Moore v. Ford Motor Credit Co., Docket No. 94546

• Decision Date: 14 March 1988
• Docket Number: Docket No. 94546
• Citation: 166 Mich.App. 100,420 N.W.2d 577
• Parties: Albert L. MOORE, by himself, and as Next Friend of Mark Adam Moore, Dawn Marie Moore, Albert Louis Moore, Jr., and David Scott Moore, Plaintiff/Cross-Defendant Appellee, and Butterworth Hospital, a Michigan nonprofit corporation, Mary Free Bed, a Michigan nonprofit corporation, Intervening Plaintiffs/Cross-Plaintiffs, v. FORD MOTOR CREDIT COMPANY, a Michigan corporation, Defendant/Cross-Defendant/Third-Party Plaintiff-Appellant. and MICHIGAN MUTUAL INSURANCE Company, a Michigan corporation, Defendant/Cross-Plaintiff, and Cigna Insurance Company, a corporation, Defendant/Cross-Defendant, v. ALLSTATE INSURANCE COMPANY, Third-Party Defendant-Appellee. 166 Mich.App. 100, 420 N.W.2d 577
• Court: Court of Appeal of Michigan — District of US

Page 577

420 N.W.2d 577

Albert L. MOORE, by himself, and as Next Friend of Mark Adam

Moore, Dawn Marie Moore, Albert Louis Moore, Jr.,

and David Scott Moore,

Plaintiff/Cross-Defendant

Appellee,

and

Butterworth Hospital, a Michigan nonprofit corporation, Mary

Free Bed, a Michigan nonprofit corporation, Intervening Plaintiffs/Cross-Plaintiffs, v. FORD MOTOR CREDIT COMPANY, a Michigan corporation,

Defendant/Cross-Defendant/Third-Party

Plaintiff-Appellant.

and

MICHIGAN MUTUAL INSURANCE Company, a Michigan corporation,

Defendant/Cross-Plaintiff, and Cigna Insurance Company, a corporation, Defendant/Cross-Defendant, v. ALLSTATE INSURANCE COMPANY, Third-Party Defendant-Appellee.

Docket No. 94546.

166 Mich.App. 100, 420 N.W.2d 577

Court of Appeals of Michigan.

Submitted Nov. 3, 1987.

Decided Feb. 1, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 101] Bergstrom, Slykhouse, Quinn & Vole, P.C. by Robert G. Quinn, Jr., Grand Rapids, for Albert L. Moore.

Cholette, Perkins & Buchanan by Robert J. Riley, Grand Rapids, for defendant Ford Motor Credit Co.

Nelson & Kreuger, P.C. by David L. Kreuger, Grand Rapids, for defendant Allstate Ins. Co.

Before WAHLS, P.J., and BEASLEY and BURRESS, ^* JJ.

BURRESS, Judge.

This is an appeal as of right from the Kent Circuit Court which granted partial summary disposition in favor of plaintiff Albert L. Moore, by himself and as next of friend of his children, Mark Adam Moore, Dawn Marie Moore, Albert Lewis Moore, Jr., and David Scott Moore.

On June 10, 1984, Darlene Moore, wife of Albert Moore, was driving a Ford Bronco which left the road and rolled over several times. The four previously named children were passengers in the vehicle and were injured in the accident.

Darlene Moore had leased the Ford Bronco from Jack Keller Ford, Inc., on January 23, 1984, and it subsequently assigned the lease to defendant Ford Motor Credit Company, the legal title holder.

Ford Motor Credit Company admitted that it was the owner of the Bronco when it answered the March 5, 1985, complaint which sought first-party no-fault benefits from it.

Ford Motor Credit Company denied ownership when answering a May 16, 1985, amended complaint which sought to hold it liable for the negligence of Darlene Moore under Sec. 401 of the civil liability act, M.C.L. Sec. 257.401 et seq.; M.S.A. Sec. 9.2101 et [166 MICHAPP 102] seq., on the grounds that plaintiff was the "owner" of the Bronco under M.C.L. Sec. 257.37; M.S.A. Sec. 9.1837.

The circuit court ultimately granted summary disposition in favor of plaintiff, finding that Ford Motor Credit Company was "an" owner of the vehicle based upon M.C.L. Sec. 257.37; M.S.A. Sec. 9.1837 and on defendant's admission of ownership contained in its answer to plaintiff's first-party no-fault benefits complaint.

DISCUSSION

Plaintiff seeks to impose liability on defendant under M.C.L. 257.401; M.S.A. Sec. 9.2101 (Sec. 401), which reads in pertinent part as follows:

"Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires."

"Owner" is defined in M.C.L. Sec. 257.37; M.S.A. Sec. 9.1837 (Sec. 37):

" 'Owner' means: (a) Any person, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period of greater than 30 days.

"(b) A person who holds the legal title of a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease [166 MICHAPP 103] thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner."

No Michigan appellate court has previously addressed the issue whether a lessor of a vehicle subject to a conditional lease such as the lease involved in the present case, which gives the lessee a right to purchase and an immediate right to possession, is an "owner" for purposes of the owner liability statute.

Matthews v. Wosek, 44 Mich.App. 706, 205 N.W.2d 813 (1973), which defendant vigorously contends was wrongly decided because Judge Levin misquoted Sec. 37, did not involve a conditional lease with a right to purchase. The portion of subsection (b) not quoted by Judge Levin, which begins with "or in the event," was therefore not pertinent. In Matthews, this Court determined that subsections (a) and (b) are not mutually exclusive, and that the lessee, who was an owner under subsection (a), was not the sole owner of the vehicle. Matthews, supra, p. 714, 205 N.W.2d 813.

Subsequent cases have construed Sec. 37 as including in the definition of "owner" persons who (1) have exclusive control over the vehicle for at least thirty days, (2) are named on the legal title of the vehicle, or (3) are conditional vendees, lessees, or mortgagors with immediate right to possession. Peters v. Dep't of State Highways, 66 Mich.App. 560, 564-565, 239 N.W.2d 662 (1976); Basgall v. Kovach, 156 Mich.App. 323, 327, 401 N.W.2d 638 (1986). Under this construction, the second portion of subsection (b), which begins "or in the event," is a third means of being deemed an owner of a [166 MICHAPP 104] vehicle. We believe that the second part of subsection (b) qualifies...