state of michigan in the supreme court riverview macomb home · ann arbor, mi 48107...

STATE OF MICHIGAN

IN THE SUPREME COURT

WALTER SAKOWSKI, as Conservator for MAEGAN TURNER, (Jessica Jacobs),

SC No. ____________ Plaintiff, COA No. 339624

and LC No. 16-002031-NF (Wayne Circuit Court)

RIVERVIEW MACOMB HOME & ATTENDANT CARE, LLC,

Intervening Plaintiff, v

FARMERS INSURANCE EXCHANGE,

Defendant/Cross-Plaintiff/Cross-Defendant-Appellee, and

ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, and EAN HOLDINGS, LLC,

Defendants/Cross-Defendants-Appellants, and

TAMERA HARPER,

Defendant/Cross-Defendant and

GARY DUANE RUPP, as Personal Representative for the ESTATE OF JASON PUCKETT,

Defendant/Cross-Plaintiff/Cross-Defendant, v

PATSY VILLNEFF,

Cross-Defendant. / Consolidated With

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JONTE EVERSON, SC No. _______________

Plaintiff, COA No. 339815 v LC No. 16-359-NF

(Washtenaw Circuit Court) FARMERS INSURANCE EXCHANGE,

Defendant/Third-Party Plaintiff-Appellee, and

ENTERPRISE LEASING COMPANY,

Third-Party Defendant-Appellant. /

NOTICE OF FILING APPLICATION

APPLICATION FOR LEAVE TO APPEAL BY ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, EAN HOLDINGS, LLC AND

ENTERPRISE LEASING COMPANY FROM CONSOLIDATED COA DOCKET NOS. 339624 AND 339815

INDEX OF EXHIBITS

EXHIBITS A-O

PROOF OF SERVICE/STATEMENT REGARDING E-SERVICE

PLUNKETT COONEY

By: Robert G. Kamenec (P35283) Hilary A. Ballentine (P69979) Attorneys for Appellants Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC and Enterprise Leasing Company 38505 Woodward Ave., Suite 100 Bloomfield Hills, MI 48304 (248) 901-4068

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STATE OF MICHIGAN











TAMERA HARPER,




PATSY VILLNEFF,


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NOTICE OF FILING APPLICATION

TO: Michigan Court of Appeals Clerk Via TrueFiling Electronic Filing

Wayne County Circuit Court M-File Electronic Filing

Washtenaw County Circuit Court Courthouse, 101 E. Huron P.O. Box 8645 Ann Arbor, MI 48107

Defendants-Appellants Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC

and Enterprise Leasing Company state that on May 28, 2019, their application for leave to

appeal and accompanying documents were filed with the Michigan Supreme Court.

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Respectfully submitted,

PLUNKETT COONEY

By: /s/Robert G. Kamenec Robert G. Kamenec (P35283) Hilary A. Ballentine (P69979) Attorneys for Appellants Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC and Enterprise Leasing Company 38505 Woodward Ave., Suite 100 Bloomfield Hills, MI 48304 (248) 901-4068

Dated: May 28, 2019

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STATE OF MICHIGAN











TAMERA HARPER,




PATSY VILLNEFF,


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APPLICATION FOR LEAVE TO APPEAL BY ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, EAN HOLDINGS, LLC AND


PLUNKETT COONEY

By: Robert G. Kamenec (P35283) Hilary A. Ballentine (P69979) Attorneys for Appellants Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC and Enterprise Leasing Company 38505 Woodward Ave., Suite 100 Bloomfield Hills, MI 48304 (248) 901-4068

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TABLE OF CONTENTS

PAGETABLE OF CONTENTS........................................................................................................................ i

TABLE OF AUTHORITIES .................................................................................................................. iii

STATEMENT OF THE QUESTION PRESENTED ................................................................................. vii

STATEMENT IDENTIFYING ORDER APPEALED AND GROUNDS FOR SUPREME COURT REVIEW .. viii

STATEMENT OF FACTS .................................................................................................................... 1

A. Introduction. ........................................................................................................................ 1

B. Statement of material facts. ................................................................................................ 3

1. Turner v Farmers, et al. .................................................................................................... 3

2. Everson v Farmers, et al. .................................................................................................. 4

C. The Court of Appeals’ Majority Opinion. ............................................................................. 6

D. The Dissenting Opinion ........................................................................................................ 8

ARGUMENT ................................................................................................................................... 10

THIS COURT SHOULD PEREMPTORILY REVERSE THE COURT OF APPEALS OPINION OR ALTERNATIVELY GRANT LEAVE TO APPEAL TO CLARIFY THAT, CONSISTENT WITH PARKS V DAIIE, 426 MICH 191, 206, 211; 393 NW2D 833 (1986), A VEHICLE OWNER MAY NOT BE HELD LIABLE FOR PAYMENT OF PERSONAL PROTECTION INSURANCE BENEFITS UNDER MCL 500.3114(4)(A) WHEN AN INVOLVED VEHICLE IS “NOT REQUIRED TO BE REGISTERED IN MICHIGAN AND [IS] NOT SUBJECT TO THE SECURITY PROVISIONS OF THE NO-FAULT ACT,” THUS RENDERING INAPPLICABLE THE PRIORITY PROVISIONS SET FORTH IN MCL 500.3114 WHICH APPLY “ONLY IN THE CASE IN WHICH THE INSURED VEHICLE IS REQUIRED TO BE REGISTERED IN THIS STATE,” WHEN: ............. 10

(1) IT WAS UNCONTESTED THAT THE INVOLVED VEHICLES AT ISSUE IN THIS CASE WERE NOT REGISTERED NOR REQUIRED TO BE REGISTERED IN THIS STATE (THEY WERE REGISTERED IN OTHER STATES); AND .......................................... 10

(2) FARMERS FAILED TO PRESENT COMPETING EVIDENCE THAT THE INVOLVED VEHICLES WERE OPERATED IN MICHIGAN, FOR MORE THAN 30 DAYS IN A CALENDAR YEAR. ......................................................................................... 10

A. Standard of review and supporting authority. .................................................................. 10

B. Introduction – summary. ................................................................................................... 11

C. Governing law. ................................................................................................................... 13

D. Argument: EAN does not qualify as “[t]he insurer of the owner or registrant of the vehicle occupied,” under which Farmers seeks to assign first order of priority. ....... 15

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1. Application of subsection 3114(4) is subject to the “more complete requirement” that the vehicles be “required to be registered in this state,” which they are not; thus EAN cannot be considered the insurer of the “owner or registrant of the vehicle[s]” under the priority provision of subsection 3114(4)(a). ..................................................................................................................... 15

a. The interplay between sections 3101 and 3114. ...................................................... 15

b. Parks v DAIIE .............................................................................................................. 16

c. Heichel v GEICO .......................................................................................................... 18

d. The Majority Opinion in Turner/Everson ................................................................... 19

e. The Majority Opinion improperly expands the scope of section 3114(4)(a) beyond the insurer of the motor vehicle involved in the accident. .......................... 23

f. The “more complete requirement” of Parks is supported by other jurisdictions’ no-fault acts. ........................................................................................ 25

2. The Majority Opinion’s interpretation of the no-fault act is incomplete and inaccurate. ..................................................................................................................... 27

3. The Majority Opinion does not meaningfully distinguish Parks under the language of the no-fault act. ......................................................................................... 33

4. The case law cited by the Majority Opinion is inapposite and fails to distinguish Parks and its progeny. ................................................................................................... 37

5. Self-insured approval does not trump the terms of section 3101(1). ........................... 38

6. EAN, as an alleged self-insured for non-Michigan registered vehicles, cannot be considered “the insurer” of the “owner or registrant” of the involved vehicles under section 3114(4)(a). .............................................................................................. 39

7. Farmers does not contend it is outside of the order of priorities of section 3114(4). .......................................................................................................................... 41

E. Conclusion. ........................................................................................................................ 41

RELIEF REQUESTED ....................................................................................................................... 43

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TABLE OF AUTHORITIES

PAGE

MICHIGAN CASESCovington v Interstate Sys,

88 Mich App 492; 277 NW2d 4 (1979) ................................................... viii, xi, 2, 8, 9, 12, 13, 21

Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005) .......................................................................................... x

Farmers Ins Exch v Farm Bureau General Ins Co, 272 Mich App 106; 724 NW2d 485 (2006) .......................................... 6, 9, 20, 22, 31, 32, 37, 41

Grand Rapids v Crocker, 219 Mich 178; 189 NW 221 (1922) ........................................................................................... 30

Heichel v GEICO Indemnity Co, Court of Appeals Docket Nos. 323818, 324045, rel’d March 1, 2016 (unpublished); 2016 WL 805524; lv den 500 Mich 921; 888 NW2d 84 (Mem) (2016) .................................................................................... ix, xi, 2, 4, 18, 19, 21, 30, 36, 37, 38

In re MCI Telecom Complaint, 460 Mich 396; 596 NW2d 164 (1999) ....................................................................................... 31

Maiden v Rozwood, 461 Mich 109; 597 NW2d 817 (1999) ....................................................................................... 10

McMullen v Citizens Ins Co, Court of Appeals Docket No. 332373; 2017 WL 2562545 (rel’d 6/13/2017) (unpublished) ...................................................................................................................... 20, 36

O’Connell v Director of Elections, 316 Mich App 91; 891 NW2d 240 (2016) ................................................................................. 28

Oade v Jackson National Life Insurance Company, 465 Mich 244; 632 NW2d 126 (2001) ....................................................................................... 10

Parks and Covington v Interstate Sys, 88 Mich App 492; 277 NW2d 4 (1979) ......................................................................................... vii, viii, ix, x, xi, xii, 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 25, 30, 33, 34, 35, 36, 37, 38, 39, 40, 42

People v Feeley, 499 Mich 429; 885 NW2d 223 (2016) ....................................................................................... 31

People v Juntikka, 310 Mich App 306; 871 NW2d 555 (2015) ............................................................................... 31

Shavers v Kelley, 402 Mich 554; 267 NW2d 72 (1978) .......................................................................................... xii

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State Farm Mut Auto Ins Co v Ruuska, 412 Mich 321; 314 NW2d 184 (1982) ....................................................................................... 32

State Farm Mut Auto Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978) ......................................................................................... 32

Sun Valley Foods Co v Ward, 460 Mich 230; 596 NW2d 119 (1999) ....................................................................................... 28

Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986) ....................................................................................... 30

Titan v American Country Insurance Company, 312 Mich App 291; 876 NW2d 853 (2015) ............................................................................... 37

Turner by Sakowski v Farmers Ins Exch, --- NW2d ---; 2019 WL 1648159 ......... viii, x, xii, xiii, 1, 2, 3, 6, 9, 12, 16, 17, 19, 20, 21, 24, 42, 3

Vitale v Auto Club Ins Ass’n, 233 Mich App 539; 593 NW2d 187 (1999) ............................................................................... 10

FEDERAL CASESBormes v United States,

759 F3d 793 (CA 7, 2014) .......................................................................................................... 29

Burrage v United States,134 S Ct 881 (2014) ................................................................................................................... 33

Commissioner v Lundy,516 US 235, 116 S Ct 647, 133 L Ed2d 611 (1996) .................................................................... 33

Household Credit Servs, Inc v Pfenning, 541 US 232 (2004) ..................................................................................................................... 22

Kokoszka v Belford, 417 US 642 (1974) ..................................................................................................................... 31

Lamie v US Trustee,540 US 526 (2004) ..................................................................................................................... 33

Mertens v Hewitt Assocs,508 US 248 (1993) ..................................................................................................................... 33

Michigan v Bay Mills Indian Community, 134 S Ct 2024 (2014) ................................................................................................................. 28

Republic of Argentina v Weltover, Inc,504 US 607 (1992) ..................................................................................................................... 33

Robbins v Chronister,435 F3d 1238 (CA 10, 2006) ...................................................................................................... 33

Smith v United States,

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508 US 223 (1993) ..................................................................................................................... 22

Sundance Associates, Inc v Reno, 139 F3d 804 (CA 10, 1998) ........................................................................................................ 29

United States v Turkette, 452 US 576 (1981) ..................................................................................................................... 31

Util Air Regulatory Group v EPA,134 S Ct 2427 (2014) ................................................................................................................. 28

OUT-OF-STATE CASESGreen v Budget Rent A Car Corp,

857 A2d 1031 (Del Super Ct 2004) ............................................................................................ 27

Julian v Johnson, 438 So2d 503 (1983) ........................................................................................................... 25, 26

Nationwide Ins Co v Battaglia, 410 A2d 1017 (Del 1980) .......................................................................................................... 26

Protective National Insurance Company of Omaha v Padron, 310 So.2d 432 (Fla. 3d DCA 1975)............................................................................................. 25

STATUTES1956 PA 218, § 3101 ..................................................................................................................... 23

Fl St § 627.736(1) .......................................................................................................................... 26

Fla Stat Ann 627.731 (West) ......................................................................................................... 25

Florida’s no-fault act, ss. 627.730-627.7405................................................................................. 25

MCL 257.243 ................................................................................................................................. 16

MCL 257.243(1) ....................................................................................................................... 27, 29

MCL 3.161 ..................................................................................................................................... 16

MCL 3.163 ..................................................................................................................................... 16

MCL 500.3004 ............................................................................................................................... 29

MCL 500.3006 ............................................................................................................................... 29

MCL 500.3008 ............................................................................................................................... 29

MCL 500.3009 ............................................................................................................................... 29

MCL 500.3012 ............................................................................................................................... 29

MCL 500.3101(1) ... xii, 2, 5, 6, 7, 8, 13, 14, 16, 17, 19, 21, 22, 24, 27, 28, 29, 30, 31, 34, 36, 37, 38

MCL 500.3101(2)(d) ................................................................................................................... xii, 6

MCL 500.3101(4) ..................................................................................................................... 39, 40

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MCL 500.3113(b) ..................................................................................................................... 24, 31

MCL 500.3114(1) ..................................................................................................................... 13, 24

MCL 500.3114(3) ................................................................................................................. 8, 34, 35

MCL 500.3114(4) ................ 1, 2, 3, 6, 7, 8, 10, 11, 13, 14, 15, 20, 22, 23, 25, 30, 33, 34, 35, 39, 41

MCL 500.3114(4)(a) .......................................................................................................................... vii, viii, 2, 3, 6, 7, 8, 11, 12, 13, 14, 15, 17, 19, 21, 22, 23, 24, 30, 32, 34, 35, 39, 41

MCL 500.3114(4)(b) ...................................................................................................................... 14

MCL 500.3114(5) ................................................................................................................. 9, 18, 20

MCL 500.3114(5)(b) ...................................................................................................................... 18

MCL 500.3172 ............................................................................................................................... 33

MCL 500.3173 ............................................................................................................................... 31

Section 627.733(2), Florida Statutes (1981) ........................................................................... 25, 26

RULESMCR 2.116(C)(10) ............................................................................................................................ 4

MCR 2.116(C)(8) .............................................................................................................................. 4

MCR 7.205(C)(2) .............................................................................................................................. 9

MCR 7.305(B) ................................................................................................................................ viii

MCR 7.305(B)(3) ............................................................................................................................. xii

OTHER AUTHORITIES1979-1980 Mich Op Atty Gen 396 (1979) ..................................................................................... 23

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STATEMENT OF THE QUESTION PRESENTED

WHETHER THIS COURT SHOULD PEREMPTORILY REVERSE THE COURT OF APPEALS OPINION OR ALTERNATIVELY GRANT LEAVE TO APPEAL TO CLARIFY THAT, CONSISTENT WITH PARKS V DAIIE, 426 MICH 191, 206, 211; 393 NW2D 833 (1986), A VEHICLE OWNER MAY NOT BE HELD LIABLE FOR PAYMENT OF PERSONAL PROTECTION INSURANCE BENEFITS UNDER MCL 500.3114(4)(A) WHEN AN INVOLVED VEHICLE IS “NOT REQUIRED TO BE REGISTERED IN MICHIGAN AND [IS] NOT SUBJECT TO THE SECURITY PROVISIONS OF THE NO-FAULT ACT,” THUS RENDERING INAPPLICABLE THE PRIORITY PROVISIONS SET FORTH IN MCL 500.3114 WHICH APPLY “ONLY IN THE CASE IN WHICH THE INSURED VEHICLE IS REQUIRED TO BE REGISTERED IN THIS STATE,” WHEN:

(1) IT WAS UNCONTESTED THAT THE INVOLVED VEHICLES AT ISSUE IN THIS CASE WERE NOT REGISTERED NOR REQUIRED TO BE REGISTERED IN THIS STATE (THEY WERE REGISTERED IN OTHER STATES); AND

(2) FARMERS INSURANCE EXCHANGE FAILED TO PRESENT COMPETING EVIDENCE THAT THE INVOLVED VEHICLES WERE OPERATED IN MICHIGAN FOR MORE THAN 30 DAYS IN A CALENDAR YEAR?

Farmers Insurance Exchange says “no.”

Enterprise Leasing Corporation of Detroit, LLC, and EAN Holdings, LLC, say “yes.”

The respective trial courts presumably say “yes.”

The Michigan Court of Appeals Majority Opinion says “no.”

The Michigan Court of Appeals Dissenting Opinion says “yes.”

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STATEMENT IDENTIFYING ORDER APPEALED AND GROUNDS FOR SUPREME COURT REVIEW

Defendants-Appellants appeal from the April 16, 2019 published, 2-1 opinion and order

of the Court of Appeals in which two judges of the court reversed the trial court’s grant of

summary disposition to Enterprise Leasing Corporation of Detroit, LLC and EAN Holdings, LLC

(collectively, “EAN”) in these consolidated appeals on the basis that the priority provision of

MCL 500.3114(4)(a) applies to a “self-insurer” of the motor vehicle’s “owner or registrant,”

regardless of whether the particular vehicle involved in the accident was required to be covered

by no-fault security under MCL 500.3101(1) or MCL 500.3102(1). Turner by Sakowski v Farmers

Ins Exch, --- NW2d ---; 2019 WL 1648159, *11 (Exhibit A) (“the Turner Opinion” or “the Majority

Opinion”).

The Dissent Opinion1 found that Parks and Covington v Interstate Sys, 88 Mich App 492;

277 NW2d 4 (1979) (relied upon by the Parks court), reasoned that self-insured out-of-state

owners for which there was no obligation to pay no-fault first-party benefits under MCL

500.3101 or under 500.3102 are not subject to the priority provisions of 500.3114 (Exhibit B).

Pursuant to MCR 7.305(B), it is incumbent upon the applicants to demonstrate one or

more of the factors set forth in that rule to justify Supreme Court review. This application

satisfies the criteria for Supreme Court review on several fronts. First, the Majority Opinion

detrimentally affects the jurisprudence of no-fault insurance law in the state of Michigan

because it deviates from well-established precedent from this Court, and other panels of the

Court of Appeals. In Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191, 206; 393 NW2d 833

1 Redford, J.

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(1986), this Court held that the priority provisions of MCL 500.3114 apply “only in the case in

which the insured vehicle is required to be registered in this state.” In the case before it, the

Parks court concluded that the vehicle owner could not be held liable for payment of personal

injury protection (“PIP”) benefits because the involved vehicle “was not required to be

registered in Michigan and was not subject to the security provisions of the no-fault act.” The

Parks court explained that “the plain language of [MCL 500] § 3101 subjects only those vehicles

required to be registered in this state to the mandatory security requirements.” 426 Mich at

206.

Despite the clear holding of Parks, different judges of the Court of Appeals who have

considered this reoccurring issue have interpreted and applied Parks differently, leading to

inconsistent and conflicting results which EAN has experienced firsthand. In Heichel v GEICO

Indemnity Co, Court of Appeals Docket Nos. 323818, 324045, rel’d March 1, 2016

(unpublished); 2016 WL 805524 (Exhibit C), lv den 500 Mich 921; 888 NW2d 84 (Mem) (2016),

the panel2 found, consistent with Parks, that EAN was not subject to the no-fault security

requirements of MCL 500.3101 with respect to a vehicle neither registered nor required to be

registered in Michigan (in Heichel, the vehicle was registered in North Carolina) and when the

involved vehicle had not been operated in Michigan for more than 30 days in a calendar year.

This Court denied leave to appeal in Heichel, despite the insurers’ assertions that Parks was

incorrectly decided. 500 Mich 921; 888 NW2d 84 (2016) (Exhibit C). Yet in the instant case,

2 Gleicher, P.J., and Jansen and Shapiro, JJ.

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EAN received a completely contradictory opinion wherein two different judges3 of the Court of

Appeals concluded that EAN was first in priority for payment of first party no-fault benefits

even though the vehicles owned by EAN were neither registered nor required to be registered

in Michigan. (Exhibit A, Turner Majority Opinion).

This split of authority leaves EAN and its counsel and similarly situated entities with no

way in which to accurately predict how another panel of the Court of Appeals will rule on this

particular issue in the future. Of the six Court of Appeals judges to have addressed this specific

issue as to EAN, four have agreed with EAN, and two have disagreed. The panel that will decide

EAN’s pending appeal in Advanced Surgery Center, LLC v EAN Holdings, LLC (COA Case No.

346081)4 is currently unknown; however, the outcome of an appeal should not turn on which

three-judge panel is drawn. The civil justice system is founded on predictability in the rule of

law. See Devillers v Auto Club Ins Ass’n, 473 Mich 562; 592-93; 702 NW2d 539 (2005).

Application of this Court’s precedent in Parks should be uniformly applied across the state’s

trial and intermediate appellate courts.

Second, this issue is not just limited to EAN; it affects rental car companies across the

State, which frequently raise this issue when their rented motor vehicles are involved in an

accident in Michigan but are not registered nor required to be registered in Michigan because

they do not meet the 30-day threshold under MCL 500.3102(1). Until the Turner Opinion was

released, rental car companies have generally been successful at the trial court level in

obtaining a ruling that they are not in any order of priority for payment of no-fault benefits

3 Cavanagh, P.J., and Borrello, J.

4 EAN filed its appellee brief on May 15, 2019.

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(absent operation for more than 30 days in the state) – a result which is mandated under a

proper interpretation of Parks. For instance, Avis Budget Car Rental, LLC (“Avis Budget Group,

LLC” or “Avis”) recently obtained summary disposition on this exact issue in the Wayne County

Circuit Court. (Exhibit D, Almurisi v Avis Budget Car Rental, LLC, Wayne County Circuit Court

Case No. 18-004875, 1/17/19 Order Granting Defendant’s Motion for Summary Disposition, and

4/15/19 Order Denying Plaintiff’s Motion for Reconsideration). PV Holding Corporation d/b/a

Avis Budget Group, LLC, similarly obtained summary disposition on the basis that the vehicle in

question was not operated for more than 30 days in a calendar year and was registered in

another state, and thus was not subject to the no-fault act, in Walton v PV Holding Corporation

d/b/a Avis Budget Group, LLC, et al (Wayne County Circuit Court Case No. 18-009945-NI)

(Exhibit E, Order Granting Defendant PV Holding Corporation d/b/a Avis Budget Group, LLC’s

Motion for Summary Disposition, 3/6/19; Exhibit F, Opinion and Order Denying

Reconsideration, 4/2/19) (Judge Strong of the Wayne County Circuit Court citing Parks and

holding that “to be subject to the requirements of the no-fault act the vehicle in question must

be registered in this state or operated here for more than 30 days in a calendar year…Thus, it

simply does not matter whether this vehicle was or was not covered by insurance. Rather,

what matters is whether the vehicle was subject to the no-fault act.”). Yet conflicting published

and unpublished opinions at the Court of Appeals level, including Covington v Interstate Sys, 88

Mich App 492, 494; 277 NW2d 4 (1979), Heichel, and now, the Turner Opinion, leave Avis at a

loss as to how a particular panel of the Court of Appeals will decide the appeal filed earlier this

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month in Almurisi (MCOA No. 348805)5 and the anticipated appeal in Walton.

