Rambin v. Allstate Ins. Co.

• Decision Date: 30 August 2012
• Docket Number: Docket No. 305422.
• Citation: 297 Mich.App. 679,825 N.W.2d 95
• Parties: RAMBIN v. ALLSTATE INSURANCE COMPANY.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 679

825 N.W.2d 95

RAMBIN

v.ALLSTATE INSURANCE COMPANY.

Docket No. 305422.

Court of Appeals of Michigan.

Submitted July 13, 2012, at Detroit.

Decided Aug. 30, 2012, at 9:00 a.m.

Donald M. Fulkerson, Westland, and Bruce K. Pazner, Grosse Pointe Park, for Lejuan Rambin.

Charles E. Griffiths, for Allstate Insurance Company.

Before: DONOFRIO, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

BOONSTRA, J.

Plaintiff, Lejuan Rambin, appeals as of right a circuit court order granting summary disposition to defendants Allstate Insurance Company and Titan Insurance Company in this action for no-fault automobile insurance benefits arising from a collision that occurred while plaintiff was operating a motorcycle. We reverse and remand for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

The material facts are undisputed. Scott Hertzog owned a motorcycle. The motorcycle was stolen on August 4, 2009. On August 22, 2009, Andre Smith told plaintiff that he had an extra motorcycle that plaintiff could ride for a motorcycle club event. Plaintiff went to Smith's house and Smith gave him the keys to Hertzog's stolen motorcycle. Smith told plaintiff that he owned the motorcycle and that plaintiff could use it for the scheduled event at 10:00 p.m. Plaintiff used the motorcycle to attend the social function. While driving the motorcycle to return it to Smith's house, plaintiff collided with a car and was injured.¹

Plaintiff filed this action for recovery of no-fault benefits, naming as defendants Allstate, the insurer of a motor vehicle owned by Hertzog, and Titan, which was assigned the claim by the Assigned Claims Facility pursuant to MCL 500.3172.² Both defendants moved for summary disposition. Applying what it believed to be controlling caselaw, the trial court agreed that plaintiff's claim was barred by MCL 500.3113(a), and granted defendants' motions.

This Court reviews de novo a trial court's decision on a motion for summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). We conclude, on the basis of our review of the text of MCL 500.3113(a) and the applicable caselaw, that the trial court erred by finding that defendants were entitled to summary disposition. Rather, we find that, under the circumstances presented, plaintiff did not take the motorcycle “unlawfully” within the meaning of MCL 500.3113(a), and that defendants therefore were not entitled to judgment as a matter of law under MCR 2.116(C)(10). Although we conclude that the trial court erred, we note that the error is understandable in light of the tortured path taken in the development of the relevant caselaw as explained later in this opinion.

II. MICHIGAN NO–FAULT EXEMPTION

Plaintiff challenges the trial court's ruling that MCL 500.3113(a) bars his recovery of no-fault benefits. MCL 500.3113 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. [Emphasis added.]

The applicability of this statute involves two inquiries. “[T]he first level of inquiry will always be whether the taking of the vehicle was unlawful.” Amerisure Ins. Co. v. Plumb, 282 Mich.App. 417, 425, 766 N.W.2d 878 (2009). This inquiry “necessarily entail[s] ascertaining whether the injured individual seeking coverage took the vehicle or engaged in the taking of the vehicle.” Henry Ford Health Sys. v. Esurance Ins. Co., 288 Mich.App. 593, 599, 808 N.W.2d 1 (2010).³ “If the taking was lawful, the inquiry ends because § 3113(a) does not apply.” Plumb, 282 Mich.App. at 425, 766 N.W.2d 878. However, if the injured individual unlawfully took the vehicle, the next step, under the “saving clause” of the statute, is to determine if that person “reasonably believed that he or she was entitled to take and use the vehicle.” MCL 500.3113(a). See also Plumb, 282 Mich.App. at 427, 766 N.W.2d 878.

In this case, the first level of inquiry involves whether a claimant who had taken possession of a vehicle with the mistaken belief that the owner had given consent (when in fact the person who had given consent was not the owner and was not authorized to give consent) “had taken” the vehicle “unlawfully,” within the meaning of MCL 500.3113(a). Our consideration of that question leaves us with the definite and firm conviction that the state of the law in this area has been hopelessly muddled and is in desperate need of clarity. It further, and once again, highlights for us the confusion and uncertainty that is created in the law when (a) legislatures craft statutory language without adequate specificity and definition, and (b) courts then create “judicial exceptions” to statutory schemes in order to fill in the blanks that were left by the legislature in drafting the statutory language that the courts are supposed to apply.

