Roberts v. Titan Ins. Co. (On Recon.)

• Decision Date: 05 February 2009
• Docket Number: Docket No. 280776.
• Citation: 764 N.W.2d 304,282 Mich. App. 339
• Parties: ROBERTS v. TITAN INSURANCE COMPANY (ON RECONSIDERATION).
• Court: Court of Appeal of Michigan — District of US

764 N.W.2d 304

282 Mich. App. 339

ROBERTS v. TITAN INSURANCE COMPANY (ON RECONSIDERATION).

Docket No. 280776.

Court of Appeals of Michigan.

Submitted November 12, 2008, at Grand Rapids.

Decided February 5, 2009, at 9:00 a.m.

Jonathan W. Willoughby, PLC (by Jonathan W. Willoughby), Portage, for the plaintiff.

James, Dark & Brill (by John C. Fish), Kalamazoo, for the defendant.

Before: HOEKSTRA, P.J., and WHITBECK and TALBOT, JJ.

ORDER

The Court orders that the motion for reconsideration is granted, and this Court's opinions issued in this matter on December 4, 2008, are hereby vacated. A new majority opinion and the concurring opinion are issued with this order.

ON RECONSIDERATION

PER CURIAM.

In this first-party no-fault automobile insurance action, plaintiff Kyle Roberts, by his next friend and mother, Lillian Irwin, appealed as of right the trial court's order granting defendant Titan Insurance Company (Titan) summary disposition under MCR 2.116(C)(10). In our opinion issued December 4, 2008, we reversed but stated that, were it not for the statements in the lead opinion in Priesman v. Meridian Mut. Ins. Co.¹ that were adopted by this Court in Butterworth Hosp. v. Farm Bureau Ins. Co.,² we would have affirmed. Necessarily, our opinion of December 4, 2008, declared a conflict with Butterworth.³ The judges of this Court were polled pursuant to the court rule and an order was entered on December 18, 2008, directing that a special conflict panel would not be convened pursuant to MCR 7.215(J).⁴ Appellee's motion for reconsideration of our opinion was filed December 19, 2008. By order of this same date we grant reconsideration and issue this opinion on reconsideration in which we have changed only the bolded words in the paragraph on page. In all other respects, the opinion is unchanged, the result is unchanged, and any duty under MCR 7.215(J) has been disposed of through the poll that was previously conducted.

I. BASIC FACTS AND PROCEDURAL HISTORY

In June 2005, Roberts, at age 12, was seriously injured when he crashed a Ford Explorer into a tree. Roberts was intoxicated at the time of the accident. Following the accident, Roberts spent three weeks in the hospital and required follow-up care for months.

Steven Vandenberg, Roberts's and Irwin's landlord and housemate, was the title owner of the Explorer that Roberts was driving at the time of the accident. Irwin and Roberts moved into Vandenberg's home on or about May 1, 2005; they were looking for a place to live, and Vandenberg needed someone to take care of his dog when he went out of town. There is no dispute that Roberts was not legally or biologically related to Vandenberg. There is also no dispute that Roberts did not have permission to drive the Explorer on the day of the accident.

During his deposition, Vandenberg explained that when Irwin moved in he noticed that there was water spilling out from underneath Irwin's Jeep. According to Vandenberg, it turned out that the water pump was in need of repair. At that time, Vandenberg had three vehicles: the Explorer, a Ford Expedition, and a Jaguar. Because he drove the Expedition "all the time" and did not need to use the Explorer, he offered to let Irwin use the Explorer. Irwin thanked him, and he gave her the keys to the Explorer.

Vandenberg stated, to the best of his knowledge, that from May 2005 until the accident in June 2005, Irwin used the Explorer for all her daily needs. According to Vandenberg, Irwin did not pay him anything for the use of the Explorer, and they had no arrangement for the sale of the Explorer to Irwin. Vandenberg and Irwin also had no agreement regarding how long Irwin would be allowed to use the Explorer, but Vandenberg did not intend that Irwin have "permanent" use of the vehicle. Vandenberg agreed that, during the times that Irwin was not using it, he probably could have used the Explorer anytime that he wanted, but he explained that he would probably have asked Irwin for permission first "because [he] gave it to her to use." However, he also agreed that Irwin was using the vehicle with his permission and that he could have told her anytime that he did not want her to use the vehicle anymore. Vandenberg admitted that he did not tell his insurance carrier that Irwin was driving the Explorer.