Third, left unaddressed by this Court, the split of authority at the Court of Appeals level

will trickle down to the state’s trial courts, producing inconsistent and incorrect results.

Already, plaintiffs are relying on the Turner Opinion to argue that rental car companies who are

self-insureds pursuant to MCL 500.3101(2)(d) are insurers within the meaning of MCL 500.3114

and are the highest in priority for payment of PIP benefits. (Exhibit G, Harris v Avis Budget Car

Rental, LLC, Case No. 18-004125-NF, Intervening Plaintiff’s Motion for Partial Summary

Disposition Against Defendant Avis Budget Car Rental Regarding Order of Priority, 4/29/19);

(Exhibit H, Walton v PV Holding Corporation d/b/a Avis Budget Group, LLC, et al, Case No. 18-

009945-NI, Intervening Plaintiff’s Supplemental Authority in Support of Motion for

Reconsideration, 4/26/19). The propriety of a published Court of Appeals opinion which directly

conflicts with this Court’s precedent, and its application by the state’s trial courts, is

undoubtedly an issue of major significance to the state’s jurisprudence. MCR 7.305(B)(3).

Michigan’s no-fault act was adopted in 1972. The Legislature’s intent in passing the no-

fault act was clear: each person who owns a vehicle required to be registered in Michigan must

obtain automobile insurance as required under the act. See MCL 500.3101(1); Shavers v Kelley,

402 Mich 554, 593; 267 NW2d 72 (1978). This Court held in Parks that where a vehicle is not

required to be registered in Michigan, it is not subject to the act’s priority provisions; thus, a

rental car company which owns and/or self-insures the motor vehicle involved in the accident is

not responsible for the payment of no-fault benefits if it was not required to be registered in

5 The claim of appeal in Almurisi was filed by the plaintiff on May 6, 2019.

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Michigan under MCL 500.3102(1). The Turner Majority Opinion’s rationale for finding Parks

inapplicable (discussed in detail, infra) is flawed and should be corrected by this Court, either

through peremptory reversal or a grant of leave to appeal. If this error is left uncorrected,

rental companies may be forced to pay claims for benefits which the Legislature never

intended, evidenced by its express limitation that motor vehicles neither registered in Michigan

nor operated in Michigan for more than 30 days in a given calendar are not subject to security

for payment of no-fault benefits. MCL 500.3101(1); MCL 500.3102(1).

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STATEMENT OF FACTS

A. Introduction.

In Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191, 206; 393 NW2d 833 (1986), this

Court made clear that the priority provisions of MCL 500.3114 apply “only in the case in which

the insured vehicle is required to be registered in this state.” Where a vehicle is not required to

be registered in this state, it is not subject to the mandatory security requirements. Id. As such,

the Parks court held that the plaintiff’s personal automobile insurer, rather than the vehicle’s

insurer, bore liability for the payment of PIP benefits when:

(1) The plaintiff was injured in an employer’s out-of-state vehicle;

(2) Which was not required to be registered in Michigan under the motor vehicle registration act;

(3) And accordingly the vehicle was not subject to the security provisions of the no-fault act when the vehicle had not been operated in the state for more than 30 days within the calendar year.

Id. at 207. With respect to the priority provision at issue in this case, MCL 500.3114(4), the

Parks court specifically reasoned that its application is subject to the “more complete

requirement” of section 3101(1), which limits the obligation to provide security to a vehicle

“required to be registered” in Michigan. 426 Mich at 202-203, n 3.

In these consolidated actions, Turner6 and Everson,7 the facts presented fall squarely

within the Parks’ holding and rationale. Farmers Insurance Exchange (“Farmers”) contended

6 Turner v Farmers Insurance Exchange v Enterprise Leasing Corporation of Detroit, LLC and EAN Holdings, LLC, et al., Wayne County Circuit Court No. 16-002031-NF.

7 Everson v Farmers Insurance Exchange v Enterprise Leasing Company, Washtenaw County Circuit Court No. 16-359-NF.

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that EAN Holdings, LLC (“EAN”)8 is first in priority to pay no-fault benefits to the respective

claimants as the “[t]he insurer of the operator of the vehicle occupied” under MCL

500.3114(4)(a). Here, neither of the vehicles was registered nor required to be registered in

Michigan (in Turner, the EAN vehicle was lawfully registered in Maryland; in Everson, the EAN

vehicle was lawfully registered in Pennsylvania). Only vehicles that must be registered in

Michigan are subject to the requirements of the no-fault insurance act. MCL 500.3101(1)

(“[t]he owner or registrant of a motor vehicle required to be registered in this state shall

maintain security for payment of benefits under [PIP]…” (emphasis supplied)); Covington v

Interstate Sys, 88 Mich App 492, 494; 277 NW2d 4 (1979).

The position adopted by the Turner Majority is contrary to the express words of the

Michigan Legislature in various provisions of the no-fault act. The opinion of the Turner

Majority is also contrary to the reasoning and holding of Parks and Covington. Another panel of

the Court of Appeals also considered this same issue and reached a result contrary to Turner in

Heichel v GEICO Indemnity Co, 2016 WL 805524 (Exhibit C). The Majority Opinion did not

materially distinguish the instant cases from Parks and Covington, respectively. Peremptory

reversal, or alternatively a grant of leave to appeal, is necessary to correct the Court of Appeals’

departure from Parks and from the language of the no-fault act – in which the priority

provisions of MCL 500.3114 only come into play when an insured vehicle is subject to the

security requirement of the act.

8 Farmers conceded in its briefing at the Court of Appeals level that the vehicles involved were titled to EAN Holdings, LLC. (Appellant Brief, 3/27/18, pp xi-xii). Throughout this Brief, "EAN" will be used the sake of clarity and consistency.

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B. Statement of material facts.

1. Turner v Farmers, et al.

On April 11, 2015, Megan Turner was a passenger in a 2015 Hyundai Elantra, owned by

Defendant EAN and driven by Tamera Harper, at which time the vehicle was struck by a

motorcycle owned by Patsy Villneff and driven by Jason Puckett (Turner Complaint and Jury

Demand, ¶¶ 10-11, 45). The EAN vehicle was rented by Ms. Harper on March 23, 2015, in

Dearborn, Michigan (Exhibit I, Signed and Corrected Affidavit of Kristen Zub, dated February 17,

2017, ¶ 5). EAN declined Ms. Turner’s PIP claim on the basis that the involved vehicle was not

subject to Michigan’s no-fault laws (May 5, 2015 Correspondence). The involved vehicle was

registered in the State of Maryland (Exhibit J, Maryland Motor Vehicle Registration; Exhibit I,

Signed and Corrected Affidavit of Kristen Zub, ¶ 4) and had not been operated in the State of

Michigan for an aggregate of more than 30 days in any calendar year (from March 18, 2015

through the date of the accident, April 12, 2015) (Signed and Corrected Affidavit of Kristen Zub,

¶¶ 5-9). In the absence of applicable insurance, Ms. Turner sought coverage from the Assigned

Claims Plan, which assigned the matter to Farmers (Plaintiff’s Complaint, ¶¶ 17-18). Farmers

then filed its cross-complaint against EAN, asserting as a matter of law that EAN was the insurer

of the owner of the vehicle occupied by Turner at the time of the accident and was therefore

obligated to provide PIP benefits under MCL 500.3114(4)(a) (Farmers’ Cross-Complaint, ¶ 10).

Upon cross motions for summary disposition between and among EAN and Farmers, the

Honorable Annette J. Berry of the Wayne County Circuit Court heard oral argument on February

17, 2017 and took the matter under advisement (Transcript, p 11). On May 5, 2017, the trial

court issued its Opinion in which it determined that Parks governed the dispute before the

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court, and that the priority statute under which Farmers sought reimbursement was

inapplicable because the vehicle, which was not registered in Michigan, was not driven in

Michigan for more than 30 days as required under MCL 500.3102(1) (Exhibit K, Opinion, 5/5/17,

pp 5-6). The trial court found convincing although not binding the rationale in Heichel (Id., p 6)

and also found that there was no dispute that EAN was a nonresident owner or registrant. The

trial court concluded:

“The priority of coverage statute is inapplicable in the instant case because the No-Fault Act subjects only those vehicles required to be registered in Michigan to the mandatory security requirements, regardless of whether the vehicle is actually covered by an insurance policy or whether the owner of the vehicle is self-insured. Under MCL 500.3102(1), Enterprise is not required to reimburse Farmers for benefits it [Farmers] paid to Plaintiff. Accordingly, this Court will grant Enterprise/EAN’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10) and will deny Farmers’ motion.”

(Opinion, p 7). A confirming order was entered on the same day, May 5, 2017. (Exhibit L,

Order, 5/5/17). After Farmers filed its motion for reconsideration, the trial court denied that

motion through an order dated July 20, 2017. (Exhibit M, Order Denying Motion for

Reconsideration, 7/20/17). Farmers’ appeal followed.

2. Everson v Farmers, et al.

On November 7, 2015, Jonte Everson allegedly sustained injuries in a motor vehicle

accident while he was in a rental vehicle in Woodhaven, Michigan (Complaint and Demand for

Jury Trial, ¶ 4; Traffic Crash Report, Appx 78a-79a; Enterprise Rental Agreement; Application for

Personal Protection Benefits (Assigned Claims)). The EAN vehicle, rented to Jonte Everson on

October 30, 2015, was registered in the Commonwealth of Pennsylvania and had not been

operated in the state of Michigan in the aggregate for more than 30 days in the calendar year of

2015 (Affidavit of Kristen F. Zub, ¶¶ 4-6). Since Mr. Everson was not covered with a no-fault

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policy, his claim was assigned to Farmers through the Assigned Claims Plan. Farmers filed a

declaratory action seeking reimbursement from EAN as the owner of the vehicle being

operated in Michigan (Third-Party Complaint, dated March 14, 2017, ¶¶ 3-6, 8-9).

Upon EAN’s motion for summary disposition, the Honorable David S. Swartz of the

Washtenaw County Circuit Court heard oral argument on March 8, 2017 and took the matter

under advisement. (Transcript of Hearing on Motion for Summary Disposition, 3/8/17). On

August 2, 2017, the trial court issued its Opinion and Order Granting Summary Disposition

(Exhibit N, Opinion and Order Granting Summary Disposition, 8/2/17). The trial court

determined that Parks was binding and rejected the argument that Parks was distinguishable

on the facts because it involved a work-related injury and an out-of-state vehicle that had only

incidental contact with Michigan (Id., p 3). Finding that MCL 500.3101(1) is the source of the

general rule that an injured person must first look to his or her own personal insurer for

recovery of PIP benefits (Id., p 5), the trial court found that the “key” to liability under the

priority provision of the no-fault act is the “registration requirement set forth in subsection

3101(1), not ownership of the vehicle.” (Id., p 6). “A vehicle that is exempt from registration in

Michigan cannot and does not trigger application of the statutory order of priority under no-

fault law.” (Id.). Additionally, the trial court found that EAN was not a resident of Michigan, but

rather a Delaware limited liability company, ruling that there was no cited authority for

Farmers’ conclusion that presence of a resident agent in Michigan or the filing of a certificate of

authority to transact business in Michigan as a foreign limited liability company established

residency in Michigan (Id., p 7). The trial court’s order was final, resolving all pending claims

and closing the case (Id.). Farmers’ appeal followed.

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C. The Court of Appeals’ Majority Opinion.

In a published opinion, two judges of the Court of Appeals reversed the grant of

summary disposition in each case. (Exhibit A, Turner Majority Opinion, p 2). While framing the

issue as one “concern[ing] the construction of various provisions of the no-fault act[,]” the

Majority Opinion merely footnoted MCL 500.3101(1) and 500.3102(1) in the beginning of its

analysis, which expressly limit the requirement to maintain security for payment of personal

protection insurance and other benefits to motor vehicles “required to be registered in this

state” or motor vehicles operated in the state for an aggregate of more than 30 days in any

calendar year, respectively. (Id., pp 6-7). In the Majority Opinion’s view, the controlling statute

was instead the priority provision of MCL 500.3114(4)(a), which provides that “a person

suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a

motor vehicle shall claim personal protection insurance benefits” first from the “insurer of the

owner or registrant of the vehicle occupied.” (Id., p 8) (Emphasis added). Noting that

“[e]essentially the same language” is found in the priority provision of MCL 500.3114(5)(a),

pertaining to injuries to a motorcycle rider, the Majority Opinion concluded that “the analysis in

Farmers Ins Exch [v Farm Bureau Ins Co, 272 Mich App 106, 111; 724 NW2d 485 (2006)], applies

to the construction of § 3114(4)(a).” (Id., p 10).

The Majority Opinion next determined that EAN, as a self-insured entity that was the

owner and registrant of the vehicles at issue, was properly considered an “insurer of the owner

or registrant” under MCL 500.3114(4)(a) given Enterprise’s formalized status as a self-insurer

through its action in obtaining a certificate of self-insurance set forth in MCL 500.3101(2)(d).

(Majority Opinion, p 11). The Majority Opinion found that this act “manifested [Enterprise’s]

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intent to comply with the requirements of the Michigan no-fault act’s security mandate by

using its own means to provide ‘security equivalent to that afforded by a policy of insurance,’

thus functioning as its own insurer.” (Id.). In light of this, as well as the language of MCL

500.3114(4)(a) “and the function of a self-insurer,” the Majority Opinion concluded that “it is

permissible in this context to include a self-insured entity such as Enterprise within the meaning

of the term ‘insurer’ as used in” subsection 3114(4)(a). (Id.) (emphasis added).

Finally, the Majority Opinion briefly returned to MCL 500.3101(1) and rejected EAN’s

argument that the priority provision in subsection 3114(4)(a) does not apply where it was

exempted from the mandatory no-fault security requirements with respect to the vehicles

involved under subsection 3101(1). (Id., p 12). The Majority Opinion determined EAN’s reliance

on Parks to be unavailing because Parks “is not controlling of the specific issue presented in the

instant case for several reasons.” (Id., p 12). First, the Majority Opinion reasoned that Parks

“was primarily concerned with a different priority provision - § 3114(3) – than the one at issue

in the instant cases - § 3114(4)(a).” (Id., pp 12-13). The Majority Opinion discounted footnote 3

of the Parks decision, in which this Court stated that “we assume subsection 4 does not apply

because we read the phrase ‘owner or registrant of the vehicle occupied’ within subsection 4 to

be part of the more complete requirement as stated in § 3101(1): ‘The owner or registrant of a

motor vehicle required to be registered in this state[,]’” 426 Mich at 203 n. 3, for inclusion of

the word “assume[d]” and the lack of a “need to reach Subsection (4)[.]” (Id., p 13).

Accordingly, the Majority Opinion found that “[t]he Parks Court’s brief statement regarding

Subsection (4) was thus nonbinding obiter dictum.” (Id.).

The Majority Opinion’s second reason for rejecting Parks’ conclusion that MCL

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500.3101(1) is an antecedent to even considering whether there is a priority dispute was the

distinction in language between subsections 3114(3) and 3114(4)(a), in which the former

“explicitly ties the insurer’s priority status to whether it insured ‘the furnished vehicle,’”

whereas the latter “instead ties the insurer’s priority status to whether it insured the vehicle’s

‘owner or registrant.’” (Id., p 13).

Third, the Majority Opinion determined that Parks was not outcome determinative

because whether the vehicles at issue were required to be registered in Michigan or were

covered by no-fault security “are completely irrelevant for purposes of determining priority

when that determination is to be made under MCL 500.3114(4)(a).” (Id.).

D. The Dissenting Opinion

Judge Redford dissented from the Majority’s reversal of summary disposition to

Enterprise and EAN, opining that the Majority Opinion conflicts with “[b]oth this Court’s and

our Supreme Court’s decisions [which] establish that the no-fault insurance sections that

require security, MCL 500.3101(1) and MCL 500.3102(1), do not apply to either vehicle in the

two matters at bar because they were out-of-state vehicles, not required to be registered in

Michigan, [and] were not operated in Michigan for more than 30 days in any given year.”

(Exhibit B, Dissenting Opinion, pp 2-3). In light of these undisputed facts, the Dissenting

Opinion held as follows:

“Consequently, MCL 500.3114(4) does not require that Enterprise, as the self-insured owner of the vehicles, provide the no-fault benefits in this case. This result is consistent with this Court’s decision in Covington v Interstate Sys, 88 Mich App 492; 277 NW2d 4 (1979), and our Supreme Court’s decision in Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191; 393 NW2d 833 (1986), two cases that arose from facts similar to the matters at bar.”

(Id., p 3). The Dissenting Opinion agreed that if MCL 3114(4) applied in this case, as Farmers Ins

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Exch found MCL 500.3114(5) to apply in that case, then reversal would be appropriate;

however, the Dissenting Opinion concluded that “the facts, analysis, and holding of Parks and

Covington lead to a contrary result.” (Id., p 4). Noting that both Parks and Covington, like

Turner and Everson, involved vehicles owned by self-insured entities, not operated in the state

for more than 30 days aggregate and not registered in Michigan, the Dissenting Opinion

observed that “[in] each case, the courts concluded that, because neither MCL 500.3101 nor

500.3102 applied to the vehicles in question, the priority provisions of MCL 500.3114 did not

apply and the self-insured out-of-state owners were not required to pay no-fault first-party

benefits.” (Id.).

The Dissenting Opinion summarized its reasons for affirmance as follows:

“In my opinion, Parks and Covington control this case. Because the vehicles involved in the accidents in the two cases at bar were registered and licensed in another state and were not operated in Michigan for more than 30 days in any given year, the self-insured owners were not required by the no-fault act to provide first-party no-fault benefits to the injured occupants of the motor vehicles involved in the two collisions. Therefore, as Park directs, the propriety provisions set forth in MCL 500.3114 do not apply, the owners of the vehicles cannot be held liable, and plaintiffs’ no-fault claims should be covered by the insurers assigned the claims as provided under the no-fault act.”

(Id., p 5).

EAN timely files this Application for Leave to Appeal to challenge the Turner Majority

Opinion. MCR 7.205(C)(2) (setting forth 42-day period in which to file application for leave to

appeal).

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ARGUMENT

THIS COURT SHOULD PEREMPTORILY REVERSE THE COURT OF APPEALS OPINION OR ALTERNATIVELY GRANT LEAVE TO APPEAL TO CLARIFY THAT, CONSISTENT WITH PARKS V DAIIE, 426 MICH 191, 206, 211; 393 NW2D 833 (1986), A VEHICLE OWNER MAY NOT BE HELD LIABLE FOR PAYMENT OF PERSONAL PROTECTION INSURANCE BENEFITS UNDER MCL 500.3114(4)(A) WHEN AN INVOLVED VEHICLE IS “NOT REQUIRED TO BE REGISTERED IN MICHIGAN AND [IS] NOT SUBJECT TO THE SECURITY PROVISIONS OF THE NO-FAULT ACT,” THUS RENDERING INAPPLICABLE THE PRIORITY PROVISIONS SET FORTH IN MCL 500.3114 WHICH APPLY “ONLY IN THE CASE IN WHICH THE INSURED VEHICLE IS REQUIRED TO BE REGISTERED IN THIS STATE,” WHEN:

(1) IT WAS UNCONTESTED THAT THE INVOLVED VEHICLES AT ISSUE IN THIS CASE WERE NOT REGISTERED NOR REQUIRED TO BE REGISTERED IN THIS STATE (THEY WERE REGISTERED IN OTHER STATES); AND

(2) FARMERS FAILED TO PRESENT COMPETING EVIDENCE THAT THE INVOLVED VEHICLES WERE OPERATED IN MICHIGAN, FOR MORE THAN 30 DAYS IN A CALENDAR YEAR.

A. Standard of review and supporting authority.

The question presented involves the propriety of summary disposition of issues

governed by statutory interpretation. Such questions are reviewed de novo. Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999) (a trial court’s decision in a motion for

summary disposition is reviewed de novo on appeal); Oade v Jackson National Life Insurance

Company, 465 Mich 244, 250; 632 NW2d 126 (2001) (issues involving statutory interpretation

are reviewed de novo on appeal as issues of law); Vitale v Auto Club Ins Ass’n, 233 Mich App

539, 542; 593 NW2d 187 (1999) (priority of insurers under MCL 500.3114 is a question of law

when based on statutory interpretation).

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B. Introduction – summary.

The requirement of security under the no-fault act is an antecedent to determining

whether there is a priority dispute: when the no-fault act’s security provisions do not apply to a

vehicle, neither do the act’s priority provisions. This was the crux of the trial court’s ruling that

EAN is not responsible for paying the claimants’ first-party no-fault benefits, taken from the

Parks’ rationale. In turn, EAN does not constitute “[t]he insurer of the owner or registrant of

the vehicle occupied,” as that term is set forth in MCL 500.3114(4)(a). A security obligation

with respect to the subject vehicle is part of the “more complete requirement” which the Parks

court assigned subsection 3114(4). This is the legal predicate to considering the order of

priority for the payment of PIP benefits.

Here, it is uncontested that the motor vehicles involved in the accidents were owned by

EAN only, were not registered in Michigan but rather registered in other states, and had not

been operated in Michigan for more than 30 days. Michigan’s no-fault act, MCL 500.3101 and

3102, includes limits on who is required to secure no-fault insurance coverage under its

provisions. Under section 3101, it is only the “owner or registrant of a motor vehicle required

to be registered in this state.” (Emphasis added). EAN is not included in this definition because

the subject vehicles were not registered in Michigan. Under section 3102, the requirement to

secure no-fault insurance applies to a nonresident owner or registrant of a motor vehicle, but

only when the motor vehicle is operated “in this state for an aggregate of more than 30 days in

any calendar year.” Id. Here, the motor vehicles in question were operated in Michigan under

the 30-day threshold of section 3102.

The Court of Appeals Majority Opinion reversing the trial court’s grant of summary

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disposition in both Turner and Everson was contrary to precedent from this Court and the Court

of Appeals and should be overturned. First, the Majority erred in its fundamental determination

that the priority provision of MCL 500.3114(4)(a) can be triggered absent a requirement that

EAN had a security obligation for the at-issue vehicles. Such a determination completely

disregards sections 3101 and 3102 as properly interpreted by the Court of Appeals in

Covington, and by this Court in Parks. Under Parks, 426 Mich at 206, “[t]he fact that a vehicle is

actually covered by an insurance policy, or that the owner of the vehicle is self-insured, does

not alter whether the vehicle itself need or need not conform to the requirements of the act.”

(emphasis added). The Parks court interpreted statutory priority language (here, “[t]he insurer

of the owner or registrant of the vehicle occupied”), and found the phrase applies “only in the

case in which the insured vehicle is required to be registered in this state . . .” 426 Mich at 206

(emphasis supplied). A vehicle that need not be registered in Michigan nor operated in

Michigan for more than 30 days cannot trigger the application of priority provisions set forth in

section 3114, including subsection 3114(4)(a).