Our Supreme Court recently provided some clarity in this area in Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich., 492 Mich. 503, 821 N.W.2d 117 (2012). We endeavor herein to address and apply the statutory text to the facts before us, and also to appropriately apply the relevant caselaw, including the Supreme Court's recent decision in Spectrum Health, and thus to provide additional clarity in the context of the instant appeal.

A. STATUTORY CONSTRUCTION

As always, our statutory analysis begins with the language of the statute at issue. United States Fidelity Ins. & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing), 484 Mich. 1, 13, 795 N.W.2d 101 (2009). As noted earlier in this opinion, MCL 500.3113(a) excludes a person from the otherwise applicable entitlement to personal protection insurance benefits for accidental bodily injury (“PIP benefits”) if (a) “[t]he person was using a motor vehicle or motorcycle,” (b) “which he or she had taken unlawfully,” (c) “unless the person reasonably believed that he or she was entitled to take and use the vehicle.”

There is no question here that plaintiff “was using a ... motorcycle.” Id. Therefore, the first condition is satisfied.

Less clear is whether the motorcycle was one “which [plaintiff] had taken unlawfully.” Id. Unfortunately, the Legislature did not provide any definition of what “taken unlawfully” means, particularly in a context such as this. Given the lack of statutory definition, the courts have struggled ever since to provide the requisite definition in the various factual contexts in which the question has arisen.

Finally, and assuming that there was an unlawful taking, the question arises, under the “saving clause” of the statute, whether plaintiff had a reasonable belief that he was “entitled to take and use the vehicle.” Id. Again, given the lack of legislative definition, the courts have grappled with the meaning of “entitled to take and use,” and particularly whether, in the current context, “entitled to ... use” relates to authorization from the vehicle's owner (or perhaps another person) or additionally encompasses entitlement from the state (e.g., in terms of licensure or insurance). Id.

B. UNLAWFUL TAKING

By our reading of the statute, for a claimant to have “taken [a vehicle] unlawfully,” (a) a vehicle must have been “taken,” (b) the taking of the vehicle must have been “unlawful[ ],” (c) it must have been the injured claimant who took the vehicle unlawfully (by virtue of the statutory prefacing of the words “had taken unlawfully” with the identifier “he or she”), and (d) the injured person must therefore have both “taken” the vehicle and acted somehow “unlawfully” in doing so. Id.

Because “taken unlawfully” is legislatively undefined under the no-fault act, the courts have been left to discern whether the term means a taking that is (a) in violation of a criminal statute (and, if so, which ones), (b) without authorization of law, (c) without authorizationof any person, (d) without authorization of the vehicle's owner, or (e) something else. Our Supreme Court in Spectrum Health, 492 Mich. at 509, 821 N.W.2d 117, has now provided some guidance in that respect, holding that “any person who takes a vehicle contrary to a provision of the Michigan Penal Code [MCL 750.1 et seq.] ... has taken the vehicle unlawfully for purposes of MCL 500.3113(a).” The Court further found that “in this context, the term ‘unlawful’ can only refer to the Michigan Penal Code,” id. at 517 n. 22, 821 N.W.2d 117, and rejected the reasoning of prior caselaw that “did not address whether the end user of a vehicle violated the Michigan Penal Code”, id. at 510, 821 N.W.2d 117.⁴

In our view, taking into appropriate consideration the statutory language and the caselaw, including Spectrum Health, the term “taken unlawfully” as used in MCL 500.3113(a) thus requires some action by the “end user” of the vehicle that is contrary to the Michigan Penal Code. At the same time, we cannot agree with plaintiff's pre-Spectrum Health characterization that “Michigan courts have repeatedly and correctly concluded that determination of an unlawful taking under MCL 500.3113 rest [sic] on whether possession violated criminal statutes such as MCL 750.413 [taking possession of and driving away a motor vehicle] or MCL 750.414 [unauthorized taking or use of a motor vehicle without intent to steal].” Not only does the statutory text not expressly say that, but neither in our view did the caselaw, at least until the Supreme Court's recent opinion in Spectrum Health.⁵

While we, therefore, are unable to conclude that the pre-Spectrum Health caselaw supports plaintiff's interpretation, the Supreme Court in Spectrum Health held—consistently with plaintiff's position—that an unlawful taking under MCL 500.3113(a) requires action by the “end user” that is “contrary to a provision of...