's vehicle for purposes of M.C.L. § 500.3113(a). The statute provides, in pertinent part:

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. [MCL 500.3113(a).]

Under this statutory provision, coverage for PIP benefits will be denied if "(1) a person takes a vehicle unlawfully and (2) that person did not have a reasonable basis for believing that she could take and use the vehicle." Mester v. State Farm Mut. Ins. Co., 235 Mich.App. 84, 87, 596 N.W.2d 205 (1999), citing Bronson Methodist Hosp. v. Forshee, 198 Mich.App. 617, 626, 499 N.W.2d 423 (1993). The trial court granted defendant's motion for summary disposition, primarily on the basis of a conclusion that plaintiff "did unlawfully take" Roe's vehicle on the day of the accident. Therefore, resolution of the present case turns on what it means to "unlawfully" take a vehicle in the context of subsection 3113(a).

The phrase "taken unlawfully" is not defined in the no-fault act itself. Mester, supra at 87, 596 N.W.2d 205; Butterworth Hosp. v. Farm Bureau Ins. Co., 225 Mich.App. 244, 247, 570 N.W.2d 304 (1997). However, defendant argues that there are two ways that a person can take another's vehicle "unlawfully," for purposes of subsection 3113(a). Defendant argues that a person can either violate M.C.L. § 750.413 (unlawfully taking possession of and driving away a motor vehicle), or a person can violate M.C.L. § 750.414 (use of a motor vehicle without authority but without intent to steal). Defendant argues that plaintiff violated both these statutory sections and is therefore barred from collecting PIP benefits under M.C.L. § 500.3113 (a).

MCL 750.413 sets forth the felony offense of taking possession of and driving away a motor vehicle belonging to another.³ The statute provides:

Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than five years. [MCL 750.413.]

The essential elements of this offense are: "(1) possession of a vehicle, (2) driving the vehicle away, (3) that the act is done wilfully, and (4) the possession and driving away must be done without authority or permission." People v. Hendricks, 200 Mich.App. 68, 71, 503 N.W.2d 689 (1993), aff'd 446 Mich. 435, 521 N.W.2d 546 (1994). See also People v. Andrews, 45 Mich.App. 354, 356, 206 N.W.2d 517 (1973).

The unlawful taking and driving away of a motor vehicle does not require an intent to steal, that is, to permanently deprive the owner of his property. See Hendricks, supra at 71, 503 N.W.2d 689; People v. Murph, 185 Mich.App. 476, 481, 463 N.W.2d 156 (1990); People v. Davis, 36 Mich.App. 164, 165, 193 N.W.2d 393 (1971). While the offense requires the specific intent to take possession of the vehicle unlawfully, it does not require an intent to steal the vehicle; the offense punishes conduct that does not rise to the level of larceny because an intent to permanently deprive the owner of the property is lacking. Mester, supra at 88, 596 N.W.2d 205. This Court has issued two decisions concerning whether a violation of M.C.L. § 750.413 qualifies as an "unlawful" taking and therefore allows application of the PIP benefits exclusion contained in M.C.L. § 500.3113(a). However, those decisions conflict. The Mester Court held that a violation of M.C.L. § 750.413 precludes an injured person from recovering PIP benefits under subsection 3113(a). Mester, supra at 88, 596 N.W.2d 205. In contrast, the Butterworth Court held that a...