Second, the Majority erred by finding that EAN’s certificate of self-insurance

“manifested [its] intent to comply” with the act’s security mandate such that it was

“permissible in this context to include a self-insured entity” within the meaning of the term

“insurer” as used in MCL 500.3114(4)(a). (Majority Opinion, p 11). Michigan law provides that

“status as a self-insurer does not place it [the self-insurer] in the category of ‘[a]n insurer

authorized to transact automobile liability insurance and personal and property protection

insurance in this state . . .’” MCL 500.3163(1). As reasoned by the Parks court, the language of

section 3163 is specific to “authorized insurers,” 426 Mich at 208. Accordingly, here EAN cannot

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be considered the “insurer of the owner or registrant of the vehicle occupied” (assuming

arguendo subsection 3114(4)(a) applies to vehicles which need not be registered in this state

(and indeed are registered in other states)).

The Majority Opinion is in direct contravention of Parks and improperly expands the

scope of subsection 3114(4)(a). Additionally, the Majority Opinion’s construction of subsection

3114(4)(a) consistent with a harmonized reading of the related provisions of the act.

Moreover, the Majority Opinion does not even mention the Court of Appeals’ prior holding in

Covington v Interstate, 88 Mich App 492; 277 NW2d 4 (1979), which, like Parks, refused to find

that the plaintiff was entitled to no-fault benefits from the defendant because “[a]ccording to

the express language of [MCL 500.3101(1)] only those vehicles required to be registered in this

state are subject to the requirements of the no-fault act.” The Majority Opinion instead relies

on inapplicable cases that do not involve a non-Michigan registered vehicle like the vehicles at

issue here. For these reasons, peremptory reversal, or alternatively leave to appeal, is proper.

C. Governing law.

MCL 500.3114 addresses “the order in which various potentially liable insurers will be

required to cover a claim for benefits,” Parks, 426 Mich at 201. Section 1, in conjunction with

MCL 500.3101, sets forth the general rule of priority:

“Except as provided in subsections (2), (3) and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident… .”

(Footnote omitted) (Emphasis supplied). The exceptions to section 3114(1) apply to motor

vehicles transporting passengers (section 2), motor vehicles furnished by the employer when

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the employee suffers accidental bodily injury (section 3), and motor vehicle-motorcycle

accidents (section 5).

At issue here are the priority provisions of MCL 500.3114(4)(a) and (b), which address

the order of priority for payment of no-fault benefits to the occupant of a motor vehicle:

“(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the vehicle occupied.

(b) The insurer of the operator of the vehicle occupied.”

Several other portions of the no-fault act are relevant for an in-context review of the

parameters and meaning of section 3114(4). To start, two portions of the act identify vehicles

potentially subject to the mandatory security provisions of the act. The first is MCL

500.3101(1), which provides in pertinent part that security is required only for motor vehicles

required to be registered in Michigan:

“The owner or registrant of a motor vehicle required to be registered in this stateshall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.”

(Emphasis supplied). The second provision applies particularly to non-resident owners or

registrants of motor vehicles, and requires security for a non-Michigan registered vehicle only if

the vehicle is operated in Michigan for more than 30 days:

“A non-resident owner or registrant of a motor vehicle not registered in this state shall not operate or permit the vehicle to be operated in this state for an aggregate of more than thirty days in any calendar year unless he or she continuously maintains security for the payment of benefits.”

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MCL 500.3102(1) (emphasis supplied).

The remaining statutory provisions and relevant case law are discussed in the Argument

portions of this Application.

D. Argument: EAN does not qualify as “[t]he insurer of the owner or registrant of the vehicle occupied,” under which Farmers seeks to assign first order of priority.

1. Application of subsection 3114(4) is subject to the “more complete requirement” that the vehicles be “required to be registered in this state,” which they are not; thus EAN cannot be considered the insurer of the “owner or registrant of the vehicle[s]” under the priority provision of subsection 3114(4)(a).

a. The interplay between sections 3101 and 3114.

Subsection 3114(4)(a) priority is inapplicable to a non-Michigan registered vehicle. In

Parks, 426 Mich at 203-206, this Court held that the phrase “motor vehicle owned or registered

by the employer” applied only in cases in which the insured vehicle is required to be registered

in this state. The phrase specifically does not include situations where the vehicle involved in

the accident was not required to be registered under Michigan’s no-fault act. In its opinion, the

Parks court analyzed the meaning of the phrase, “[t]he insurer of the owner or registrant of the

vehicle occupied,” found in subsection 3114(4)(a) - the same provision in question here, found

in subsection 3114(4)(a). The Parks court concluded that the scope of the phrase “owner or

registrant” was limited to motor vehicles required to be registered in the state of Michigan:

“[T]he general rule is that one looks to a person’s own insurer for no-fault benefits unless one of the statutory exceptions, subsections 2, 3, and 5, applies.3

______________________________ 3 Subsection 4 reinforces this conclusion. Those injured while occupants of motor vehicles must look to the rules provided in subsections 1, 2, and 3 before applying the priorities listed in subsection 4. The implication of the phrase ‘owner or registrant’ was not extensively argued. But we assume subsection 4 does not apply because we read the phrase ‘owner or registrant of the vehicle occupied’ within subsection 4 to be part of the more complete requirement as

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stated in § 3101(1): ‘The owner or registrant of a motor vehicle required to be registered in this state’ (emphasis added).”

Parks, 426 Mich at 202-203, n3 (italics original) (underline/bolding added).

The motor vehicles involved in the subject accidents were titled and registered in

Maryland (Turner) and Pennsylvania (Everson) prior to the accidents in Michigan. They were

not motor vehicles required to be registered in the State of Michigan. See MCL 257.243. Nor

were the vehicles operated in Michigan for more than 30 days in any calendar year. MCL

500.3102(1). Accordingly, EAN, as the titled owner of the vehicles, was not required to

maintain security for the payment of benefits under personal protection insurance, property

protection insurance, and residual liability insurance pursuant to MCL 500.3101 or MCL

500.3102. Under Michigan’s Highway Reciprocal Board, MCL 3.161 et seq., the Michigan

Legislature allows reciprocal contracts with other states regarding the operation and

regulations of various motor vehicles, including automobiles. MCL 3.163.9

b. Parks v DAIIE

The factual parallels between these consolidated cases and Parks are material. In Parks,

the vehicle involved in the accident was owned by a self-insured nonresident company, was

registered in another state, and was not required to be registered in Michigan. This applies to

9 MCL 3.163 provides:

Notwithstanding any other provision of law to the contrary, the board may enter into any such reciprocal compacts, agreements or arrangements as the board deems proper or expedient and in the interests of the people of this state, with the proper authorities of other jurisdictions, either individually or with a group of jurisdictions, concerning the fees, charges, taxation, operation and regulation of trucks, tractors, trailers, automobiles, buses, and all other automotive equipment engaged in international, interstate or intrastate commerce upon and over the public highways.

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these consolidated cases. In Parks, one insurer argued that the nonresident vehicle owner was

liable under MCL 500.3114, regardless of whether the no-fault act required that owner to

maintain security on the vehicle. This also applies to both Turner and Everson. In Parks and

these cases, the trial courts rejected an insurer’s priority argument, finding that the registration

requirement of section 3101(1) is the necessary and key prerequisite to liability under the act.

Thus, Parks both governs and requires affirmance.

Section 3102(1) does apply to vehicles owned by non-residents and not registered in the

state, but specifically limits the requirement of security to vehicles operated in this state for

more than 30 days in a single calendar year. Here, there is no evidence that the subject

vehicles were operated in Michigan for an aggregate of more than 30 days in any particular

calendar year. In fact, the evidence proves the contrary. (Signed and Corrected Affidavit of

Kristen Zub, ¶¶ 4-9). Since the involved vehicles were not subject to the security requirements

of the act, the priority provision of subsection 3114(4)(a) does not apply. Priority exists (if at

all) only if there is an “owner or registrant of the vehicle,” as that phrase is limited by the more

complete requirement of section 3101 that the owner or registrant of the motor vehicle is one

which must be “required to be registered in this state.” Judge Redford was correct when he

concluded in his Dissenting Opinion that “the priority provisions set forth in MCL 500.3114 do

not apply” when the vehicles involved in the accidents in the two cases at bar were registered

and licensed in other states and were not operated in Michigan for more than 30 days in a

given year. (Dissenting Opinion, p 5). EAN is not an owner or registrant of the motor vehicles

required to be registered in this state, as that term is contemplated by the Michigan

Legislature, and as so interpreted by the Parks court. The Turner Majority Opinion’s contrary

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conclusion fails.

c. Heichel v GEICO

The Court of Appeals’ opinion in Heichel v GEICO Indemnity Co, Court of Appeals Docket

Nos. 323818, 324045, rel’d 3/01/2016; 2016 WL 805524 at *3 (unpublished) (Exhibit C) – which

“followed Parks’ instruction that the priority provisions of MCL 500.3114 only apply if the

insured vehicle was required to be registered in Michigan” (Dissenting Opinion, p 4, n 5) –

underscores both the proper approach the Majority should have taken in this case as well as

the need for this Court’s intervention to garner uniformity among the state’s intermediate

appellate court. In Heichel, a case involving section 3114(5)(b)10, the Court of Appeals examined

and properly applied the core holding underpinning Parks. In that case, there was a vehicular

accident in which Adam Heichel was injured while riding a motorcycle when a Ford Fusion,

owned by EAN, registered in North Carolina, and rented from Enterprise Rent-A-Car, ran a red

light and struck the motorcycle. The Ford Fusion was being driven by Mr. Pietruczynik and was

rented by his wife, Ms. Roddy, who signed the Enterprise Rental Agreement. GEICO Indemnity

Company insured the personal vehicle owned by Ms. Roddy and by Mr. Pietruczynik. Ms.

Roddy also had a State Farm policy on another personal vehicle, and as to that vehicle, Mr.

Pietruczynik was a named insured. The Heichel court summarized that there were three

potential sources through which Heichel could seek payment of PIP benefits: EAN, GEICO and

State Farm. Both GEICO and State Farm argued that they were lower in priority under MCL

500.3114(5) (governing priority of insurers with the involvement of a motor vehicle and a

10 Heichel involved priority under MCL 500.3114(5)(a), listing as a first priority “[t]he insurer of the owner or registrant of the motor vehicle involved in the accident.”

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motorcycle). The Court of Appeals disagreed. Citing Parks that the first step was to determine

whether the insured vehicle was required to be registered in Michigan, the Heichel court found

that the EAN Ford Fusion, owned by Enterprise, was not registered in Michigan, was registered

in another state, and had not been used in Michigan for over 30 days. Finding that registration

of the involved vehicle was central to this Court’s conclusion in Parks that the vehicle owner

could not be held liable for PIP benefits, the Heichel court ruled:

“A vehicle that does not need to be registered in Michigan cannot trigger the application of the priority provision set forth in MCL 500.3114.”

Heichel at *3.11 As explained in greater detail later in this Application, Heichel analyzed a

different subsection of MCL 500.3114 than did Parks, but this distinction was found immaterial

by the court in Heichel.

d. The Majority Opinion in Turner/Everson

In the Turner Majority Opinion, two judges of the Court of Appeals ruled in a published

opinion that the priority provision of MCL 500.3114(4)(a) applies to a “self-insurer” of the

motor vehicle’s “owner or registrant,” regardless of whether the particular vehicle involved in

the accident was required to be covered by no-fault security under MCL 500.3101(1) or MCL

500.3102(1). Turner, 2019 WL at *11. (Cavanagh, P.J., and Borrello, J.). Notably, the Turner

Majority Opinion acknowledged but found non-binding the Parks court’s finding that the phrase

“owner or registrant of the vehicle occupied” within subsection 3114(4)(a) is subject to “the

more complete requirement as stated in § 3101(1): ‘the owner or registrant of a motor vehicle

required to be registered in this state.’” Parks, 426 Mich at 202-203, n3 (emphasis supplied).

11 As here, in Heichel there was no claim that security was required under 3102(1).

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See Turner at *10.12 Reasoning that the Supreme Court “merely assumed” as true this “more

complete requirement” “without actually analyzing or deciding the issue,” Turner at *10 (italics

original), the Majority Opinion relied instead on Farmers Ins Exch v Farm Bureau General Ins Co,

272 Mich App 106; 724 NW2d 485 (2006) for the position that the phrase “insurer of the owner

or registrant of a motor vehicle” assigns liability to the insurer of the owner of the subject

vehicle “without regard for whether no fault-security was actually maintained on the particular

vehicle itself.” Turner at *10, citing Farmers Ins Exch, 272 Mich App at 113.13

The Dissenting Opinion found Parks applicable and binding, reasoning that the lack of a

security requirement under sections 3101 and 3102 for the vehicles owned by EAN and the

resulting lack of an obligation to provide no-fault benefits to the injured occupants of the

vehicles under the act means that the priority provisions of section 3114 did not apply. Turner

at *11 (Redford, J., dissenting). In so reasoning, the Dissenting Opinion distinguished Farmers

Ins Exch, stating the priority provision relied upon in the Majority Opinion is not applied absent

a security requirement in the first instance. In EAN’s view, the Dissenting Opinion honored and

applied the Park court’s “more complete requirement” of the need for a security obligation to

pay no-fault benefits before reaching the priority of payment scheme of section 3114, and

specifically section 3114(4), as so cited by Parks. 426 Mich at 202-203, n3.

Both the Majority Opinion and Farmers Ins Exch are flawed for the same reason: the

12 As with much of the Turner Majority Opinion, reliance upon obiter dicta to disregard footnote 3 of Parks is taken directly from an earlier unpublished Court of Appeals case, McMullen v Citizens Ins Co, Court of Appeals Docket No. 332373; 2017 WL 2562545 (rel’d 6/13/2017) (unpublished) (Exhibit O) (Judge Borrello participating in both McMullen and Turner).

13 The section analyzed in Farmers Ins Exch is 3114(5), stating “the insurer of the owner or registrant of the motor vehicle involved in the accident.”

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starting point for determining obligations under the no-fault act is the requirement to provide

insurance. If, in the first instance, the “insurer” (EAN does not qualify, addressed infra) does

not have to provide security, then the court never reaches the question of priority. Restated,

priority between “insurers” only applies if there is a predicate obligation to provide security.

Both Parks and the Court of Appeals in Heichel correctly reasoned that the registration

requirement set forth in section 3101(1) is the key to liability under the no-fault act. Where the

insurer’s connection to the incident is through a vehicle which does not trigger the overriding

security requirement of Michigan law, that vehicle cannot trigger the application of the priority

provision set forth in MCL 500.3114.

This position is further supported by the Court of Appeals’ opinion in Covington v

Interstate System, 88 Mich App 492; 277 NW2d 4 (1979), specifically relied upon by the Parks

court (but ignored by the Turner Majority Opinion). 426 Mich at 205. In Covington, the Court

of Appeals found that a plaintiff injured in a traffic accident while driving a vehicle registered

and licensed in another state, but nonetheless owned by a Michigan corporation, was not

entitled to no-fault benefits because the vehicle involved in the incident did not fall within the

class of vehicles covered in the no-fault act, citing MCL 500.3101(1).

The Majority Opinion in Turner concluded that subsection 3114(4)(a) does not require

that the involved vehicle subject its owner or registrant to the security obligations of section

3101. EAN acknowledges that the subject priority provision provides “[t]he insurer of the

owner or registrant of the vehicle occupied,” and is not suggesting this Court read out the

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phrase “of the owner or registrant” of the vehicle occupied.14 Rather, since the priority

provision is part of the more complete security requirement of section 3101(1), and since there

is no obligation to provide security with respect to a vehicle not registered in Michigan or not

operated in Michigan for more than 30 calendar days, the lack of that obligation should be

folded into the priority provision. The proper interpretation of subsection 3114(4)(a) is that it

is limited to the insurer of the motor vehicle involved in the accident. See Farmers Ins Exch v

Farm Bureau, 478 Mich 880, 882-883; 731 NW2d 757 (2007) (Markman, J., dissenting). This is

because, under the Majority Opinion’s analysis and holding, EAN as a purported “insurer”

would be liable under MCL 500.3114(4)(a) by reason that it insured other vehicles it owned or

registered, even though it did not insure the vehicle which is a necessary trigger to the claim for

PIP benefits.

It is undeniable that no fault obligations begin with the requirements to provide security

found in section 3101. In turn, the priority provisions of section 3114(4) are subject to and

should be interpreted in this context. The Legislature has not amended the language of MCL

500.3114(4) since its enactment in 1973. Since that time, the registration requirement has

systematically been regarded as the starting point for the obligation to maintain security – and

14 The “plain meaning” rule of statutory construction does not prohibit or eliminate possible ambiguity in a statute. For the statutes presenting clear language, there may be multiple possible interpretations through which further analysis is required and context is needed. For example, the meaning of a word that appears ambiguous and viewed in isolation may become clear when the word is analyzed in light of the terms that surround it. See e.g. Smith v United States, 508 US 223, 229 (1993). Moreover, when determining even the plain meaning of a statute, the court shall look to the particular statutory language at issue, not in isolation, but together with the language in design of the statute as a whole. Household Credit Servs, Inc v Pfenning, 541 US 232, 239 (2004).

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thus, the obligation to provide benefits. See, e.g., 1979-1980 Mich Op Atty Gen 396 (1979)

(Hon. Richard H. Austin) (“This act requires the maintenance of ‘security’ (insurance) where a

motor vehicle is operated in the state by a non-resident owner of [sic] out-of-state registrant

for more than 30 days.”). “The statute, 1956 PA 218, § 3101, mandates that only those vehicles

which are ‘required’ to be registered in ‘this state’ shall maintain insurance.” Id. at *2.

e. The Majority Opinion improperly expands the scope of section 3114(4)(a) beyond the insurer of the motor vehicle involved in the accident.

Under the Majority Opinion, EAN as a self-insured and insurance carriers alike, are held

liable for no-fault benefits arising from incidents involving vehicles for which EAN and insurance

carriers have no obligation to provide security. The Majority Opinion readily accepts this

proposition under the apparent notion that an insurance obligation for other vehicles is

sufficient to create no-fault liability through the priority provision for an incident involving a

vehicle neither registered nor required to be registered and in turn for which no security need

be provided under section 3101. Yet, the obligation to a claimant’s PIP benefits under section

3114(4) itself requires that the claimant is “an occupant of a motor vehicle.” It is only within

this requirement that the Legislature then provided the first order of priority under subsection

3114(4)(a) (“the insurer of the owner or registrant of the vehicle occupied.”). The Majority

Opinion divorces the earlier reference to the “occupant of a motor vehicle” from qualifying the

owner or registrant of the “vehicle occupied.” Yet both provisions are found in the same section

of section 3114. Since the obligation to provide benefits arises only when the claimant is an

occupant of a motor vehicle, and that motor vehicle is obviously the vehicle that was involved

in the incident, it unduly expands the priority provision to include an insurer of any vehicle –

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not just the subject vehicle - for which the owner or registrant must provide security, rather

than the actual vehicle occupied. In turn, sections 3101 and 3102 make clear there was no

obligation to provide security for this vehicle.

Additionally, whereas sections (2), (3) and (5) are excepted from the predicate terms of

the general priority statute of section 3114(1), section (4) is not. Indeed, section 3114(1) refers

to section 3101(1), which requires every vehicle registered in this state to carry no-fault

security, preconditioning the payment of PIP benefits with respect to “a personal protection

insurance policy described in section 3101(1).” Thus, it is the insurer of that motor vehicle, and

not some other vehicle, that is responsible for no-fault benefits. As explained, this provision

requires security only with respect to a vehicle that is or must be registered in the State of

Michigan. No such vehicles are involved in these cases.

The Turner Majority Opinion does not interpret section 3114(4)(a) within the full

context of section 3114 generally (including 3114(1)), and does not do so with respect to the

other provisions of the no-fault act, specifically sections 3101 and 3102. Each of these sections

requires the owner or registrant of a motor vehicle to pay insurance premiums for all vehicles

owned and registered in Michigan, and in turn a security obligation arises with respect to

vehicles that are registered in Michigan or used in Michigan on a consistent basis, designated

by the Legislature as more than 30 days in any calendar year. Other provisions of the act

establish a needed connection between insurance coverage of the vehicle involved and the

payment of PIP benefits. MCL 500.3113(b) provides that a person who is the owner or

registrant of a motor vehicle involved in an accident may not recover PIP benefits with respect

to any security required “by section 3101 or 3103[;]” such security must be established before

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the entitlement to benefits. Reference to “motor vehicle” earlier in subsection 3114(4)

modifies the latter term of “the vehicle occupied” and thus limits the application of that priority

provision to an insurer of that vehicle, the one occupied in the incident.

f. The “more complete requirement” of Parks is supported by other jurisdictions’ no-fault acts.

Other “no-fault” states similarly regard the registration security requirement to be the

necessary foundation for any obligation to provide benefits under subsequent provisions of the

act. Florida’s no-fault act, ss. 627.730-627.7405, announces this limitation in the very beginning

of its act:

The purpose of ss. 627.730-627.7405 is to provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits, for motor vehicles required to be registered in this state and, with respect to motor vehicle accidents, a limitation on the right to claim damages for pain, suffering, mental anguish, and inconvenience.

Fla Stat Ann 627.731 (West) (emphasis added). Applying section 731, the District Court of

Appeal of Florida (Fifth District) reversed an earlier decision that an out-of-state vehicle

registered in Massachusetts and involved in an accident in Florida, triggered an obligation to

provide PIP coverage. Julian v Johnson, 438 So2d 503 (1983). In so ruling, the Julian court

reasoned that the Florida No-Fault Act only applies to motor vehicles “registered in this state”:

Florida public policy, as expressed by its statutory law, does not support the judgment, because the Florida statutory requirements for PIP coverage, by their very terms, do not require Florida PIP coverage under the facts of this case. Section 627.731, Florida Statutes (1981), applies the No-Fault Act to motor vehicles “registered in this state.” The vehicle here was registered in Massachusetts. The No-Fault Act requires that the owner of the vehicle have insurance coverage, not the driver. See Protective National Insurance Company of Omaha v Padron, 310 So.2d 432 (Fla. 3d DCA 1975). Section 627.733(2), Florida Statutes (1981), requires that non-resident owners of motor vehicles which have been physically present in the state for more than 90 days during the preceding 365 days shall thereafter maintain security as required by law. The

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stipulated facts do not show this out-of-state vehicle to have been in this state during such period.

438 So2d at 505 (italics and underlining added). The Julian court concluded that “[s]ince

neither the subject vehicle nor the appellant driver were required to have the PIP coverage

under section 627.733(2), then section 627.736(1)15 [setting forth insurance obligations],

likewise does not apply.” Id. at 506.

The Supreme Court of Delaware, which also employs a type of a no-fault statutory

scheme, has similarly recognized that the entitlement to no-fault benefits flows from the

threshold requirement that the vehicle be “required to be registered in this State.” Nationwide

Ins Co v Battaglia, 410 A2d 1017 (Del 1980). As the Delaware Supreme Court recognized:

The basis for entitlement to no-fault benefits is set forth in the section’s eligibility provisions: [21 De. St. TI 21] s 2118(a)(2)c, d, and e. These subparagraphs refer to the specific classes of people who are entitled to no-fault benefits. Each of the subparagraph classes is dependent on the introductory section 2118(a) and its reference to vehicles “required to be registered in this State” and the required Delaware insurance.

Nationwide, 410 A2d at 1018 (emphasis added). 16 See also Green v Budget Rent A Car Corp,

15 Fl St § 627.736(1) provides, in pertinent part, as follows:

An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to section (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows…[emphasis added].