Vandenberg testified that his insurance company "totaled out" the Explorer after the accident, but he was responsible for the $1,000 deductible, which he paid. Irwin agreed to pay back Vandenberg for the deductible, which he told her was only $500, to give her a break after "what she had been through with her son," but she never paid him.

During her deposition, Irwin testified that when Vandenberg gave her the Explorer to use, she felt that she owned it because she drove it all the time, she was the only person who used it, and all her stuff was in it. Irwin explained, "I just took it that it was mine and I could use it. I could go wherever I wanted. If I wanted to go to Georgia, I could go there. I could do anything in the vehicle." Despite her belief that she owned the Explorer, Irwin later admitted that she did not believe that she had the right to sell the vehicle because she knew she was not the title owner. Irwin confirmed that she did not pay Vandenberg for her use of the Explorer, nor was there any agreement that she pay him for her use. Irwin also admitted that Vandenberg never told her that she owned the Explorer. But, despite confirming that the Explorer was titled in Vandenberg's name and that he paid the insurance for it, Irwin stated that she did not believe Vandenberg had the right to tell her she could no longer use the vehicle because he "gave it to" her. Irwin stated that she paid all the general maintenance costs for the Explorer, including gas, oil, transmission fluid, and windshield washer fluid. Irwin also stated that if the Explorer had broken down, she would have paid for the repairs.

On further questioning, Irwin admitted that she lied to a Titan agent who interviewed her after the accident. When the agent asked her who had use of the Explorer before the accident, Irwin told him that Vandenberg had sole use of the vehicle. Indeed, she specifically denied ever driving the Explorer. Irwin explained that she lied because she did not want Vandenberg to "get in any trouble." However, she could not specify what kind of trouble she was worried about. Irwin confirmed that she agreed to pay Vandenberg $500 for the deductible, and although she planned to do so, she had not yet paid him. Irwin confirmed that she also lied to the Titan agent when she told him that she had already paid Vandenberg $500 for the deductible.

Roberts testified that when he took the Explorer on the night of the accident, he believed that it belonged to Irwin because "[s]he was always driving it around, had everything in it." Roberts stated that he had never driven any vehicle before, and he admitted that neither Irwin nor Vandenberg gave him permission to drive the Explorer on the night in question. Roberts also admitted that, after Irwin and Vandenberg had gone to bed on the night of the accident, he drank some tequila that he found in the kitchen cupboard. Roberts explained that after drinking the tequila he sat down to watch television and then noticed the car keys in the mesh pocket of Irwin's backpack, which was on the kitchen counter. Roberts could not explain exactly why he took the car. He stated that he just felt like going for a drive. Roberts stated that the next thing he remembered after pulling out of the driveway was waking up in the hospital.

Vandenberg testified that he did not know how Roberts obtained the keys to the Explorer on the night of the accident. Vandenberg stated that he had a spare set of keys for the Explorer that he kept "locked up," and that he did not know where Irwin kept the set of keys that he had given to her. Vandenberg also denied knowing where Roberts obtained the alcohol that he consumed that night, but he admitted that he noticed that some alcohol was missing from his home after the accident.

Although she stated that she often let Roberts start up the Explorer in the mornings, Irwin confirmed that she did not give Roberts permission to drive the Explorer on the night of the accident or at any other time before the accident. Irwin stated that she did not know that Roberts had taken the Explorer on the night of the accident until the police came to the house in the morning. Irwin stated that she normally kept her car keys in her backpack, her purse, or on a set of hooks near the back door. However, she did not know where she put the keys on the night of the accident.

At the time of the accident, Irwin was covered by a no-fault automobile insurance policy that Titan issued to her in March 2005. Irwin had initially purchased the policy to cover a Jeep Grand Cherokee, but in April 2005, she changed the policy to instead cover a Ford Escort. When she applied for the Escort coverage, Irwin provided Titan with a copy of the previous owner's title without any of the buyer information filled in. During her deposition, Irwin first claimed that the title to the Escort was in her name. However, Irwin later revealed that she did not own it and had never even driven the Escort at the time she sought the insurance coverage. Irwin also confirmed that the Escort was never stored at her house. Irwin explained that the Escort was for her son Vernon Austin, III. Irwin admitted during her deposition that she did not tell the Titan agent that she would not be using the Escort, or that Austin would be using it. However, she clarified that the agent did not ask her who would be using the car. A title search later revealed that the Escort was in fact titled in Austin's name. Irwin stated that she insured the Escort in her name because Austin needed insurance and he was not responsible enough to obtain it for himself.

Citing MCL 500.3113(a), Titan denied Roberts...