16 The plaintiff in Nationwide was injured in Delaware in an automobile accident while a (cont’d on next page)

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857 A2d 1031, 1034-1035 (Del Super Ct 2004) (“[b]ecause the legislature has designated

insurance requirements for out of state vehicles to operate in Delaware but has not required

registration in Delaware for out of state rental cars, this Court will not read such a requirement

into the statute.”).

2. The Majority Opinion’s interpretation of the no-fault act is incomplete and inaccurate.

The Majority Opinion requires this Court to ignore two provisions of the no-fault act:

MCL 500.3101(1) (“the owner or registrant of a motor vehicle required to be registered in this

state shall maintain security for payment of benefits under personal protection insurance…”)

and 500.3102(1) (an out-of-state vehicle owner must maintain security for payment of no-fault

benefits if he or she permits the vehicle to be operated in Michigan for “an aggregate of more

than 30 days in any calendar year”), and two provisions of the Michigan Vehicle Code: MCL

257.243(1) (a non-resident owner may operate or permit the operation of the vehicle within

the state without registering the vehicle in this state), and (4) (a vehicle is duly registered in the

place of residence of the owner, and the resident owner of a pleasure vehicle operates the

vehicle for 90 days without securing registration in this state)).

(cont’d from previous page)

passenger in a vehicle owned by a Maryland resident and registered in Maryland. The vehicle's owner had insurance coverage through Nationwide, which provided for the minimum PIP coverage permitted under Maryland law. The plaintiff incurred damages in excess of that minimum PIP coverage and sought the additional expenses from Nationwide, arguing that Delaware law required a higher amount for minimum PIP coverage. The Nationwide court held that § 2118 “cannot be held to impose Delaware's minimum PIP insurance benefits requirement on the defendant” because the Maryland statute was the applicable law. 410 A2d at 1017, 1019.

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The in pari materia rule of statutory construction holds that statutes relating to the

same subject, where sharing a common purpose, should be read together as one, even if the

two statutes contain no reference to each other. O’Connell v Director of Elections, 316 Mich

App 91, 99; 891 NW2d 240 (2016). If the court’s emphasis should be on whether EAN is the

priority insurer, then even an interpretation of section 3114 and other provisions of the no-fault

act cannot be reconciled with the existence, let alone mandate, of sections 3101 and 3102 of

the Act.

Proper resolution of the question presented requires application of these two

provisions. When the Michigan Legislature provided that the owner of a motor vehicle shall

maintain security for payment of PIP benefits with respect to a motor vehicle “required to be

registered in the state,” the language is clear and unequivocal, and not subject to further

interpretation. As such, section 3101(1) must be enforced as written and no further judicial

construction is required or permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596

NW2d 119 (1999); Michigan v Bay Mills Indian Community, 134 S Ct 2024, 2034 (2014) (“This

Court has no roving license, in even ordinary cases of statutory interpretation, to disregard

clear language simply on the view that ... Congress ‘must have intended’ something

broader.”); Util Air Regulatory Group v EPA, 134 S Ct 2427, 2446 (2014) (“The power of

executing the laws necessarily includes both authority and responsibility to resolve some

questions left open by Congress that arise during the law's administration. But it does not

include a power to revise clear statutory terms that turn out not to work in practice.”).

Similarly, when the Michigan Legislature provided that an out-of-state vehicle owner maintain

security for payment of PIP benefits only with respect to a vehicle operated in Michigan for “an

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aggregate of more than 30 days in any calendar year,” the language is clear and should be

enforced as written. “In reviewing statutes, courts do not assume the language is imprecise ...

Rather, we assume that in drafting legislation, Congress says what it means.” Sundance

Associates, Inc v Reno, 139 F3d 804, 809 (CA 10, 1998).

What the Majority Opinion fails to recognize is the fact that under sections 3101 and

3102, the provisions are “either/or” provisions, and not subject to statutory interpretation

beyond the express meaning of the words. A motor vehicle is either required – or not required

– to be registered in this state. “The text is what it is, no matter which side benefits.” Bormes v

United States, 759 F3d 793, 798 (CA 7, 2014). There is no middle ground and thus there is no

room for interpretation of MCL 500.3101(1). Similarly, a non-registered vehicle is used either

more or less than 30 days in any calendar year, from which the obligation to maintain security

for payment of benefits may arise. Finally, under MCL 257.243(1), a non-resident owner may

operate or permit the operation of a vehicle registered in another state “except as otherwise

provided in this section,” meaning operating a pleasure vehicle for a period exceeding 90 days.

See section (4).

Each of these statutes deals with the same topic: the requirement to provide security

with respect to and governed by whether the vehicle is registered in Michigan, or must be

registered in Michigan.17 The Majority Opinion directs courts to excise altogether the provisions

17 The Michigan Legislature did not limit its Michigan centric approach to the no-fault act to the obligation to provide security for PIP benefits. MCL 500.3004 through 500.3012 shall be deemed to include the provisions required by such sections. However, each of the sections applies to Michigan policies, either issued or delivered in this state. See MCL 500.3004 (“No policy of insurance . . . shall be issued or delivered in this state… .” (emphasis supplied)); 500.3006 and 500.3008 (“such liability insurance policies”); 500.3009 (an automobile liability or (cont’d on next page)

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dealing with the need for security, and under what circumstances, in lieu of examining solely, in

isolation, the priority provision of subsection 3114(4)(a). This places the proverbial cart before

the horse. If there is no obligation to provide security in the first instance, then the priority of

payment for entities that are required to provide security simply does not apply. This is the

crux of Parks, adopted by the Court of Appeals in Heichel.

The Parks’ court’s finding that section 3114(4) and the reading of the phrase “owner or

registrant of the vehicle occupied” is part of the part of the more complete requirement stated

in section 3101(1) is supported by the rules of statutory construction and consideration of other

portions of the no fault act. Where the meaning of statutory language is not clear, at a

minimum, the Parks’ court’s analysis of section 3114(4) so demonstrates, judicial construction

becomes necessary. Courts are to accord statutory words their ordinary and generally

accepted meaning. Thornton v Allstate Ins Co, 425 Mich 643, 648; 391 NW2d 320 (1986).

When courts interpret a particular phrase in a statute, they must, whenever possible, construe

that phrase in such a way that the interpretation does not conflict with, or deny effect to, other

portions of the statute. Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).

When interpreting statutes, the court’s goal is to harmonize and reconcile related statutes, and

to avoid nullifying any statutory provision by the overly-broad interpretation of another.


motor vehicle liability policy shall not be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state (emphasis supplied)). From there, section 3012 refers back to “[s]uch a liability policy,” i.e., those described in sections 3004 through 3012. “Such a liability policy” means those (“such”) referenced in the earlier section, from which certain provisions are then to be incorporated (“deemed to include”) into the policy.

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People v Juntikka, 310 Mich App 306; 871 NW2d 555 (2015). Under the doctrine of in pari

materia, statutes that relate to the same subject or that share a common purpose should, if

possible, be read together to create a harmonious body of law. People v Feeley, 499 Mich 429;

885 NW2d 223 (2016). As noted by the United States Supreme Court, a court must look beyond

the language of a statute where the text is ambiguous or when, although the statute is facially

clear, a literal interpretation would lead to internal inconsistencies, an absurd result, or an

interpretation inconsistent with the intent of Congress (here, the Legislature). United States v

Turkette, 452 US 576, 580 (1981). See also Kokoszka v Belford, 417 US 642, 650 (1974) (“Where

the literal language of the statute does not conclusively reveal legislative intent, the court must

look beyond literal meaning, analyzing the provision in context with the whole.”). Judicial

construction is appropriate when reasonable persons could interpret a statute differently. In re

MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).

Throughout the no-fault act, there are indicators that the phrase “insurer of the owner

or registrant of the vehicle occupied” refers only to the motor vehicles which are first required

to be covered by no-fault security. MCL 500.3113(b) (a person is not entitled to be paid PIP

benefits if the person was the owner or registrant of a motor vehicle for which security was

required but not in effect) and MCL 500.3173 (a person excluded elsewhere in the act is

disqualified from receiving benefits under limitations, including section 3113) demonstrate that

insurance coverage relates to the vehicle involved in the motor vehicle accident, and goes so far

as to exclude from recovering benefits those persons who have failed to obtain a no-fault policy

for their vehicle or failed to pay insurance premiums for such a policy. See Farmers Ins Exch,

478 Mich at 884. As already explained, sections 3101(1) and 3102(1) require the provision of

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security with respect to the status of the motor vehicle itself, registered in Michigan or

operated in Michigan for more than 30 calendar days in any single year. When these provisions

are taken into account under the rules of statutory interpretation, there is a reading of the act

such that the vehicle involved in the accident must be covered by security in the first instance

for the insurer (or here, alleged self-insurer) to then have priority to pay benefits to an injured

occupant of a motor vehicle.

In pari materia also encourages the Court to examine financial responsibility laws

because “the financial responsibility act determine[s] the extent of liability coverage required

under no-fault.” Farmers Ins Exch, 478 Mich at 885, quoting State Farm Mut Auto Ins Co v

Sivey, 404 Mich 51, 56; 272 NW2d 555 (1978). The financial responsibility act requires

designation by explicit description or appropriate reference to all motor vehicles to which

coverage applies, and in turn an insurer’s liability is limited only to the vehicles listed in the

policy. State Farm Mut Auto Ins Co v Ruuska, 412 Mich 321, 336 n7; 314 NW2d 184 (1982).

Since the Legislature only required an insurer to provide liability coverage for such automobiles

listed in the policy, it would be incongruous to then find that subsection 3114(4)(a) extends to

the self-insured of the owner or registrant of any motor vehicle that may have been occupied at

the time of the incident. As Justice Markman stated in Farmers Ins Exch:

“The proper interpretative approach, in my judgment, would have been to reconcile the no-fault act and the financial responsibility act by interpreting the no-fault provisions to refer to the insurer of the owner with respect to the vehicle involved in the accident.”

Farmers Ins Exch, 478 Mich at 885 (italics original).

Finally, to the extent Farmers argues that shifting the burden of handling such claims to

the Assigned Claims Plan causes an increase in the auto insurance premiums paid by all

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Michigan drivers, this position lacks merit. The Michigan Assigned Claims Plan (“MACP”) is a

statutorily-created back-up plan to provide a method of payment of PIP benefits when an

injured person lacks no-fault coverage. See generally MCL 500.3172. When the Legislature did

not intend responsibility placed on a specific insurer, the MACP acts as the insurer of last resort.

This does not mean that the terms of sections 3101, 3102, and specifically 3114(4) should be

read to avoid MACP involvement, which places costs of care with the insurers which write most

of the no-fault coverage policies in this state, reaping the premium dollars in such a fashion to

offset any MACP losses by such premium dollars. No such intent is evident in the no-fault act.

The role of the court is to apply the statutes as written.18 Farmers’ recourse is with the

Michigan Legislature or the Commissioner of Insurance. “If Congress enacted into law

something different from what it intended, then it should amend the statute to conform to its

intent.” Lamie v US Trustee, 540 US 526, 542 (2004).

3. The Majority Opinion does not meaningfully distinguish Parks under the language of the no-fault act.

None of the distinctions cited by the Majority Opinion is material to the present dispute,

18 Federal case law on these points is insightful. “The question ... is not what Congress ‘would have wanted’ but what Congress enacted[.]” Republic of Argentina v Weltover, Inc, 504 US 607, 618 (1992). This rule governs even if the court believes that some other approach might “accor[d] with good policy.” Burrage v United States, 134 S Ct 881, 892 (2014) (quoting Commissioner v Lundy, 516 US 235, 252, 116 S Ct 647, 133 L Ed2d 611 (1996) (other citation omitted)). “[V]ague notions of a statute's ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.” Mertens v Hewitt Assocs, 508 US 248, 261 (1993) (emphasis in original). “[C]ourts, out of respect for their limited role in tripartite government, should not try to rewrite legislative compromises to create a more coherent, more rational statute. A statute is not ‘absurd’ if it could reflect the sort of compromise that attends legislative endeavor.” Robbins v Chronister, 435 F3d 1238, 1243 (CA 10, 2006).

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nor does any displace the applicability and binding nature of the Parks decision. The Majority

Opinion noted that the statutory provision at issue in Parks differs from the provision in these

cases, because Parks referred to accidental bodily injury while an employee was an occupant of

a motor vehicle “owned or registered by the employer,” MCL 500.3114(3), whereas the priority

provision in these cases refers to a person suffering accidental bodily injury “while an occupant

of a motor vehicle,” without the modifier “owned or registered by the employer.” MCL

500.3114(4). (Majority Opinion, pp 12-13). This is a distinction without legal significance. The

phrase “owned or registered by the employer” in section 3114(3) simply describes the situation

in which priority is to be determined, namely “from the insurer of the furnished vehicle.”

Restated, “owned or registered by the employer” is part of the set of circumstances in which an

employee will look to the insurer of the furnished vehicle for PIP benefits. It does not govern

the priority provision language, “from the insurer of the furnished vehicle.”

Moreover, to reach its desired interpretation, the Majority Opinion too narrowly

restricts the holding and rationale of Parks. In its opinion, the Parks court specifically analyzed

MCL 500.3114(4)(a), discussing the meaning of the phrase “[t]he insurer of the owner or

registrant of the vehicle occupied” (emphasis supplied). The Majority Opinion cannot

legitimately contend that this identical phrase is significantly different from the phrase at issue

in this case.

Additionally, the priority provision of subsection 3114(4)(a) incorporates registration of

the vehicle occupied, as denoted by the phrase “[t]he insurer of the owner or registrant of the

vehicle occupied.” In both instances, there is reference to a motor vehicle registered, which in

turn implicates MCL 500.3101(1), that only a vehicle registered “in this state” qualifies in the

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first instances for priority under section 3114.

Nor is it significant that the actual priority language in Parks found at MCL 500.3114(3) –

“the insurer of the furnished vehicle” – is different than the language used in the priority

provisions of MCL 500.3114(4)(a) – “[t]he insurer of the owner or registrant of the motor vehicle

involved in the accident.” (Majority Opinion, pp 12-13). The former specifically references the

phrase “vehicle owned or registered:”

“(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”

MCL 500.3114(3) (emphasis supplied). So too, in subsection 3114(4)(a), the Legislature speaks

of “the insurer” of a motor vehicle owned (“owner”) or registered (“registrant”). The statutory

distinction is immaterial.

The Majority Opinion discredited footnote 3 of the Parks decision, 426 Mich at 202-203,

n3, in which the Michigan Supreme Court found that the priority provision in this case, found in

section 3114(4), is part of and subject to “the more complete requirement” that the motor

vehicle must be registered in Michigan to trigger the application of the priority provisions.

(Majority Opinion, p 13). Farmers has not contended that the motor vehicles in question were

required to be registered in the state of Michigan. Nor has Farmers disputed that the vehicles

were registered in other jurisdictions. Thus, when interpreting the phrase “owner or registrant

of the vehicle occupied” to determine the order of priority, the phrase must be interpreted in

light of the “more complete requirement” that such a vehicle must be required to be registered

“in this state,” which is missing in this case.

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The Majority Opinion’s dismissal of footnote 3 of Parks appears to be taken directly

from McMullen v Citizens Insurance Company, Court of Appeals Docket No. 332373, rel’d June

13, 2017 (unpublished); 2017 WL 2562545 (Exhibit O), in which a panel of the Court of Appeals

found that the Parks analysis found in footnote 3 is obiter dicta and need not be followed by

the Court. This point was directly addressed in Heichel whereby the Court of Appeals

acknowledged that the situation before the Heichel court dealt with a different subsection of

MCL 500.3114, but did not change the result under Parks. The Majority Opinion does not

effectively argue why this rationale is inapplicable to the facts of this case. If the registration

requirements set forth in section 3101(1) do not apply, and the entity is not required in the first

instance to provide security under the act, then the priority provisions set forth in 3114 are

never triggered, regardless of whether the asserted priority provision is found in subsections

(3), (4), or (5).

Most importantly, the rationale set forth in footnote 3 follows closely the overall

rationale of the Parks decision. At its core, the Parks court read the no-fault act and found that

the plain language in section 3101(1) subjects only those vehicles required to be registered in

the state to the mandatory security requirement. Parks, 426 Mich at 206. This Court did not

condition this finding on the application of any particular priority provisions sought to be

applied under section 3114. Nor did this Court condition this overall condition on whether the

vehicle was actually covered by an insurance policy or the owner of the vehicle was self-

insured.19

19 “The fact that a vehicle is actually covered by an insurance policy, or that the owner of the vehicle is self-insured, does not alter whether the vehicle itself need or need not conform to (cont’d on next page)

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4. The case law cited by the Majority Opinion is inapposite and fails to distinguish Parks and its progeny.

The Majority Opinion’s attempt to distinguish Parks through various Court of Appeals

cases is unconvincing, given the rules of statutory construction previously discussed. The

Michigan Legislature did not limit the circumstances in which the court would first look at

whether security is required under the act before moving to a determination of priority

provisions. There is nothing within the four corners of MCL 500.3101(1) that permits a court to

ignore the “registered in this state” provision because one of several priority provisions in

section 3114 is worded differently than the provision analyzed in Parks. Indeed, this is the

lesson and rationale of Heichel.

The Majority Opinion relies primarily upon Farmers Ins Exch, supra and, to a lesser

extent, Titan v American Country Insurance Company, 312 Mich App 291; 876 NW2d 853

(2015). Neither of these cases survives the reasoning of the Court of Appeals in Heichel, in

which the court determined that while “Parks is not precisely on point,” its “core holding

underpins” the decision that an entity or insurer of a vehicle not required to be registered in

Michigan, and not operated in Michigan for more than 30 days, has no security obligation in the

first place under MCL 500.3101. Heichel, 2016 WL 805524 at *3. Finding that Parks instructed

specifically that the priority provisions found in § 3114 apply “only in the case in which the

insured vehicle is required to be registered in this state,” Heichel at *3, quoting Parks, 426 Mich

at 206, Heichel found that distinctions on which priority provision was involved made “no


the requirements of the act.” Parks, 426 Mich at 208.

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difference” to the application and governing nature of Parks:

“Parks is not precisely on point, as it arose from a work place injury in an employment context, did not involve a motorcycle, and dealt with a different subsection of MCL 500.3114. These distinctions make no difference.”

Heichel at *3 (Emphasis supplied). The Heichel court found that the vehicles in Heichel and

Parks were both owned by a self-insured nonresident company, each vehicle was registered in

another state, and neither was required to be registered in Michigan. The court further found

that in both cases, another insurer contended that the nonresident vehicle owner was liable

under MCL 500.3114, “regardless of whether the no-fault act required the owner to maintain

security on the vehicle.” Heichel at *3. Finally, the Heichel court presented the governing

nature of Parks in unequivocal terms:

“In Parks, the Supreme Court rejected the complaining insurer’s argument, holding that the registration requirement set forth in § 3101(1) is the key to viability under the no-fault act. A vehicle that does not need to be registered in Michigan cannot trigger the application of the priority provision set forth in MCL 500.3114. Parks, 426 Mich at 203-204. This core holding underpins our decision in this case.”

Heichel at *3 (Emphasis supplied). To repeat, none of the cases cited by the Majority Opinion

take into account the “core holding” of Parks: a priority dispute under § 3114 is immaterial

unless the involved vehicle is subject to the security provisions of the no-fault act.

5. Self-insured approval does not trump the terms of section 3101(1).

The Majority Opinion points to the approval by the Michigan Secretary of State of self-

insureds, thereby allegedly categorizing EAN as a commercial insurance company, and then

relies on the fact of that certification as somehow trumping the lack of any obligation to

provide security for PIP benefits in these circumstances. (Majority Opinion, p 11). Absent that

critical security obligation, Farmers cannot and does not make the claim for priority under the

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terms of section 3114(4). The self-insured empowerment acknowledged by the Secretary of

State is applicable, if at all, only where there is a security obligation. No such security obligation

exists under Michigan law. This Court would have to ignore this fact to distinguish Parks as

governing authority on the priority question.

6. EAN, as an alleged self-insured for non-Michigan registered vehicles, cannot be considered “the insurer” of the “owner or registrant” of the involved vehicles under section 3114(4)(a).

EAN argued to the Court of Appeals, as an additional ground for affirming the grant of

summary disposition, that EAN is not an “insurer” under MCL 500.3163. (Consolidated Brief on

Appeal, pp 23-25). The Majority Opinion rejected this argument, holding that “the Parks Court’s

conclusion on this issue is not as sweeping as Enterprise asserts” where “[t]he statutory rule is

that a self-insurer will be treated as an insurer under the no-fault act whenever the context

permits. (Majority Opinion, p 14). The analysis of the Majority Opinion is flawed.

EAN cannot be first in priority to pay the subject no-fault benefits because it is not an

“insurer” and thus does not fall under the phrase “[t]he insurer of the owner or registrant of

the vehicle….” MCL 500.3114(4)(a) (emphasis supplied). “[S]tatus as a self-insurer does not

place it [the self-insured entity] in the category of ‘[a]n insurer authorized to transact

automobile liability insurance and personal and property protection insurance in the state….’

MCL 500.3163(1).” Parks, 426 Mich at 208. The Parks court reached this conclusion “[b]ecause

the language of § 3163 is specific to ‘authorized’ insurers, [and] this is not a situation in which

the ‘context’ permits treating self-insurers as insurance companies, pursuant to § 3101(4) ….”

Id. The Parks court specifically found that a self-insured’s ownership of a motor vehicle does

not transform that owner, as self-insured, into an “insurer:”

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“Some may consider § 3163 to apply to Roadway because the accident arose from Roadway’s ownership of the motor vehicle. However, the mere fact that Roadway owned trailer number 95836 would not subject it to liability for Parks’ injury. The critical word is the possessive ‘its’ in the phrase ‘who is insured under its automobile liability insurance policies.’ The ‘its’ refers to the ‘insurer’ in the opening phrase of the section; therefore Roadway, as the out-of-state resident owner of the implicated motor vehicle, would be subject to liability only if it were an ‘insurer authorized to transact automobile liability insurance… in this state.’ Because Roadway is not ‘an insurer authorized to transact automobile liability insurance,’ it is not subject to ‘the personal and property protection insurance system set forth in this act.’ Thus, Roadway is not liable for Parks’ injury.”

Parks, 426 Mich at 208-209 (italics original; underline supplied).

Thus, to the extent that the Majority Opinion concludes that the language of MCL

500.3163 renders EAN an “insurer” because of the alleged ownership and self-insured status of

vehicles that are not required to be registered in Michigan, this is an error.20 As Parks

indicated, “[t]his is not a situation in which the ‘context’ permits treating self-insurers as

20 MCL 500.3163 provides:

“An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile insurance policies, is subject to the personal and property protection insurance system under this Act.”

In Parks, the personal no-fault carrier for the plaintiff so argued and the Supreme Court responded, “[t]his argument must fail under the plain language of the statute . . . Roadway’s status as a self-insurer does not place it in the category of ‘[a]n insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state . . .’ MCL § 500.3163(1).” Parks, 426 Mich at 208. “Because the language of § 3163 is specific to ‘authorized’ insurers, this is not a situation in which the ‘context’ permits treating self-insurers as insurance companies, pursuant to § 3101(4) . . . .” Id. “Because Roadway is not ‘an insurer authorized to transact automobile liability insurance,’ it is not subject to ‘the personal and property protection insurance system set forth in this act [§ 3163]’ thus, Roadway is not liable for Parks’ injury.” Id. at 208-209.

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insurance companies….” Id.

Farmers Ins Exch, supra does not discredit this point, in which the Court of Appeals

resolved a dispute between “insurers” registered to write automobile insurance coverage in

Michigan. The dispute was over the applicability of MCL 500.3114(5)(a), which requires an

“insurer to pay an injured motorcyclist no-fault benefits when the insurer did not issue a policy

covering the vehicle involved in the accident.” 272 Mich App at 110 (emphasis supplied).

Unlike here, in Farmers Ins Exch, there were no self-insured entities or vehicles involved in the

case.

7. Farmers does not contend it is outside of the order of priorities of section 3114(4).

Farmers does not contend it falls outside of the order of priorities found in subsection

3114(4). Instead, Farmers’ only argument is that EAN is higher in priority under subsection

3114(4)(a). Since this latter position is incorrect, Farmers is responsible for the subject PIP

benefits.

E. Conclusion.

The vehicles from which Farmers asserts first priority status to EAN were not registered

in Michigan. No security was required of EAN as the owner or registrant of the vehicles. No

priority provision was triggered.

The no-fault act further provides that if a nonresident vehicle owner exceeds certain

limitations on the usage of the vehicle within the state, it must comply with the act and secure

coverage in conformity with the provisions of the act. MCL 500.3102(1). Here, as a nonresident

owner of the subject motor vehicles, EAN was not required to supply the security required

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because the vehicles, at the time of the accident, were registered in other states. The vehicles

had not been operated in Michigan for an aggregate of more than 30 days in any one year prior

to the accident at issue. As discussed above, the Turner Majority Opinion directly conflicts with

the language of the no-fault act, and this Court’s proper application of the statutory language in

Parks. Peremptory reversal, or alternatively leave to appeal, is required.

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RELIEF REQUESTED

WHEREFORE, Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC, and

Enterprise Leasing Company request this Court grant leave to appeal or oral argument on the

application, reverse or vacate the Court of Appeals opinion, and reinstate the trial court’s order

granting summary disposition.


PLUNKETT COONEY

By: /s/Robert G. Kamenec Robert G. Kamenec (P35283) Hilary A. Ballentine (P69979) Attorneys for Appellants Enterprise Leasing Corporation of Detroit, LLC, EAN Holdings, LLC and Enterprise Leasing Company 38505 Woodward Ave., Suite 100 Bloomfield Hills, MI 48304 (248) 901-4068

Dated: May 28, 2019

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STATE OF MICHIGAN











TAMERA HARPER,




PATSY VILLNEFF,


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2







PROOF OF SERVICE/STATEMENT REGARDING E-SERVICE

STATE OF MICHIGAN ) )SS

COUNTY OF OAKLAND)

MONIQUE M. VANDERHOFF, being first duly sworn, deposes and says that she is an

employee with the firm of Plunkett Cooney, and that on May 28, 2019, she caused to be served

a copy of the Notice of Filing Application, Application for Leave to Appeal by Enterprise Leasing

Corporation of Detroit, LLC and EAN Holdings, LLC from COA Consolidated Docket Nos. 339624

and 339815, Index of Exhibits, Exhibits A-O, and Proof of Service/Statement Regarding E-Service

as follows:

Jordan A. Wiener (P70956) HEWSON & VAN HELLEMONT, P.C. Attorney for Defendant/Cross-Plaintiff/ Cross-Defendant-Appellee Farmers Insurance Exchange 25900 Greenfield Road, Suite 650 Oak Park, MI 48237 [email protected]

Counsel was served via TrueFiling

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mailto:[email protected]

3

Dodd B. Fisher (P51382) WHITING LAW Attorney for Plaintiff Walter Sakowski as Conservator for Meagan Turner 26300 Northwestern Hwy., Ste. 301 Southfield, MI 48076 [email protected]


Melissa A. Cox (P71972) James Pelland (P51237) Daniel J. Williams (P72085) FAUSONE BOHN, LLP Attorneys For Defendant Gary Duane Rupp 41700 W. Six Mile Road, Ste. 101 Northville, MI 48168 [email protected]


Stephen M. Wittbrodt (P76160) THE MICHIGAN LAW FIRM, PLLC Attorney For Intervening Plaintiff Riverview Macomb Home & Attendant Care, LLC 717 S. Eton Street Birmingham, MI 48009

Counsel was served via U.S. Mail, all postage prepaid

Brian D. Wright (P36862) JULIE A. TAYLOR & ASSOCIATES Attorney For Defendant/Cross Defendant/ Patsy Villneff 20750 Civic Center Dr., Ste. 400 Southfield, MI 48076 [email protected]


Daniel G. Romano (P49117) ROMANO LAW, PLLC Attorney for Plaintiff Jonte Everson 100 W. Big Beaver Road, Suite 650 Troy, MI 48084 [email protected]


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4

Michael D. Phillips (P73280) Attorney for Non-Party Michigan Automobile Insurance Placement Facility 1750 S. Telegraph, Suite 306 Bloomfield Hills, MI 48302 [email protected]


The undersigned further states that the Notice of Filing Application was served upon the

following courts:

Court of Appeals The court was served via TrueFiling

Wayne County Circuit Court The trial court was served via MFile (COA Docket No. 339624)

Washtenaw County Circuit Court Courthouse, 101 E. Huron P.O. Box 8645 Ann Arbor, MI 48107

The trial court was served via U.S. Mail, all postage prepaid (COA Docket No. 339815)

/s/Monique M. Vanderhoff MONIQUE M. VANDERHOFF

Open.08580.73520.22165888-1

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STATE OF MICHIGAN


WALTER SAKOWSKI, as Conservator for

MAEGAN TURNER,

(Jessica Jacobs),

Plaintiff,

and


Intervening Plaintiff,

V


SC No. -----COA No. 339624

LC No. 16-002031-NF

(Wayne Circuit Court)

Defendant/Cross-Plaintiff/Cross-Defendant-Appellee,

and

ENTERPRISE LEASING CORPORATION

OF DETROIT, LLC, and EAN HOLDINGS, LLC,

Defendants/Cross-Defendants-Appellants,

and

TAMERA HARPER,

Defendant/Cross-Defendant

and

GARY DUANE RUPP, as Personal Representative for the

ESTATE OF JASON PUCKETT,

Defendant/Cross-Plaintiff/Cross-Defendant,

V

PATSY VILLNEFF,

Cross-Defendant.

Consolidated With

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JONTE EVERSON,

Plaintiff, V

SC No. ------COA No. 339815 LC No. 16-359-NF (Washtenaw Circuit Court)




Third-Party Defendant-Appellant.

INDEX OF EXHIBITS TO APPLICATION FOR LEAVE TO APPEAL BY ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, EAN HOLDINGS, LLC AND


EXHIBIT DESCRIPTION LEITER

A Turner by Sakowski v Farmers Ins Exch, --- NW2d ---; 2019 WL 1648159 {Majority Opinion)

B Turner by Sakowski v Farmers Ins Exch, --- NW2d ---; 2019 WL 1648159 (Dissenting Opinion)

C Heichel v GEICO Indemnity Co, Court of Appeals Docket Nos. 323818, 324045, rel'd March 1, 2016 (unpublished); 2016 WL 805524, Iv den 500 Mich 921; 888 NW2d 84 (Mem) (2016)

D Almurisi v Avis Budget Car Rental, LLC, Wayne County Circuit Court Case No. 18-004875, Order Granting Defendant's Motion for Summary Disposition dated 1/17/19, and Order Denying Plaintiff's Motion for Reconsideration dated 4/15/19

E Walton v PV Holding Corporation d/b/a Avis Budget Group, LLC, et al (Wayne County Circuit Court Case No. 18-009945-NI), Order Granting Defendant PV Holding Corporation d/b/a Avis Budget Group, LLC's Motion for Summary Disposition, 3/6/19

F Walton v PV Holding Corporation d/b/a Avis Budget Group, LLC, et al (Wayne County Circuit Court Case No. 18-009945-NI), Opinion and Order Denying Reconsideration, 4/2/19

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EXHIBIT DESCRIPTION LEITER

G Harris v Avis Budget Car Rental, LLC, Case No. 18-004125-NF, Intervening Plaintiff's Motion for Partial Summary Disposition Against Defendant Avis Budget Car Rental Regarding Order of Priority, 4/29/19

H Walton v PV Holding Corporation d/b/a Avis Budget Group, LLC, et al, Case No. 18-009945-NI, Intervening Plaintiff's Supplemental Authority in Support of Motion for Reconsideration, 4/18/19

I Signed and Corrected Affidavit of Kristen Zub, dated February 17, 2017 J Maryland Motor Vehicle Registration K Opinion 5/5/17 L Order 5/5/17 M Order Denying Motion for Reconsideration, 7 /20/17 N Opinion and Order Granting Summary Disposition, 8/2/17 0 McMullen v Citizens Insurance Company, Court of Appeals Docket No. 332373,

rel'd June 13, 2017 (unpublished); 2017 WL 2562545

Open.08580. 73 520.22186495-1

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EXHIBIT A

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ff this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

MAEGAN TURNER, by WALTER SAKOWSKI, Conservator,

Plaintiff,

and



V


and

Defendant/Cross-Plaintiff/CrossDefendant-Appellant,


and

Defendants/Cross-DefendantsAppellees,

ESTATE OF JASON PUCKETT, by GARY DUANE RUPP, Personal Representative,

Defendant/Cross-Plaintiff,

and

FOR PUBLICATION April 16, 2019 9:00 a.m.

No. 339624 Wayne Circuit Court LC No. 16-002031-NF

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PATSY VILLNEFF and TAMERA HARPER,

Defendants/Cross-Defendants.

JONTE EVERSON,

Plaintiff,

v·


Defendant/Third-Party PlaintiffAppellant,

and


Third-Party Defendant-Appellee.

Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

BORRELLO, J.

No. 339815 Washtenaw Circuit Court LC No. 16-000359-NF

These consolidated appeals1 arise from insurer priority disputes under the Michigan nofault act, MCL 500.3101 et seq. In Docket No. 339624, Farmers Insurance Exchange appeals as ofright the Wayne Circuit Court's order granting summary disposition of its cross-complaint in favor of Enterprise Leasing Corporation of Detroit, LLC, and EAN Holdings, LLC. In Docket No. 339815, Farmers appeals as ofright the Washtenaw Circuit Court's order granting summary disposition on its third-party complaint in favor of Enterprise Leasing Company. For the reasons set forth in this opinion, we reverse and remand for further proceedings.

I. BACKGROUND

A. DOCKET NO. 339624

1 This Court consolidated these appeals ''to advance the efficient administration of the appellate process." Turner v Farmers Ins Exch, unpublished order of the Court of Appeals, entered March 14, 2018 (Docket Nos. 339624 and 339815).

-2-

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In Docket No. 339624, Maegan Turner was injured in a motor vehicle accident while riding as a passenger in car driven by Tamera Harper and which Harper had rented from Enterprise Leasing Corporation of Detroit, LLC. The car was registered in Maryland and owned by EAN Holdings, LLC, which had obtained a certificate of self-insurance that permitted it to operate as a Michigan automobile self-insured entity pursuant to MCL 500.310ld(l). For purposes of the instant appeal, there appears to be no substantial difference between Enterprise and EAN Holdings.2

Following the accident, Enterprise denied a request to pay personal protection insurance (PIP) benefits stemming from Turner's injuries. Enterprise concluded that it was not financially responsible for Turner's PIP benefits, asserting that the Michigan no-fault act was inapplicable because the rental car that Harper was driving was registered in Maryland and had not been operated in Michigan for more than 30 days at the time of the accident. Turner's claim for benefits was assigned to Farmers by the Michigan Automobile Insurance Placement Facility.

Turner subsequently initiated this lawsuit. During the course of the proceedings, Farmers filed a cross-claim seeking to have Enterprise declared the highest priority insurer such that Enterprise would be required to pay Turner's PIP benefits and reimburse Farmers for any benefits and expenses paid or incurred by Farmers in connection with Turner's claim for no-fault benefits. Farmers alleged that Enterprise was the insurer of the owner of the car that was involved in the motor vehicle accident and that the no-fault priority provision in MCL 500.3114( 4)(a) required a person who was injured while he or she was an occupant in a motor vehicle to claim PIP benefits from the insurer of the owner or registrant of the vehicle occupied. Thus, Farmers asserted, because Enterprise was an applicable source of PIP benefits for Turner under MCL 500.3 l 14(4)(a), Enterprise was higher in priority than Farmers as the assigned claims plan insurer.

Reiterating its argument that it was not required to pay PIP benefits under the no-fault act for its out-of-state vehicle, Enterprise moved under MCR 2.l 16(C)(8) and (IO) for summary disposition. Enterprise argued that the car in which Turner had been riding was not required to have been registered in Michigan and therefore Enterprise did not have to maintain the security for payment of PIP benefits that is otherwise required by MCL 500.3101 (1 ). Enterprise further argued that, as a nonresident corporation, it also was not required to maintain security on the car under MCL 500.3102( 1) because the car was not registered in Michigan and had not been operated in Michigan for an aggregate of more than 30 days within the relevant calendar year.

In making this argument, Enterprise relied on our Supreme Court's decision in Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191, 195-196; 393 NW2d 833 (1986). Parks involved an insurer priority dispute stemming from an accident involving an employee who was injured while occupying a vehicle owned by the employee's self-insured employer. Enterprise argues that Parks stands for, in relevant part, the proposition that "an out-of-state vehicle not required to be registered in Michigan and not operated in this state for more than thirty days is not subject to

2 Accordingly, we will refer to these entities collectively as "Enterprise" throughout this opinion.

" _.,_

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the security provisions" of the no-fault act. Accordingly, Enterprise argues, the priority provisions in MCL 500.3114 were therefore inapplicable to the instant case.

In response, Farmers argued that as the assigned claims insurer, it was merely the PIP provider of last resort when no other PIP coverage was available and that Enterprise was the entity actually obligated to provide Turner's PIP benefits. Farmers specifically argued that pursuant to MCL 500.3114( 4)(a), Enterprise was first in priority because it owned the vehicle at issue and was self-insured, thus making it the insurer of the "owner or registrant of the vehicle occupied." Farmers maintained that under MCL 500.3114(4)(a), it was irrelevant whether Enterprise was required to register the vehicle at issue in Michigan or maintain security on that particular vehicle because§ 3114(4)(a) was only concerned with the insurer "of the owner or registrant" of the vehicle and not with whether the particular vehicle involved in the accident was itself actually insured by the security required under the Michigan no-fault act.

In a written opinion, the trial court granted Enterprise's motion for summary disposition under MCR 2.l 16(C)(8) and (10) and ruled that Enterprise was not required to reimburse Farmers for benefits it paid to Turner. Relying on Parks,3 the trial court concluded that the priority statute was inapplicable to the instant case because the vehicle involved in the accident was registered in Maryland and was not driven in Michigan for more than 30 days or required to have been registered in Michigan, thus making the vehicle at issue not subject to the security requirements of the no-fault act. These appeals then ensued.

B. DOCKET NO. 339815

In Docket No. 339815, Jonte Everson was involved in a motor vehicle accident while driving a car that he had rented from Enterprise. The car was registered in Pennsylvania and owned by EAN Holdings. As in Docket No. 339624, evidence was submitted into the record that EAN Holdings had obtained a certificate of self-insurance for purposes of Michigan's nofault act. Additionally, the car had not been operated in Michigan for an aggregate of more than 30 days during the relevant calendar year. Everson made a claim for benefits through the Michigan Assigned Claims Plan, and his claim was assigned to Farmers.

3 The trial court also relied on this Court's unpublished opinion in Heichel v Geico Indemnity Co, unpublished per curiam opinion of the Court of Appeals, issued March 1, 2016 (Docket Nos 323818 and 324045), for the proposition that the no-fault act's priority provisions in MCL 500.3114 are completely inapplicable if the vehicle involved in an accident is not required to have been registered in Michigan. This Court in Heichel relied on our Supreme Court's decision in Parks to reach their decision. However, because we conclude that the Parks Court's analysis of MCL 500.3114(3) is not controlling on the question of the construction of MCL 500.3114(4)(a), we rely instead on this Court's published decision in Farmers Ins Exch v Farm Bureau Ins Co, 272 Mich App 106; 724 NW2d 485 (2006), which involved analysis of language in Subsection (5)(a) that is virtually identical to the language in Subsection (4)(a) that is at issue in the instant case.

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After Everson initiated this lawsuit against Farmers, Farmers filed a third-party complaint against Enterprise in which Farmers sought a declaration that Enterprise was higher in priority and was liable to pay any no-fault benefits owed to Everson, including reimbursement to Farmers for any no-fault benefits it was required to pay to or for the benefit of Everson. As in Docket No. 339624, the sole matter requiring resolution at this juncture in Docket No. 339815 is the priority dispute between Farmers and Enterprise.

Enterprise moved for summary disposition pursuant to MCR 2. l l 6(C)(8) and (10), making essentially the same argument that it made in Docket No. 339624. Farmers opposed the motion, also making essentially the same argument that it made in Docket No. 3.39624.

The trial court granted summary disposition in favor of Enterprise under MCR 2.l l 6(C)( 10). Relying on Parks,4 the trial court ruled that Enterprise was entitled to summary disposition because there was no genuine issue of material fact that the car that Everson was driving had not been operated in Michigan for an aggregate of more than 30 days during the calendar year. The trial court reasoned that a "vehicle that is exempt from registration in Michigan cannot and does not trigger application of the statutory order of priority under no-fault law."

II. ST AND ARD OF REVIEW

A trial court's summary disposition ruling is reviewed de novo to determine whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Because it is necessary in these consolidated cases to consider material outside the pleadings, we review the summary disposition rulings of the respective trial courts as having been granted under MCR 2. l l 6(C)( 10). See Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). In doing so, a court must consider "affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion." Maiden, 461 Mich at 120 (citation omitted). "A trial court may grant a motion for summary disposition under MCR 2.l l 6(C)(l 0) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Quinto v Cross & Peters Co, 451 Mich 358,362; 547 NW2d 314 (1996). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Additionally, issues of statutory interpretation are reviewed de novo. In re Bradley Estate, 494 Mich 367, 377; 835 NW2d 545 (2013).

III. ANALYSIS

On appeal, Farmers argues as it did below, that Enterprise is higher in priority because Enterprise was self-insured and owned the vehicles involved in each of the accidents, and MCL

4 Like the trial court in Docket No. 339624, the trial court in Docket No. 339815 also relied on this Court's unpublished opinion in Heichel.

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500.3 l 14(4)(a) provides that PIP benefits must be paid by the "insurer of the owner or registrant of the vehicle occupied" regardless of whether the particular vehicle involved in the accident was actually insured or required to be insured. (Emphasis added.) Enterprise, also arguing consistently with its position at the trial court level, maintains that under Parks, 426 Mich at 203-207, the priority provisions in MCL 500.3114 are completely inapplicable and Enterprise cannot be considered the "insurer of the owner or registrant of the vehicle occupied" for purposes of § 3114( 4)(a) because Enterprise was not required to maintain no-fault security on the vehicles.

In opposition, Enterprise argues that as a nonresident corporation, it was exempt from the security mandates of§§ 3101(1.)5 and 3102(1)6 of the no-fault act because the vehicles at issue were not required to have been registered in Michigan and were not operated in Michigan for an aggregate of more than 30 days in the calendar year at issue. Enterprise thus argues that because it was not required to maintain no-fault security on the specific vehicles involved in each of the accidents, the priority provisions of the no-fault act do not apply and it cannot be liable for paying PIP benefits based on the accidents involving those specific vehicles.

The issue before us concerns the construction of various provisions of the no-fault act. "When interpreting statutes, our primary goal is to ascertain and give effect to the intent of the Legislature." Averill v Dauterman, 284 Mich App 18, 22; 772 NW2d 797 (2009). We first consider the "fair and natural import of the terms employed" in the statutory language, in light of the subject matter of the law. Id. If the plain and ordinary meaning of the statute is clear, then it is enforced as written and judicial construction is "normally neither necessary nor permitted." Id.

We begin our analysis with the no-fault act priority provisions contained in MCL 500.3114. Under MCL 500.3114(1), a person seeking no-fault benefits must generally look first to his or her own insurer,7 unless one of the exceptions in MCL 500.3114(2), (3), or (5) applies.

5 MCL 500.3101(1) provides in relevant part as follows:

The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security is only required to be in effect during the period the motor vehicle is driven or moved on a highway.

6 MCL 500.3102(1) provides as follows:

A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter.

7 Under this general first priority rule, an injured person also may be covered under the no-fault policy of certain relatives. More specifically, the statutory provision states in relevant part as

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Farmers Ins Exch v Farm Bureau Ins Co, 272 Mich App 106, 111; 724 NW2d 485 (2006). In the instant case, it is undisputed that none of these exceptions apply, and there is also no dispute between the parties that neither Turner nor Everson had an applicable policy of no-fault insurance under § 3114(1 ). In such a case, when Subsection (1) applies but there is no available insurer, we next look to Subsection ( 4) because these two subsections "together establish the general order of priority." Titan Ins Co v American Country Ins Co, 312 Mich App 291, 301; 876 NW2d 853 (2015) ( quotation marks and citation omitted). MCL 500.3114( 4) provides in pertinent part as follows:

[A]. person suffering accidental bodily injury ansmg from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:


(b) The insurer of the operator of the vehicle occupied. [Emphasis added.]

Finally, under "certain limited circumstances, a person may also claim benefits through the Assigned Claims Facility under MCL 500.3172(1 )." Farmers Ins Exch, 272 Mich App at 112. Section 3172(1) provides in as follows:

A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through the assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, the personal protection insurance applicable to the injury cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In that case, unpaid benefits due or coming due may be collected under the assigned claims plan and the insurer to which the claim is assigned is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.

"Under the no-fault act, the Assigned Claims Facility represents the insurer of last priority." Spencer v Otizens Ins Co, 239 Mich App 291, 301; 608 NW2d 113 (2000).

follows: "Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101 ( 1) applies to accidental bodily injury to the person named in the policy, the person's spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident." MCL 500.3114(1 ). In this case, it is undisputed that neither Turner nor Everson had any available no-fault insurance coverage under MCL 500.3114(1 ).

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Resolution of the instant appeal turns on the meaning of the language in § 3 l 14(4)(a) providing that "a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits" first from the "insurer of the owner or registrant of the vehicle occupied." (Emphasis added.)

Essentially the same language appears in the priority provision in MCL 500.3 l 14(5)(a), which is an exception to Subsection (I) and applies when a motorcycle rider is injured in a motor vehicle accident involving a motor vehicle. Farmers Ins Exch, 272 Mich App at 111. Section 3 l 14(5)(a) provides as follows:

A person suffering accidental bodily injury arising from a motor vehicle accident that shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident. [Emphasis added.]

In Farmers Ins Exch, this Court interpreted this language in MCL 500.3114( 5)( a) in a case analogous to the issue presented here. In Farmers Ins Exch, a motorcyclist was injured when he was struck by an uninsured van. Farmers Ins Exch, 272 Mich App at I 08. However, the defendant insurance company had issued a no-fault insurance policy to one of the van's owners. Id. The policy listed another vehicle owned by the insured, but it did not list the van that was involved in the accident or the insured's girlfriend who was driving the van when the accident occurred. Id. The motorcyclist submitted a claim for first-party no-fault benefits through the Assigned Claims Facility, and the claim was assigned to the plaintiff insurance company. Id. The plaintiff subsequently sought to make the defendant begin paying no-fault benefits to the motorcyclist, as well as reimbursement from the defendant for benefits the plaintiff had already paid. Id. The plaintiff argued that the defendant was first in priority under MCL 500.3114(5), while the defendant argued that it had no obligation under that statute to pay. Id.

In describing the issue presented on appeal in Farmers Ins Exch, this Court stated:

The issue before us is whether MCL 500.3 l 14(5)(a) requires an insurer to pay an injured motorcyclist no-fault benefits when the insurer did not issue a policy covering the vehicle involved in the accident. Defendant's position is that MCL 500.3 l 14(5)(a) does not require payment of no-fault benefits because MCL 500.3 l 14(5)(a) only requires an insurer to provide no-fault benefits under these facts if the insurer actually insured the motor vehicle involved in the accident. Plaintiffs position is that MCL 500.3 l 14(5)(a) does require payment of no-fault benefits because the plain language of MCL 500.3114(5)(a) states that the insurer need not insure the vehicle in the accident, but must insure the owner or registrant. [Farmers Ins Exch, 272 Mich App at 110-111.]

This Court then analyzed the statutory language as follows:

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MCL 500.3114(5)(a) states that the insurer is liable ifit is "[t]he insurer of the owner or registrant of the motor vehicle involved in the accident." In order to scrutinize the plain language of the statutory sentence, we consult the dictionary definition of the word "0£" The word "of' is "used to indicate inclusion in a ... class" and "used to indicate possession or association ... " Random House Webster's College Dictionary (1997). The sequential prepositional phrases "of the owner or registrant" and "of the motor vehicle involved in the accident" define the relevant insurer. The first prepositional phrase, "of the owner or registrant," establishes a relationship between the "insurer" and an individual "owner or registrant" on the basis of the contractual nature of the parties' relationship. The second phrase establishes a relationship between an individual "owner or registrant" and "the motor vehicle involved in the accident" on the basis of "the owner or registrant['s]" possession of "the motor vehicle involved in the accident."

The prepositional phrases demarcate contracting parties, with the first party defined by the contractual relationship and the second party defined by the possessive relationship. Pursuant to the plain language of the statute, all that is required for an insurer to be first in priority to pay no-fault benefits is to insure "the owner or registrant of the motor vehicle involved in the accident." In other words, the plain language ofMCL 500.3114(5)(a) states that the insurer need not ins1:1re the vehicle in the accident, but must insure the owner or registrant. Here, because defendant insured Petiprin, who owned the van involved in the accident, defendant is first in priority to provide benefits under MCL 500.3114( 5)( a). Had the Legislature intended MCL 500.3114(5)(a) only to require an insurer to provide no-fault benefits if the insurer actually insured the motor vehicle involved in the accident, it could have chosen the following language for MCL 500.3114(5) (a): "The insurer of the motor vehicle involved in the accident," deleting the first prepositional phrase, "of the owner or registrant." Clearly, the Legislature did not choose that language, and for us to adopt defendant's position would be to render the phrase "of the owner or registrant" in the statute nugatory.

Defendant asserts that by repeating the article "the" in MCL 500.3114(5)(a), the Legislature intended to ''particularize the subject matter," i.e., to indicate that priority is limited to "the insurer of the motor vehicle involved in the motor vehicle accident." Again, to interpret the statute as defendant suggests is contrary to the plain language of the subsection and renders meaningless the qualifying phrase, "the owner or registrant of." If the Legislature had intended to limit MCL 500.3114(5)(a) as defendant suggests, it could have done so, but it did not. Because the plain language of MCL 500.3114(5)(a) requires that an insurer that insures an owner or registrant who owns the motor vehicle involved in an accident with a motorcycle is first in priority to pay no-fault benefits to the injured person, further construction is not permitted. Our holding "is consistent with the legislative intent that persons rather than vehicles be insured against loss." Pioneer State Mut Ins Co v Titan Ins Co, 252 Mich App 330, 337; 652 NW2d 469 (2002).

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Further supporting our reasoning in this case is this Court's holding in Pioneer, supra. In construing similar language in MCL 500.31 l5(1)(a), the Court in Pioneer concluded that an insurer is required to provide no-fault benefits regardless of whether the insurer covered the motor vehicle involved in the accident. Pioneer, supra at 336. MCL 500.3115(1) establishes the priority in which an uninsured nonoccupant of a vehicle must claim no-fault benefits and provides in relevant part as follows:

Except as provided in subsection (I) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) Insurers of owners or registrants of motor vehicles involved in the accident. [Emphasis added.]

The Pioneer Court was called on to construe MCL 500.3115(1)(a), and it concluded:

This statutory language clearly states that the insurer of the owner or registrant of the motor vehicle involved in the accident is liable for payment of personal protection insurance benefits ... [T]he statute does not state that the injured person must seek these benefits from the insurer of the motor vehicle. Stated another way, the statute does not mandate that the vehicle involved in the accident must have been insured by the insurer of the owner before an injured person can seek benefits. [Pioneer, supra at 336.]

Because the language in MCL 500.3115(1 )(a) is materially identical to that in MCL 500.3114( 5)( a), the Pioneer reasoning also applies in this case and supports our holding. [Farmers Ins Exch, 272 Mich App at 113-115 (alterations and ellipses in original; some citations omitted).]

Here, the language in MCL 500.3114(4)(a) is materially identical to the language in MCL 500.3114(5)(a). Accordingly, the analysis in Farmers Ins Exch applies to the construction of § 3114(4)(a). Id. at 115. Thus, we adopt the reasoning of Farmers Ins Exch for purposes of the instant case. See also Titan Ins Co, 312 Mich App at 295, 302 (holding that priority is determined under § 3114(4) by looking to the insurer of other vehicles owned by the owner of the particular uninsured vehicle that was involved in a motor vehicle accident). Section 3 l l 4(4)(a) plainly refers to the insurer of the vehicle's "owner or registrant," regardless of whether the particular vehicle involved in the accident was actually covered by the security described in § 310 l (I).

Applying the analytical framework set forth in Farmers Ins Exch to the facts of this case, we find no dispute that Enterprise was the owner and registrant of the vehicles at issue that were occupied by Turner and Everson respectively when each of the accidents occurred. Furthermore, there is no dispute that Enterprise was self-insured. The issue then becomes whether Enterprise,

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as a self-insured entity that was the owner and registrant of the vehicles at issue, may be considered the "insurer of the owner or registrant."

MCL 500.310 I (I) mandates that an "owner or registrant of a motor vehicle required to be registered in this state ... maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance." The no-fault act permits an entity to satisfy this requirement by becoming a self-insurer rather than obtaining a policy of no-fault insurance. Specifically, MCL 500.3101(4) provides as follows:

. Security required by subsection (I) may be provided by any other method approved by the secretary of state as affording security equivalent to that afforded by a policy of insurance, if proof of the security is filed and continuously maintained with the secretary of state throughout the period the motor vehicle is driven or moved on a highway. The person filing the security has all the obligations and rights of an insurer under this chapter. When the context permits, "insurer" as used in this chapter, includes a person that files the security as provided in this section. [Emphasis added.]

Additionally, MCL 500.3 l Old states in pertinent part:

(I) A person in whose name more than 25 motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the commissioner under subsection (2).

(2) the commissioner may, in his or her discretion, on the application of a person who wishes to qualify under subsection (I), issue a certificate of selfinsurance to the person if the commissioner is satisfied that the person has and will continue to have the ability to pay judgments obtained against the person.

The plain language of MCL 500.3114( 4)( a) refers to the "insurer of the owner or registrant" and must therefore mean the entity providing no-fault insurance for the owner or registrant. There was evidence in the records below that Enterprise had formalized its status as a self-insurer under the Michigan no-fault act by obtaining the certificate of self-insurance described in MCL 500.310 Id. Enterprise manifested its intent to comply with the requirements of the Michigan no-fault act's security mandate by using its own means to provide "security equivalent to that afforded by a policy of insurance," thus functioning as its own insurer. MCL 500.3101(4). In light of the specific language ofMCL 500.3114(4)(a) and the function of a selfinsurer, we conclude that it is permissible in this context to include a self-insured entity such as Enterprise within the meaning of the term "insurer" as used in MCL 500.3 l 14(4)(a). MCL 500.3101(4); MCL 500.310ld(l) and (2); see also Allstate Ins Co v Elassal, 203 Mich App 548, 554; 512 NW2d 856 (1994) (stating that the "no-fault act explicitly treats a self-insurer as an insurer, with 'all the obligations and rights of an insurer' " and further noting that "selfinsurance, as certified by the Secretary of State, is the functional equivalent of a commercial insurance policy, with the purpose of either form being to compensate victims properly"), quoting MCL 500.3101(4).

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However, such a conclusion does not finish our analysis. We must also address Enterprise's argument that the priority provision in MCL 500.3 l 14(4)(a) does not even apply because, according to Enterprise, it was exempt from the mandatory no-fault security requirements with respect to the vehicles involved in the accidents at issue. Enterprise argues that because the vehicles at issue were not "required to be registered in this state," it was not obligated to maintain the no-fault security mandated under MCL 500.3101(1) on those vehicles. Enterprise further argues that it is a nonresident entity and that the vehicles at issue were not operated in Michigan for an aggregate of more than 30 days in the relevant calendar year in each case, thus also negating any requirement to maintain no-fault security as set forth in MCL 500.3102(1). That statute provides as follows:

A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter. [MCL 500.3102(1).]

Consequently, Enterprise maintains that pursuant to Parks, 426 Mich at 203-207, it cannot be responsible for paying the no-fault benefits at issue in this case because the priority provisions in MCL 500.3114 cannot be triggered when the particular vehicle at issue is not required to be covered by the security described in § 3101 (1) of the no-fault act.

In Parks, 426 Mich at 196-197, an employee was injured while working inside a trailer that was owned by his self-insured employer, was not registered in Michigan, and which had not been operated in Michigan for an aggregate of more than 30 days during that calendar year. The relevant issue in that case concerned the application of the priority provision implicated under such circumstances, which is contained in MCL 500.3114(3). Id. at 203. That statute provides that an "employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle." MCL 500.3114(3) (emphasis added). In Parks, our Supreme Court held "that an out-of-state vehicle not required to be registered in Michigan and not operated in this state for more than thirty days is not subject to the security provisions or § 3114(3) of the no-fault act and that when an employee is injured while an occupant of such a vehicle, the employee's personal insurer, if there is one, must pay the employee's personal protection benefits under§ 3101(1). Parks, 426 Mich at 196. The Court specifically explained that ''the exception of an employee injured in an employer's vehicle contained in subsection 3 of§ 3114 applies only in the case in which the insured vehicle is required to be registered in this state" and that "because the vehicle was not registered in this state and thus the exception of subsection 3 does not apply, we look to the general intention of the Legislature in § 3114(1) to provide compensation for liability through the injured person's personal insurer." Id. at 206.

We conclude that Parks is not controlling of the specific issue presented in the instant case for several reasons. First, the Court in Parks was primarily concerned with a different priority provision-§ 3114(3)-than the one at issue in the instant cases-§ 3 l 14(4)(a). Parks,

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426 Mich at 196. Although the Parks Court addressed § 3114( 4) in a footnote, the Court merely stated that

[t]hose injured while occupants of motor vehicles must look to the rules provided in subsections 1, 2, and 3 before applying the priorities listed in subsection 4. The implication of the phrase "owner or registrant" was not extensively argued. But we assume subsection 4 does not apply because we read the phrase "owner or registrant of the vehicle occupied" within subsection 4 to be part of the more complete requirement as stated in§ 3101(1): "The owner or registrant of a motor vehicle required to be registered in this state" . .. [Parks, 426 Mich at 203 n 3.]

We note that the Parks Court merely assumed this to be true without actually analyzing or deciding this issue. Moreover, there was no need to reach Subsection (4) in Parks because the issue in that case became whether the self-insured employer was first in priority under Subsection (3) or, if not, the employee's personal insurer was first in priority under Subsection (I). Id. at 196, 203, 206. Subsection ( 4) only comes into play if there is no available insurer under Subsection (I). Titan Ins Co, 312 Mich App at 301. The Parks Court's brief statement regardh1g Subsection (4) was thus nonbinding obiter dictum. Auto Owners Ins Co v Seils, 310 Mich App 132, 160 n 7; 871 NW2d 530 (2015) ("Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, lack the force of an adjudication.") ( citation and quotation marks omitted). We further note that "motor vehicle" is specifically defined for purposes of the no-fault act to mean "a vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels." MCL 500.3101(2)(i). For these reasons, we conclude that Parks does not bind this Court to reach a certain result with respect to the meaning of Subsection (4)(a) and, contrary to Enterprise's argument, Parks is not dispositive in resolving the instant priority dispute.

Second, the language of§ 3114(3) explicitly ties the insurer's priority status to whether it insured ''the furnished vehicle," while the language of§ 3114(4)(a) instead ties the insurer's priority status to whether it insured the vehicle's ''owner or registrant." With respect to Subsection (3), Parks instructs that if the employer was not required to maintain no-fault security on the vehicle at issue, then the employer is not liable for paying PIP benefits under Subsection (3). Parks, 426 Mich at 206-207. However, as we have previously discussed, Subsection (4)(a) assigns liability to the insurer of the vehicle's owner or registrant without regard for whether nofault security was actually maintained on the particular vehicle itself Farmers Ins Exch, 272 Mich App at 113. Therefore, this distinction in language between Subsections (3) and (4)(a) matters, and Parks is not persuasive or controlling on the issue of ascertaining the meaning of Subsection (4)(a).

Third, and as we have already somewhat alluded to during the course of our analysis, considering that Subsection (4)(a) makes the insurer of the vehicle's owner or registr.ant the focus (rather than the insurer of the vehicle itself), the questions whether the vehicles at issue were required to be registered in Michigan or were covered by no-fault security are completely irrelevant for purposes of determining priority when that determination is to be made under MCL 500.3114( 4)(a).

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Next, Enterprise makes an additional argument that it is not first in priority for the independent reason that it is not an "insurer" as that term is used in § 3114( 4)( a). In making this argument, Enterprise relies on the Parks Court's statement that for purposes of MCL 500.3163(1), "status as a self-insurer does not place it in the category of '[a]n insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state ... ' " Parks, 426 Mich at 208 ( ellipsis in original). MCL 500.3163( 1) provides in full as follows:

An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a. written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, is subject to the personal and property protection insurance system under this act.

However, the Parks Court's conclusion on this issue is not as sweeping as Enterprise asserts. The statutory rule is that a self-insurer will be treated as an insurer under the no-fault act wherever the context permits. See MCL 500.3101(4). Thus, the fact that our Supreme Court has held that a self-insurer will not be treated as an "insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state" under § 3 163( 1) does not equate to a finding that a self-insurer cannot be treated as an "insurer" under § 3 l 14(4)(a). We have already explained why the context of§ 3114(4)(a) pe1mits treating a selfinsurer as an "insurer" under that statutory provision based on the self-insurer's obligation to provide "security equivalent to that afforded by a policy of insurance" under MCL 500.3101(4).8

We therefore reject Enterprise's argument that it is not an "insurer" in this context.

In this case, Enterprise is higher in priority than Farmers, under § 3114(4)(a) because Enterprise was self-insured and therefore was the insurer of the vehicles' owner and registrant; Parks does not compel a different result.9

8 Our conclusion is further supported by comparing MCL 500.3101 ( 4), which has already been quoted in this opinion, with MCL 500.3101(3). MCL 500.3101(3) provides as follows:

Security required by subsection (1) may be provided under a policy issued by an authorized insurer that affords insurance for the payment of benefits described in subsection (1 ). A policy of insurance represented or sold as providing security is considered to provide insurance for the payment of the benefits. 9 Enterprise also relies on this Court's unpublished decision in Heichel, unpub op at 5-6, which in analyzing § 3114( 5), relied in Parks to hold that "[a] vehicle that does not need to be registered in Michigan cannot trigger the application of the priority provisions set forth in MCL 500.3114." In so holding, the panel in Heichel concluded that EAN was not liable for paying first-party no-fault benefits to a motorcyclist that had been in an accident with a car that had been rented from Enterprise but was owned by EAN, registered in North Carolina, and had been in

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IV. CONCLUSION

We hold that in the case of a qualified self-insurer under Michigan's no-fault act, the priority provision in MCL 500.3114(4)(a) refers to that self-insurer as the insurer of the motor vehicle's "owner or registrant," regardless of whether the particular vehicle involved in an accident was required to be covered by no-fault security under MCL 500.3101(1) or MCL 500.3102(1). Accordingly, in both Docket No. 339624 and Docket No. 339815, we reverse because Enterprise was higher in priority pursuant to MCL 500.3114(4)(a) and Farmers was entitled to summary disposition in its favor. We remand in both cases for further proceedings consistent with this opinion. Io

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Appellant having prevailed in full is entitled to costs. MCR 7.2 l 9(A).

/s/ Stephen L. Borrello /s/ Mark J. Cavanagh

Michigan less than 30 days. Id. at 2-3. Nonetheless, as previously mentioned, we are not bound by unpublished decisions of this Court, MCR 7.215(C)(l), and we do not find the Heichel decision to be persuasive for the same reasons that we conclude that our decision in the instant appeal is not governed by Parks.

IO In light of our resolution of this issue, the remaining arguments by Farmers regarding Enterprise's residency are moot and we decline to address them. BP 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 ( 1998).

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EXHIBIT B

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If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

MAEGAN TURNER, by WALTER 'SAKOWSKI, Conservator,

Plaintiff, and



V


Defendant/Cross-Plaintiff/CrossDefendant-Appellant,

and


and

Defendants/Cross-DefendantsAppellees,

ESTATE OF JASON PUCKETT, by GARY DUANE RUPP, Personal Representative,

Defendant/Cross-Plaintiff, and

PATSY VILLNEFF and TAMERA HARPER,

Defendants/Cross-Defendants.

-1-

FOR PUBLICATION April 16, 2019

.·,:,""' No. 339624 Wayne Circuit Court LC No. 16-002031-NF

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JONTE EVERSON,

Plaintiff,

V


Defendant/Third-Party PlaintiffAppellant,

and


Third-Party Defendant-Appellee.

Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

REDFORD, J. (dissenting).

No. 339815 Washtenaw Circuit Court LC No. 16-000359-NF

I respectfully dissent from the majority's decision. I would affirm the trial courts' orders granting summary disposition in favor of defendants Enterprise Leasing Corporation of Detroit, LLC, and EAN Holdings, LLC, in Docket No. 339624 and in favor of Enterprise Leasing Company in Docket No. 339815.1 Both this Court's and our Supreme Court's decisions establish that the no-fault insurance sections that require coverage, MCL 500.3101(1)2 and MCL 500.3102(1 ),3 do not apply to either vehicle in the two matters at bar because they were out-of-

1 I refer to these defendants collectively as "Enterprise." 2 MCL 500.3101(1) provides:

The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security is only required to be in effect during the period the motor vehicle is driven or moved on a highway. Notwithstanding any other provision in this act, an insurer that has issued an automobile insurance policy on a motor vehicle that is not driven or moved on a highway may allow the insured owner or registrant of the motor vehicle to delete a portion of the coverages under the policy and maintain the comprehensive coverage portion of the policy in effect.

3 MCL 500.3102(1) provides:

A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle

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state vehicles, not required to be registered in Michigan, that were not operated in Michigan for more than 30 days in any given year. Consequently, MCL 500.3114(4) does not require that Enterprise, as the self-insured owner of the vehicles, provide the no-fault benefits in this case. This result is consistent with this Court's decision in Covington v Interstate Sys, 88 Mich App 492; 277 NW2d 4 (1979), and our Supreme Court's decision in Parks v Detroit Auto Inter-Ins Exch, 426 Mich 19 l; 393 NW2d 833 (1986), two cases that arose from facts similar to the matters at bar.

In Covington, a case involving an employee who suffered injuries in an accident while driving his employer's truck that was registered and licensed in another state and self-insured by his employer, this Court explained:

According to the express language of [MCL 500.3101(1)] only those vehicles required to be registered in this state are subject to the requirements of the no-fault act. It is uncontroverted that the truck plaintiff was driving at the time of the accident was neither registered in this state, nor required to be registered in this state. Consequently, it did not fall within the class of vehicles covered by this section of the no-fault act. [Covington, 88 Mich App at 494.]

This Court clarified that, under MCL 500.3102(1), the only other coverage section ofthe no-fault act, because the vehicle the plaintiff drove at the time of the accident had not been operated in Michigan for more than 30 days in any given year, the no-fault coverage provided by that section was also inapplicable. Id. Consequently, because "neither coverage section of the no-fault act is applicable to the truck in question, the truck was not a covered vehicle under the no-fault act and plaintiff is not entitled to no-fault benefits from defendant." Id. at 494-495.

In Parks, 426 Mich at 196-197, an employee suffered an injury while unloading his employer's trailer that was registered and licensed in another state and self-insured by his employer. The trailer had been operated in Michigan for only a few days. The issue before our Supreme Court concerned which of three insurers was required to pay the plaintiffs personal protection insurance benefits: his personal auto insurer; his employer, as a self-insurer; or the Assigned Claims Facility under MCL 500.3171 et seq. Id. at 198. The plaintifPs insurer contended that the nonresident vehicle owner bore liability under MCL 500.3114, regardless of whether the no-fault act required the owner to maintain security on the vehicle. Id. at 201. Our Supreme Court approvingly applied the analysis of the no-fault act as articulated by this Court in Covington and explained:

From a clear reading of the no-fault act and the reasoning of the cited case law, we find the following: First, the plain language of§ 3101(1) subjects only those vehicles required to be registered in this state to the mandatory security requirements. The fact that a vehicle is actually covered by an insurance policy,

to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter.

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or that the owner of the vehicle is self-insured, does not alter whether the vehicle itself need or need not conform to the requirements of the act. Second, the policy of the Legislature was to provide a method whereby persons injured in automobile accidents would be readily provided relief from the results of their injury. Third, the primary method of accomplishing this result, from the general rule in § 3114(1 ), is that one looks to one's own insurer for no-fault benefits unless one of the statutory exceptions applies. Fourth, the exception of an employee injured in an employer's vehicle contained in subsection 3 of§ 3114 applies only in the case in which the insured vehicle is required to be registered in this state. Fifth, because the vehicle was not registered in this state and thus the exception of subsection 3 does not apply, we look to the general intention of the Legislature in § 3114(1) to provide compensation for liability through the injured person's personal insurer. [Id. at 206.]

Our Supreme Court made clear in Parks that, if the vehicle involved in the accident does not need to be registered in Michigan, the priority provisions set forth in MCL 500.3114 do not apply.4

In reviewing the majority opinion, I do not disagree with my colleagues that if MCL 500.3114(4) applied in this case, as Farmers Ins Exch v Farm Bureau Gen Ins Co of Mich, 272 Mich App 106; 724 NW2d 485 (2006), found MCL 500.3114(5) to apply in that case, then reversal would be appropriate. However, the facts, analysis, and holding of Parks and Covington lead to a contrary result.

In Parks and Covington, the motor vehicles involved were not registered in the state of Michigan, neither of the vehicles had operated in the state for more than 30 days aggregate, and both vehicles were owned by self-insured entities. In each case, the courts concluded that, because neither MCL 500.3101 nor 500.3102 applied to the vehicles in question, the priority provisions of MCL 500.3114 did not apply and the self-insured out-of-state owners were not required to pay no-fault first-party benefits.

In Farmers, 272 Mich App at 108, the operator of a motorcycle was injured when he was struck by an uninsured van driven by Lynn Smith. On the day of the accident, the van was uninsured because of a failure to pay the insurance premium. 5 The van was owned by Lynn Smith and John Petiprin. Petiprin also owned another vehicle that was insured by Farm Bureau Insurance Company. Farm Bureau Insurance,Company refused to pay the motorcyclist's no-

4 As is indicated in the majority opinion, the issues at bar were addressed in Heichel v Geico Indemnity Co, unpublished per curiam opinion of the Court of Appeals, issued March 1, 2016 (Docket Nos. 323818 and 324045), Iv den 500 Mich 921 (2016). The Heichel panel followed Parks's instruction that the priority provisions of MCL 500.3114 only apply if the insured vehicle was required to be registered in Michigan. 5 The clear implication of this statement in the Farmers case is that the van in question was a vehicle to which MCL 500.3101 applied.

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fault first-party benefits. The Assigned Claims Facility assigned the case to the plaintiff, Farmers Insurance Exchange. The plaintiff brought suit to compel the defendant to pay the nofault first-party benefits. The trial court granted summary disposition in favor of the plaintiff, Id. at 109, and the Court of Appeals upheld that decision "[b]ecause the trial court properly construed MCL 500.3114(5)(a) to require that an insurer that insures an owner or registrant who owns the motor vehicle involved in the accident with a motorcycle is first in priority to pay no-

fault benefits to the injured person .... " Id. at 107.

In my opinion, Parks and Covington control this case. Because the vehicles involved in the accidents in the two cases at bar were registered and licensed in another state and were ·not operated in Michigan for more than 30 days in any given year, the self-insured owners were not required by the no-fault act to provide first-party no-fault benefits to the injured occupants of the motor vehicles involved in the two collisions. Therefore, as Parks directs, the priority provisions set forth in MCL 500.3114 do not apply, the owners of the vehicles cannot be held liable, and plaintiffs' no-fault claims should be covered by the insurers assigned the claims as provided under the no-fault act. For these reasons, I would affirm.

/s/ James Robert Redford

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EXHIBIT C

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Heichel v. Geico lndem. Co., Not Reported in N.W.2d (2016)

2016 WL 805524

2016 WL 805524 Only the Westlaw citation

is currently available.

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

UNPUBLISHED Court of Appeals of Michigan.

Adam HEICHEL, Plaintiff, and

St. John Macomb-Oakland Hospital, Intervening Plaintiff-Appellee,

and Mendelson Orthopedics,

P.C., Intervening Plaintiff, v.

GEICO INDEMNTIY COMPANY, Defendant/Third

Party Plaintiff-Appellant, and

State Farm Mutual Automobile Insurance Company, Defendant,

and EAN Holdings, L.L.C. and Enterprise

Holdings, INC., Defendants/ Third-Party Defendants-Appellees.

Adam Heichel, Plaintiff, and

St. John Macomb-Oaldand Hospital, Intervening Plaintiff-Appellee,



Geico Indemnity Company, Defendant/Third


State Farm Mutual Automobile Insurance Company,

Defendant-Appellant, and

EAN Holdings, Inc. and Enterprise Holdings, Inc., Defendants/Third

Party Defendan ts-Appellees.

Docket Nos. 323818, 324045.

I March 1, 2016.

Wayne Circuit Court; LC No. 12-003780-NF.

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

Opinion

PERCURIAM.

*1 The no-fault insurance act requires owners of motor vehicles registered in Michigan to maintain security for payment of personal injury protection (PIP) benefits. MCL 500.3101(1). This obligation also extends to the owners of vehicles registered in other states that are operated in Michigan for more than 30 days in a calendar year. MCL 500.3102(1).

The Ford Fusion involved in the accident giving rise to this priority dispute was owned by defendant EAN Holdings, L.L.C., and registered in North Carolina. It had been in Michigan for less than 30 days when it struck plaintiff Adam Heichel's motorcycle. Because the no-fault act's security provision does not apply to the vehicle, neither do the no-fault act's priority provisions. As a practical matter, this means that EAN is not

© 2019 Thomson Reuters. No claim to original U.S. Governrnent Works.

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2016 WL 805524

responsible for paying Heichel's first-party 201; 393 NW2d 833 (1986), absolved EAN no-fault benefits. The circuit court reached ofliability for Heichel's no-fault claim. the same conclusion. We affirm.

I

While driving a Ford Fusion rented from Enterprise Rent-A-Car in Pennsylvania, Krzysztof Pietruczynik ran a red light in Orion Township and struck Heichel's motorcycle. Heichel suffered serious injuries. Pietruczynik's wife, Mary Roddy, had signed the Enterprise rental agreement. EAN owned the Ford and registered it in North Carolina. In 2010, Michigan's secretary of state certified EAN as a qualified self-insurer under MCL 500.3101(4).

Defendant Geico Indemnity Company insured a personal vehicle owned by Roddy and Pietruczynik. Roddy had a State Farm policy on another personal vehicle; as to that vehicle, Pietruczynik was a named insured. Thus, there were three potential sources through which Heichel could seek payment of PIP benefits: EAN, Geico and State Farm.

Heichel first tagged EAN, which denied his claim. Heichel then filed suit against Geico, which successfully moved to join State Farm as a party defendant. Meanwhile, St. John Macomb-Oakland Hospital and Mendelson Orthopedics, P.C. intervened, seeking reimbursement for their services. Many motions and procedural moves later, the circuit court granted EAN's motion for summary disposition, ruling that Parks v. Detroit Auto Inter-Ins Exch, 426 Mich. 191,

Geico and State Farm agreed to a judgment by consent in favor of Heichel, St. John Macomb, and Mendelson Orthopedics. The judgment reserved the two insurance companies' rights to claim an appeal of the circuit court's summary dispositi<?n ruling. We have consolidated their appeals. Both contend that EAN is liable for payment of Heichel's no-fault benefits because EAN's self-insured status meant that it assumed the duties of a commercial insurer and thus was highest in priority under MCL 500.3114(5), which governs the order of PIP benefit payment responsibility in motorcycle-motor vehicle accidents.

II

We review de novo a circuit court's resolution of a summary disposition motion. Zaher v. Miotke, 300 Mich.App 132, 139; 832 NW2d 266 (2013). We also review de novo matters of statutory interpretation. Stanton v. City of Battle Creek, 466 Mich. 611, 614; 647 NW2d 508 (2002). The goal of statutory interpretation is to discern and '""' give effect to the intent of the Legislature. Odom v. Wayne Co, 482 Mich. 459, 467; 760 NW2d 217 (2008). The first step in determining legislative intent is the language of the statute. Id. If the statutory language is unambiguous, then the Legislature's intent is clear and judicial construction is neither necessary nor permitted. Id.

© 2019 Thomson Reuters. No claim to original U,S. Government Works, 2

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2016 WL 805524

III

*2 The Supreme Court's opm10n in Parks v. DAIIE, 462 Mich. 191, paves the way to our decision in this case. We readily acknowledge that the facts of Parks differ from those presented here. But Parks 's reasoning is straightforward, and leads inexorably to our conclusion that because EAN is not subject to the security requirements of the no-fault act

' EAN cannot be held liable for Heichel's PIP benefits.

Michigan's no-fault automobile insurance act, MCL 500.3101 et seq., requires that Michigan drivers maintain no-fault automobile insurance. American Home Assurance Co v. Mich. Catastrophic Claims Ass'n, 288 Mich.App 706, 717; 795 NW2d

· 172 (2010). MCL 500.3101(1) provides "[t]he owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under [PIP], property protection insurance, and residual liability insurance." Only vehicles that must be registered in Michigan are subject to the requirements of the no-fault insurance act. Covington v. Interstate Sys, 88 Mich.App 492, 494; 277 NW2d 4 (1979). However, an out-of-state vehicle owner must maintain security for the payment of no-fault benefits if he or she permits a vehicle to be operated in Michigan for "an aggregate of more than 30 days in any calendar year" regardless of whether the vehicle is registered in Michigan. MCL 500.3102(1).

Geico and State Farm insist that these wellestablished rules fall to the wayside when a vehicle owner such as EAN voluntarily files a certificate with the state of Michigan attesting that when responsible for doing so, it will provide "security equivalent to that afforded by a policy of insurance [.]" MCL 500.3101(4). In enacting § 3101(4), the Legislature recognized that some vehicle owners, particularly fleet operators such as EAN or Enterprise, might elect to self-insure rather than to purchase no-fault coverage. See MCL 257.531; Allstate Ins Co v. Elassal, 203 Mich.App 548, 553; 512 NW2d 856 (1994). We agree with Geico and State Farm that under the no-fault act, a self-insurer is an insurer.· Id. at 554. "[S]elf-insurance, as certified by the Secretary of State, is the functional equivalent of a commercial insurance policy, with the purpose of either form being to compensate victims properly." Id . But this concession does not end the analysis.

Despite EAN's status as an insurer, the nofault act simply did not apply to the Ford Fusion. See Parks, 426 Mich. at 206 ("The fact that a vehicle is actually covered by an insurance policy, or that the owner of the vehicle is self-insured, does not alter whether the vehicle itself need or need not conform to the requirements of the act.") (emphasis added). Consequently, declaring that EAN is an insurer under MCL 500.3114 does not dispose of the broader question: whether the priority provisions of M CL 500. 3114( 5) pertain at all.

"Generally, under MCL 500.3101(1) and MCL 500.3114(1), an individual must seek

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3

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2016 WL 805524

no-fault benefits from his own insurer unless one of the exceptions enumerated in MCL 500.3114(2), (3), or (5) applies." Farmers Ins Exch v. Farm Bureau Gen Ins Co of Mich, 272 Mich.App 106, 111; 724 NW2d 485 (2006). One of the exceptions, MCL 500.3114(5), addresses the order of priority for payment of no-fault benefits to the operator of a motorcycle and provi1es:

*3 A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim [PIP] benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.

(b) The insurer of the operator of the motor vehicle involved in the accident.

( c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.

(d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident

If the no-fault act applies to the Ford Fusion that struck Heichel, EAN would be first in the order of priority. Geico would be second.

However, Parks, 426 Mich. at 206, instructs that the priority provisions set forth in § 3114 apply "only in the case in which the insured vehicle is required to be registered in this state." In Parks, as here, the involved

vehicle was registered in a state other than Michigan and Michigan law did not require Michigan registration. Id. at 197, 200-201. This fact was central to the Supreme Court's conclusion in Parks that the vehicle owner could not be held liable for payment of PIP benefits because the involved vehicle "was not required to be registered in Michigan and was not subject to the security provisions of the no-fault act." Id. at 211. The Court explained that "the plain language of § 3101(1) subjects only those vehicles required to be registered in this state to the mandatory security requirements." Id. at 206. The Court held that the plaintiffs personal automobile insurer, rather than the vehicle's insurer, bore liability for payment of PIP benefits because the plaintiff

[was] injured in an employer's out-of-state vehicle, which is not required to be registered in this state under the motor vehicle registration act and .. . is not subject to the security provisions of the no-fault act because it has not been operated in this state for more than thirty days within the calendar year[.] [Id. at207.]

Parks is not precisely on point, as it arose from a workplace injury in an employment context, did not involve a motorcycle, and dealt with a different subsection of MCL 500.3114. These distinctions make no


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Heichel v. Geico lndem. Co., Not Reported in N.W.2d (2016}

2016 WL 805524

difference. In Parks, the vehicle involved in the accident was owned by a self-insured nonresident company, was registered in another state, and was not required to be registered in Michigan. The same is true here. In Parks, another insurer contended that the nonresident vehicle owner was liable under MCL 500.3114, regardless of whether the no-fault act required the owner to maintain security on the vehicle. Again, the same is true here. In Parks, the Supreme Court rejected the complaining insurer's argument, holding that the registration requirement set forth in § 3101(1) is the

key to liability under the no-fault act. A vehicle that does not need to be registered in Michigan cannot trigger the application of the priority provisions set forth in MCL 500.3114. Parks, 426 Mich. at 203-204. This core holding underpins our decision in this case.

*4 We affirm.

All Citations

Not Reported in N.W.2d, 2016 WL 805524

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.


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Heichel v. Geico lndem. Co., 500 Mich. 921 (2016)

888 N.W.2d 84

500 Mich. 921 Supreme Court of Michigan.

Adam HEICHEL, Plaintiff, and

St. John Macomb-Oakland Hospital, Intervening Plaintiff-Appellee,



GEICO INDEMNITY COMP ANY, Defendant/Third


State Farm Mutual Automobile Insurance Company,

Defendant-Appellant, and

End of Document

Ean Holdings, Inc. and Enterprise Holdings, Inc., Defendants/Third

Party Defendants-Appellees.

Docket Nos. 153501, 153502.

I COA Nos. 323818, 324045.

I Dec. 28, 2016.

Order

On order of the Court, the application for leave to appeal the March 1, 2016 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

All Citations

500 Mich. 921, 888 N.W.2d 84 (Mem)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.


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EXHIBIT D

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ST ATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

MUST AF A ALMURISI,

Plaintiff,

V.

A VIS BUDGET CAR RENTAL, LLC,

Defendant.

Case No. 18-004875-NF Hon.AnnetteJ.Berry

I ---------------------------------PA TRICIA WORRALL (P62984) Anthony, Paulovich & Worrall Attorney for Plaintiff 835 Mason Street, Suite C220 Dearborn, MI 48124 3 l 3-406-9722/888-343- l 676 fax [email protected]

JEREMY M. MULLETT (P63 l 00) CHAD M. DUSCHINSKY (P81872) Zausmer, August & Caldwell, P.C. Attorney for Defendant 32255 Northwestern Hwy., Ste. 225 Farmington Hills, MI 48334 (248) 851-4111 Fax: (248) 851-0100 j [email protected] [email protected]

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY DISPOSITION

At a session of said Court held in the City of Detroit, County of Wayne, State of Michigan

on: 1/17/2019 PRESENT: JUDGE ANNETTE J. BERRY

HON.ANNETTEJ.BERRY

This matter having come before the Court on Defendant's Motion, oral argument having been

heard, and the Court being fully advised in the premises;

IT IS HEREBY ORDERED that Defendant's Motion for Summary Disposition is GRANTED

for the reasons stated on the record.

IT IS FURTHER ORDERED that this matter be dismissed with prejudice.

This is a final Order and closes the case.

IT IS SO ORDERED.

/s/ Annette J. Berry

HON.ANNETTEJ.BERRY

{02103970}

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0 E 0 C) rJ)

cu :O STATE OF MICHIGAN >, .... ~ IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE .)

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Plaintiff,

-v- Case No. 18-004875-NF HON.ANNETTEJ.BERRY

AVIS BUDGET CAR RENTAL, LLC

Defendant,

ORDER

At a session of said Court held in the Coleman A. Young Municipal Center, Detroit, Wayne

County, Michigan on this: 4/15/2019

Annette J. Berry

Plaintiff, MUSTAFA ALMURISI (hereafter "Plaintiff'), having filed a Motion for

Reconsideration pursuant to MCR 2.119(F), and the Court being fully advised in the

premises states as follows:

Because Plaintiff has merely presented the same issues already ruled on by the

Court, either expressly or by reasonable implication, the motion will not be granted.

MCR 2.119(F) (3); Sargent v AM Eckhouse, DO, PC, 171 Mich App 703, 706; 430

NW2d 763 (1988). Plaintiff has also failed to demonstrate a palpable error by which

the Court and the parties have been misled, and has failed to show that a different

result would necessarily result from correction of the alleged mistake. MCR 2.119(F)(3);

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Brown v Libbey-Owens-Ford Co, 166 Mich App 213,216; 420 NW2d 106 (1987).

Accordingly, the Court in its discretion will deny the motion. Charbeneau v

Wayne County General Hospital, 158 Mich App 730, 733; 405 NW2d 151 (1987).

Therefore, IT IS ORDERED that Plaintiffs Motion for Reconsideration is hereby

DENIED.


Circuit Judge

2

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EXHIBIT E

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)'.'.'..

:>

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

ERIC WALTON,

Plaintiff, HON. CRAIG S. STRONG CASE NO. 18-009945-NI

C') V

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NORTHLAND RADIOLOGY INC., and AMERICAN PHYSIO, LLC

Intervening Plaintiffs,

V

JASMINES. DICKERSON and PV HOLDING CORPORATION d/b/a AVIS BUDGET GROUP, LLC, a foreign corporation,

Defendants.

---------------------------·' ELIA & PONTO, PLLC ADAM P. PONTO (P74332) ALEXANDER V. BROWN (P79951) Attorneys for Plaintiff 25800 Northwestern Hwy., Ste 850 Southfield, Ml 48076 (248) 595-8579; 595-8729 Fax [email protected]

KHURANA LAW FIRM ANDREW KHURANA (P66363) TIMOTHY M. HARTNER (P66237) Attorney for IP, NORTHLAND 1700 W. Big Beaver Rd., Ste 350 Troy, Ml 48084 (248) 731-7846 [email protected]

WARD, ANDERSON, PORRITT, BRYANT, LORD & ZACHARY NICOLETTE S. ZACHARY (P49522) Attorney for Defendant, PV HOLDING 4190 Telegraph Rd., Ste 2300 Bloomfield Hills, Ml 48302 (248) 593-1440; 593-7920 Fax [email protected]

HAAS & GOLDSTEIN, PC JENIFER MEAS EL (P74711) Attorney for IP, AMERICAN PHYSIO 31275 Northwestern Hwy., Ste. 225 Farmington Hills, Ml 48334 (248) 702-6550; 538-9044 Fax [email protected]

___________________________ / ORDER GRANTING DEFENDANT PV HOLDING CORPORATION d/b/a AVIS

BUDGET GROUP, LLC'S MOTION FOR SUMMARY DISPOSITION

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At a session of said Court, held in the City of Detroit, County of Wayne, and State of Michigan, on: 3/6/2019

JUDGE CRAIG S. STRONG PRESENT:HONORABLE

CIRCUIT COURT JUDGE

This matter having come before the Court on March 5, 2019, pursuant to

Defendants' Motions for Summary Disposition of Plaintiff and Intervening Plaintiff's

Claims Pursuant to MCR 2.116(C)(10), oral arguments having been heard, and the

Court being otherwise fully advised of the premises;

IT 15 HEREBY ORDERED that Defendant PV Holding Corporation d/b/a Avis

Budget Group, LLC's Motions for Summary Disposition are GRANTED.

IT 15 FURTHER ORDERED that Plaintiff, Intervening Plaintiff, Northland

Radiology, Inc., and Intervening Plaintiff American Physic, LLC's, PIP and uninsured

motorist claims against Defendant PV Holding Corporation d/b/a Avis Budget Group,

LLC are DISMISSED WITH PREJUDICE.

THIS 15 NOT A FINAL ORDER.

/s/ Craig Strong

CIRCUIT COURT JUDGE

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EXHIBIT F

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STATE OF MICHIGAN


ERIC WAL TON,

-v-

Plaintiff Case No. 18-009945-NI Hon. Craig S. Strong

JASMINE S DICKERSON and PV HOLDING CORP, d/b/a A VIS BUDGET GROUP, LLC,

Defendant _____________________ /

OPINION AND ORDER

At a session of said Court, Held in the City of Detroit,

County of Wayne, State of Michigan

on: 4/2/2019 PRESENT: Hon Craig S. Strong, Circuit Court Judge

This matter comes before the Court on Plaintiff's motion for reconsideration. For the following

reason, the motion is denied.

Plaintiff brought this no-fault claim after being involved in an auto accident on January 1, 2018. At the time of the accident Plaintiff occupied a 2017 Ford Edge, which had been rented from an Avis Rent-A-Car location at or near Detroit Metropolitan Airport. The Defendant is the corporate entity that owned the vehicle at the time.

Defendant challenged the claim in a summary disposition motion, noting first that the owner of a vehicle will not be responsible for the no-fault benefits of an injured occupant if the vehicle is neither registered in this state nor operated in this state for more than 30 days in a calendar year. MCL 500.3101(1); MCL 500.3102(1). Defendant then provided evidence indicating that the 2017 Ford Edge arrived at the Metro Airport Avis location on December 26, 2017, after being rented from an Avis location in Illinois earlier in the day. Defendant also provided records documenting the rental history of the vehicle, which showed that it had never been rented in this state prior to late December 2017. Thus, Defendant argued, the evidence was insufficient to establish that the vehicle was subject to the no-fault act, rendering summary disposition appropriate .

, Plaintiff opposed this motion first by analogizing these facts to those in Pioneer State Mutual Ins Co v Titan Ins Co, 252 Mich App 330 (2002), where the defendant issued insurance

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policies for a certain vehicle owner, but the policies covered only some of his vehicles. The policyholder nevertheless continued to operate his uninsured vehicles, and the plaintiff's insured was then injured when he did so. In subsequent litigation, the defendant argued that it could not be responsible for the claim because it did not insure the vehicle at issue. The Court of Appeals, however, rejected this argument, finding the lack of insurance on the vehicle to be irrelevant. Rather, what mattered was whether the defendant was an "insurer" of an "owner or registrant" of the motor vehicle involved in the accident. MCL 500.3115(1 ). And the defendant was such an "insurer," because it "insured" the person who owned the van, even though the policies covered other vehicles.

In response, Defendant correctly noted the vehicle at issue in Pioneer State was required to be registered and insured in this state and, therefore, there was no claim that its owner was immune from the requirements of the no-fault act. Rather, the dispute involved priority, i.e., determining which insurer was responsible for the plaintiff's no-fault benefits. Defendant also correctly cited Parks v DAIIE, 462 Mich 191 (2000), for the proposition the priority provisions of the no-fault act cannot be triggered by a vehicle that was not required to be registered in the State of Michigan in the first place. Based on this reasoning, the Court rejected Plaintiff's argument under Pioneer State.

Plaintiff also opposed Defendant's motion on grounds that the evidence did not compel a finding that the vehicle had not been operated in Michigan for more than 30 days. Plaintiff did not, however, support this argument with evidence demonstrating when and where the vehicle had been operated in Michigan, nor did Plaintiff otherwise cite any evidence to dispute the rental records proffered by Defendant. Rather, Plaintiff simply noted that Defendant may have brought the vehicle to this state for other purposes, such as storage or repairs, and the rental records did not rule this out. The Court rejected this argument on grounds that it constituted no more than speculation and conjecture and, therefore, was not sufficient to demonstrate the existence of a material factual dispute. The Court then granted summary disposition to Defendant, finding that it could not be liable for Plaintiff's no-fault benefits.

Plaintiff now seeks reconsideration. In support, Plaintiff notes that Defendant is qualified as a self-insurer in the State of Michigan, and that its certificate of self-insurance "covers all vehicles owned or registered by the named self-insurer." According to Plaintiff, these facts compel a finding that the 2017 Ford Edge "was covered under a policy of Michigan no-fault insurance through [Defendant]." This is significant because the no-fault act requires a person suffering accidental bodily injury while an occupant of a motor vehicle to claim personal protection insurance benefits from the insurer of the owner or registrant of the vehicle occupied. MCL 500.3114(4).

As discussed in the Court's previous ruling, this argument would have merit if the vehicle in question was subject to the requirements of the Michigan no-fault act, and if there was a dispute over priority for coverage of Plaintiff's no-fault benefits. But to be subject to the requirements of the no-fault act the vehicle in question must be registered in this state or operated here for more than 30 days in a calendar year, and Plaintiff is unable to establish even a question of fact as to whether that can be said of the 2017 Ford Edge. Thus, it simply does not matter whether this vehicle was or was not covered by insurance. Rather, what matters is whether the vehicle was subject to the no-fault act. See Parks, supra at 206 ("the fact that a vehicle is actually covered by an insurance policy, or that the owner of the vehicle is selfinsured, does not alter whether the vehicle itself need or need not conform to the requirements of the act"). As Plaintiff has failed to demonstrate that this vehicle was required to conform to the

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requirements of the no-fault act, Plaintiff has likewise failed to establish that she can recover in this case. If so, reconsideration on this basis is not appropriate.

Plaintiff's motion is denied.

___ .Ls/_.C:ca.ig..S.tcoJJg. ______________________ _

HON. CRAIG STRONG

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EXHIBIT G

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STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

TERRY HARRIS and DENISE SHIREE JENKINS-HENDERSON,

Plaintiffs,

and

NORTHLAND RADIOLOGY, INC., as Assignee of Terry Harris and DENISE HENDERSON, and ASSOCIATED SURGICAL CENTER OF DEARBORN, LCC,

Intervening Plaintiffs,

vs.

ALLSTATE INSURANCE COMPANY, AVIS BUDGET CAR RENTAL, LLC and CAITLIN ANNAMAY TAYLOR,

Defendants.

Case No. 18-004125-NF HON. Daniel A. Hathaway

___________________________ ___,:/

Todd P. Rutledge (P63052) Rutledge Tinaj, PLLC Attorney for Plaintiffs 26400 Lahser Road, Ste. 125 Southfield, Ml 48033 (248) 469-0037 (248) 469-0288 Fax

Marcy A. Tayler (P41685) Philip K. McNelis (P38203) Kitch Drutchas Wagner Valitutti & Sherbrook Attorneys for Def Taylor 1 Woodward Avenue, Ste. 2400 Detroit, Ml 48226 (313) 965-2863 (313) 965-7403 Fax

1

Michael D. Phillips (P73280) Anselmi Mierzejewski Ruth & Sowle, PC Attorney for Def Allstate 1750 S. Telegraph Road, Ste. 306 Bloomfield Hills, Ml 48302 (248) 338-2290 (248) 338-4451 Fax

William J. Lynch (P24977) Plunkett Cooney Attorney for Def Avis 150 W. Jefferson Ave., Ste. 800 Detroit, Ml 48226 (313) 983-4753 (313) 983-4350 Fax

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Laurie Goldstein (P66011) Haas & Goldstein, PC Attorney for IP Northland Radiology 31275 Northwestern Hwy., Ste. 225 Farmington Hills, Ml 48334 (248) 702-6550 (248) 538-9044 Fax

Andrew Khurana (P66363) Timothy Hartner (P66237) Khurana Law Firm Attorneys for IP Associated Surgical as to Plaintiff Denise Henderson 1700 W. Big Beaver Rd., Ste. 350 Troy, Ml 48084 (248) 731-7846 (248) 592-7374 Fax

James R. Waldvogel (P46737) Waldvogel Law Firm, PLLC Attorney for IP Associated Surgical as to Plaintiff Terry Harris P.O. Box 160 Royal Oak, Ml 48068-0160 (248) 246-1501

-----------------------------'

INTERVENING PLAINTIFF, NORTHLAND RADIOLOGY, MOTION'S FOR PARTIAL SUMMARY DISPOSITION AGAINST DEFENDANT AVIS BUDGET CAR RENTAL

REGARDING ORDER OF PRIORITY

NOW COMES Intervening Plaintiff, Northland Radiology, by and through its

attorneys, HAAS & GOLDSTEIN, P.C., and for its Motion for Partial Summary Disposition

Against Defendant Avis Budget Car Rental Regarding Order of Priority, hereby states as

follows:

1. This is a first party lawsuit for overdue PIP benefits stemming from medical

services provided to Plaintiffs, Terry Harris and Denise Henderson, for injuries they

sustained in an April 16, 2017 motor vehicle accident.

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2. Specifically, Plaintiff Terry Harris was a passenger in a 2017 Ford Fusion Avis

Budget Car Rental vehicle that was struck by a driver that disregarded a yield sign as

Plaintiff Denise Henderson drove through the intersection.

3. Ms. Henderson and Mr. Harris' claims were assigned to Defendant Allstate through

the Michigan Assigned Claims Plan as neither was covered by a personal insurance

policy on the day of the accident.

4. The 2017 Ford Fusion was registered in the State of New York and owned by P.V.

Holding Corp., Defendant Avis Budget Car Rental's insurer. (Exhibit A-Affidavit of

Sandra Estep, Director of Liability Claim for Avis Budget Rental, LLC at114-8). P.V.

Holding Corp. also had a Certificate of Self-Insurance Authority (COSI), pursuant to MCL

500.3101d, which allowed it to operate as an automobile self-insured entity in the State

of Michigan. (Exhibit B-Michigan Department of Insurance and Financial Services

Qualified Self-Insurer List).

5. The rental contract for the 2017 Ford Fusion was less than 30 days. (Exhibit C

Rental Contract).

6. In Fullerv. GEICO lndem. Co., 309 Mich. App. 495, 501-02, 872 N.W.2d 504, 508-

09 (2015), the Michigan Court of Appeals held that car rental companies must insure

rental vehicles in accordance with MCL 500.3101 (1) if the rental contract for the vehicle

is less than thirty (30) days in duration.

7. Importantly, in a recent published Michigan Court of Appeals opinion, the Court

held that car rental companies, such as Defendant Avis Budget Car Rental, who maintain

a COSI pursuant to MCL 500.3101d, are insurers within the meaning of MCL 500.3114

and must pay PIP benefits when they are highest in priority to pay benefits. (Exhibit D-

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Turner by Sakowski v. Farmers Insurance Exchange, Court of Appeals of Michigan,

April 16, 2019 __ N.W.2d __ 2019 WL 1648159).

8. MCL 500.3114(4)(a) provides:

[A] person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) The insurer of the owner or registrant of the vehicle occupied.

9. MCL 500.3114(5)(a) provides:

A person suffering accidental bodily injury arising from a motor vehicle accident that shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) The insurer of the owner or registrant of the motor vehicle involved in the accident.

10. Mr. Harris and Ms. Henderson were uninsured when they were injured in the 2017

Ford Fusion owned and insured by P.V. Holding Corp., Defendant Avis Budget Car

Rental's insurer. Therefore, Defendant Avis Budget Car Rental is highest in priority to pay

PIP benefits on their behalf pursuant to MCL 500.3114.

WHEREFORE, Intervening Plaintiff requests an order deeming Defendant Avis

Budget Car Rental highest in priority to pay PIP benefits on Plaintiffs' behalf pursuant to

MCL 500.3114.

BRIEF IN SUPPORT

I. INTRODUCTION

It is well settled that priority is not a defense to nonpayment of benefits.

Nonetheless, Defendant Avis Budget Car Rental, a certified self-insurer in the State of

Michigan, failed to even adjust Plaintiffs' claim arguing that it was not in the order of

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priority because the vehicle in question was registered in the State of New York, and

further stated that it was not required to maintain No-Fault insurance on the 2017 Ford

Fusion because the vehicle had not been in the State of Michigan for thirty (30) days at

the time of the accident.

However, in a recent published Michigan Court of Appeals opinion addressing this

very issue, the Court made clear that the owner of an out of state vehicle who has a

Certificate of Self-Insurance Authority pursuant to MCL 500.3101d, is an insurer within

the meaning of MCL 500.3114 and must pay benefits when it is highest in order of priority.

(Exhibit D-Turner by Sakowski v. Farmers Insurance Exchange, Court of Appeals

of Michigan, April 16, 2019 N.W.2d __ 2019 WL 1648159).

Accordingly, Defendant Avis Budget Car Rental is highest in priority to pay PIP

benefits on Plaintiffs' behalf pursuant to MCL 500.3114.

11. STANDARD OF REVIEW

Summary disposition is proper where "except as to the amount of damages, there

is no genuine issue as to any material fact." MCR 2.116(C)(10). "Under MCR

2.116(C)(10), the motion tests the factual support for a claim and must be supported by

affidavits, depositions, admissions, or other documentary evidence." Maiden v.

Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). "A court properly grants the

motion when the proffered evidence, viewed in the light most favorable to the nonmoving

party, fails to establish any genuine issue of material fact and the moving party is entitled

to judgment as a matter of law." West v. Gen. Motors Corp., 469 Mich. 177, 183; 665

N.W.2d 468 (2003).

Ill. LAW AND ARGUMENT

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In Turner by Sakowski v. Farmers Insurance Exchange, Court of Appeals of

Michigan, April 16, 2019 N.W.2d __ 2019 WL 1648159(attached as Exhibit D),

a recent published Michigan Court of Appeals opinion, the Court made clear that the

owner of an out of state vehicle who has a Certificate of Self-Insurance Authority pursuant

to MCL 500.3101d is an insurer within the meaning of MCL 500.3114 and must pay

benefits when it is highest in order of priority.

In Turner, the plaintiff was injured in a motor vehicle accident while riding as a

passenger in a car rented from Enterprise Leasing Corporation of Detroit, LLC. The car

was registered in Maryland and owned by EAN Holdings, LLC, who had obtained a

certificate of self-insurance that permitted it to operate as a Michigan automobile self

insured entity pursuant to MCL 500.3101d. Following the accident, Enterprise denied a

request to pay personal protection insurance (PIP) benefits. The plaintiff made a claim for

benefits through the Michigan Assigned Claims Plan and his claim was assigned to

Farmers Insurance Exchange. The plaintiff subsequently filed a lawsuit seeking payment

of outstanding PIP benefits.

Enterprise moved for summary disposition arguing that the vehicle in question was

not required to register in the State of Michigan and that it did not have to maintain the

security for payment of PIP benefits that is otherwise required by MCL 500.3101(1).

Enterprise further argued that, as a nonresident corporation, it was not required to

maintain security on the car under MCL 500.3102(1) because the car was not registered

in the State of Michigan and had not been operated in Michigan for more than 30 days

within the relevant calendar year. The trial court granted Enterprise's Motion and Farmers

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appealed. The trial court's order was reversed on appeal. Specifically, the Court held as

follows:

The plain language of MCL 500.3114(4)(a) refers to the "insurer of the owner or registrant" and must therefore mean the entity providing no-fault insurance for the owner or registrant. There was evidence in the records below that Enterprise had formalized its status as a self-insurer under the Michigan no-fault act by obtaining the certificate of selfinsurance described in MCL 500.3101d. Enterprise manifested its intent to comply with the requirements of the Michigan no-fault act's security mandate by using its own means to provide "security equivalent to that afforded by a policy of insurance," thus functioning as its own insurer. MCL 500.3101(4). In light of the specific language of MCL 500.3114(4)(a) and the function of a self-insurer, we conclude that it is permissible in this context to include a self-insured entity such as Enterprise within the meaning of the term "insurer" as used in MCL 500.3114(4)(a). MCL 500.3101(4); MCL 500.3101 d(1) and (2); see also Allstate Ins Co v Elassal, 203 Mich App 548, 554; 512 NW2d 856 (1994) (stating that the "no-fault act explicitly treats a self-insurer as an insurer, with 'all the obligations and rights of an insurer' " and further noting that "self-insurance, as certified by the Secretary of State, is the functional equivalent of a commercial insurance policy, with the purpose of either form being to compensate victims properly"), quoting MCL 500.3101 (4).

* * *

We hold that in the case of a qualified self-insurer under Michigan's no-fault act, the priority provision in MCL 500.3114(4)(a) refers to that self-insurer as the insurer of the motor vehicle's "owner or registrant," regardless of whether the particular vehicle involved in an accident was required to be covered by no-fault security under MCL 500.3101(1) or MCL 500.3102(1). Accordingly, in both Docket No. 339624 and Docket No. 339815, we reverse because Enterprise was higher in priority pursuant to MCL 500.3114(4)(a) and Farmers was entitled to summary disposition in its favor. We remand in both cases for further proceedings consistent with this opinion.

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Ms. Henderson and Mr. Harris were injured while riding in the 2017 Ford Fusion

owned and insured by P.V. Holding Corp., Defendant Avis Budget Car Rental's insurer,

who maintained a COSI pursuant to MCL 500.3101d. Therefore, Defendant Avis Budget

Car Rental is highest in priority to pay PIP benefits on Plaintiffs' behalf pursuant to MCL

500.3114.

WHEREFORE, Intervening Plaintiff requests an order deeming Defendant Avis

Budget Car Rental highest in priority to pay PIP benefits on Plaintiffs' behalf pursuant to

MCL 500.3114.

Dated: April 29, 2019


Isl Laurie Goldstein Laurie Goldstein (P66011) Attorney for Intervening Plaintiff 31275 Northwestern Hwy, Ste. 225 Farmington Hills, Ml 48334 (248) 702-6550

·r'"' Of cERV\CE . s CEFITIFICA c. 1 regoing instrumen\ wa

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STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

ERIC WALTON,

Plaintiff, HON. CRAIG S. STRONG CASE NO. 18-009945-NI

NORTHLAND RADIOLOGY INC., and AMERICAN PHYSIO, LLC as Assignees of Eric Walton,


V

JASMINE S. DICKERSON and PV HOLDING CORPORATION d/b/a AVIS BUDGET GROUP, LLC, a foreign corporation,

Defendants. ELIA & PONTO, PLLC ADAM P. PONTO (P74332) ALEXANDER V. BROWN (P79951) Attorneys for Plaintiff 25800 Northwestern Hwy., Ste 850 Southfield, MI 48076 (248) 595-8579; 595-8729 Fax [email protected]

ANDREW KHURANA (P66363) TIMOTHY M. HARTNER (P66237) KHURANA LAW FIRM Attorney for Northland Radiology 1700 W. Big Beaver Rd., Ste. 350 Troy, MI 48084 (248) 731-7846 T [email protected]

JENNIFER MEASEL (P7471 l) HAAS & GOLDSTEIN, PC Attorney for American Physio 31275 Northwestern Hwy, Suite 225 Farmington Hills, MI 48334 (248) 702-6550 / (248) 538-9044 (fax) [email protected]

WARD, ANDERSON, PORRITT, BRYANT, LORD & ZACHARY DAVID S. ANDERSON (P312 l 3) NICOLETTE S. ZACHARY (P49522) Attorney for Defendant, PV HOLDING 4190 Telegraph Rd., Ste 2300 Bloomfield Hills, MI 48302 (248) 593-1440/ (248) 593-7920 (Fax) [email protected]

SUPPLEMENTAL AUTHORITY TO INTERVENING PLAINTIFF NORTHLAND RADIOLOGY, INC.'S MARCH 212 2019 MOTION FOR RECONSIDERATION

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NOW COMES Intervening Plaintiff, Northland Radiology, Inc. by and through its

attorneys, Khurana Law Firm, P.C., and based on recent supplemental authority supporting its

Motion for Reconsideration states as follows:

On March 21, 2019, Intervening Plaintiff Northland Radiology timely filed a motion for

reconsideration of this Honorable Court's ruling granting Defendant PV Holding Corporation's

motion for summary disposition. April 2, 2019, this Honorable Court issued an opinion and order

denying only Plaintiff's motion for reconsideration. Exhibit 1.

Subsequent to the issuance of the order denying Plaintiff's motion for reconsideration,

but not denying Intervening Plaintiff Northland Radiology's motion for reconsideration, the

Michigan Court of Appeals issued a published opinion and order endorsing the arguments made

by Intervening Plaintiff Northland Radiology in response to Defendant PV Holding

Corporation's motion for summary disposition and in its motion for reconsideration of the order

granting said motion for summary disposition.

Where a self-insurer is the owner and registrant of a motor vehicle involved in a collision,

it is liable for PIP benefits regardless of whether the vehicle involved was required to have

Michigan No-Fault insurance. In Turner, et a., v Farmers Ins Exch, et a/1, the Court of Appeals

held that the rental car company was liable to the injured party pursuant to MCL 500.3 l 14(4)(a)

because it owned and registered the vehicle involved in the collision, there was no applicable

insurer under MCL 500.3114(1), and it was certified in Michigan as a self-insurer._ Mich

App_;_ NW2d _; Dkt Nos. 339624 and 339815, 2019 WL 1648159 at 11, slip opinion at

15 (April 16, 2019) ("We hold that in the case ofa qualified self-insurer under Michigan's no

fault act, the priority provision in MCL 500.3114( 4)(a) refers to that self-insurer as the insurer of

1 The Court of Appeals consolidated two matters for the purposes of appeal.

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the motor vehicle's 'owner or registrant,' regardless of whether the particular vehicle involved in

an accident was required to be covered by no-fault security under MCL 500.3101(1) or MCL

500.3102(1).") Exhibit 2, Turner Opinion and Order (slip opinion).

Based on this binding authority from the Court of Appeals, there can be no question that

the Order granting Defendant's motion for summary disposition should be reconsidered and

Defendant's motion for summary disposition should be denied.

Dated: April 18, 2019


KHURANA LAW FIRM, PC Isl Timothy M Hartner TIMOTHY M. HARTNER (P66237) Attorneys for Plaintiff 1700 W. Big Beaver Rd., Ste. 350 Troy, MI 48084 (248) 731-7846 [email protected]

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing document was served upon all parties to the above cause of action at their respective addresses as they appear above on April 18, 2019 by:

U.S. Mail _lL E-Mail

Mail __ Hand Delivery

Fax __ Overnight

E-File

I declare under penalty of perjury that the statement above is true to the best of my knowledge, information, and belief.

Isl Francisco Lozano FRANCISCO LOZANO

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EXHIBIT I

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STATE OF MICHIGAN


MAEGAN TURNER, by WALTER SAKOWSKI, Conservator

Plaintiff,

Vs.

FARMERS INSURANCE EXCHANGE. ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, GARY DUANE RUPP, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JASON PUCKE1T, PATSY VILLNEFF, TAMERA HARPER ANDEAN HOLDINGS, LLC.

Defendants. And

RIVERVIEW MACOMB HOME & ATI'ENDANT CARE, Ll.C,


Vs.

GARY DUANE RUPP, as Personal Representative for the Estate of Jason Puckett,

Cross Plaintiff,

Vs.

FARMERS INSURANCE EXCHANGE, ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, GARV DUANE RUPP, PATSYVILLNEFF, TAMERA HARPER and EAN HOLDINGS, LLC,

Defendants/Cross Defendants.

16-002031-NF Case No.16-002031-NF Hon. Annette Berry

224-4679

Affidavit

FILED IN MY OFFICE WAYNE COUNTY CLERK

2/17/201712:18:58 PM CATHY M. GARRETT

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DODD B. FISHER (P51382) Whiting Law Attorney For Plaintiff 26300 Northwestern Hwy., Ste. 301 Southfield, Ml 48076 Phone: (248) 355-5900 Fax: (248) 355-5901 Email: [email protected]

Robert D. Steffes (P63198) Benjamin S. Manson (P66187) HEWSON & VAN HELLBMONT, PC Attorney for Defendant Farmers 25900 Greenfield Road, Suite 650 Oak Park, Ml 48237 (248) 968-5200 [email protected]

STEPHEN M. WITTBRODT (P76160) The Michigan Law Firm, PLLC Attorney For Intervening Plaintiff 717 S. Eton Street Birmingham, Ml 48009 Phone: (844) 464-3476 Fax: (248) 480-0960 Email: [email protected]

MARY CATHERINE RENTZ (P33011) Plunkett Cooney Attorney For Defendants Enterprise/EAN 150 W. Jefferson, Ste. 800 Detroit, Ml 48226 Phone: (313) 983-4856 Fax: (248) 901-4040 E-mail: [email protected]

MELISSA A. COX (P71976) JAMES PELLAND (P51237) DANIEL J. WILLIAMS (P72085) Fausone Bohn, LLP Attorneys For Defendant Gary Duane Rupp 41700 W. Six Mile Road, Ste. 101 Northville, Ml 48168 Phone: (248) 380-9976 Fax: (248) 380-3434 Email: [email protected]

BRIAN D. WRIGHT (P36862) Julie A. Taylor & Associates Attorney For Defendant/Cross Defendant Patsy Vlllneff 20750 Civic Center Dr., Ste. 400 Southfield, Ml 48076 Phone: (248) 945-3822 Fax: (855) 847-1378 Email: bria n,[email protected]

SIGNED AND CORRECTED AFFll)AVIT OF KRISTEN ZUB

KRISTEN ZUB, being first duly sworn deposes and states as follows:

1.

Detroit, LLC,

2.

I am a Risk Management Supervisor for Enterprise Leasing Company of

I am making this Affidavit based on personal knowledge of this matter.

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3. I have had an opportunity to review the unit history for the vehicle rented to

Yvetrla Harper.

4. The vehlde rented to Yvetria Harper was registered In the State of Maryland.

S. Based upon my review of the unit history, the vehicle rented to Yvetrla

Harper was operated In the State of Michigan from March 23, 2015 through April 12, 2015

only.

6. The first and only time the vehicle was ever operated in Michigan was

beginning March 18, 2015 through the accident date.

7. On March 18, 2015, the vehicle was rented to Terrance Dorty In Shenandoah,

VA: Mr. Dorty had the vehicle through March 23, 2015 at which time he returned It to

Enterprise In Michigan.

8. As the vehicle had only been operated In the State of Michigan from

March 18, 2015 through April 12, 2015, It had not been operated In the State of Michigan

for an aggregate of more than 30 days tn any calendar year.

9.

affidavit

If sworn as a witness, I can testify competently to the racts stated in this

Subscribed and sworn to before me this...!.:!.. day of f.c,,,::, • 2017.

~ , Nota~ Public E2! .t/ .. ../ Cou nty

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STATE OF MICHIGAN



Plaintiff,

-v-

FARMERS INSURANCE EXCHANGE, ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, GARY DUANE RUPP, as Personal Representative for the Estate of Jason Puckett, PATSY VILLNEFF, TAMERA HARPER, and EAN HOLDINGS, LLC,

Defendants,

and



-v-


Cross Plaintiff,

-v-

FARMERS INSURANCE EXCHANGE, ENTERPRISE LEASING CORPORATION OF DETROIT,

Case No. 16-002031-NF

Hon. Annette J. Berry 16_002031 _NF


51512017 4:14:21 PM CATHY M. GARRETT

Isl Cheryl Bascomb

LLC, GARY DUANE RUPP, PATSY VILLNEFF, TAMERA HARPER and EAN HOLDINGS, LLC,


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OPINION

This civil matter is before the Court on a motion for summary disposition filed by

Defendant, Enterprise Leasing Company of Detroit, LLC (Enterprise) and a response and cross

motion for summary disposition filed by Farmers Insurance Exchange (Farmers). For the reasons

stated below, the Court will grant Enterprise's motion and will deny Farmers' motion.

I. BACKGROUND

Plaintiff, Meagan Turner, was critically injured on April 11, 2015 in a motor vehicle

accident while riding as a passenger in a rental vehicle titled to EAN Holdings, LLC, (EAN).

EAN does business as Enterprise Rent-a-Car. The vehicle was registered in Maryland. According

to Enterprise's rental history, the vehicle had only been operated in the State of Michigan since

March 18, 2015, 23 days before the accident. [Enterprise's Brief, Affidavit of Kristen Zub].

Plaintiff Turner was not insured under a no-fault policy of her own and did not reside

with a relative that was insured under a policy. She sought personal injury protection (PIP)

coverage through EAN Holdings, LLC, which denied the claim. EAN informed Plaintiff that it

was not subject to the Michigan No-Fault laws. Plaintiff then sought coverage through the

assigned claims plan and the claim was assigned to Farmers. Farmers provided no-fault coverage

when it ultimately reached a settlement with Plaintiff. Under MCL 500.3172, 1 Farmers now

seeks reimbursement for the benefits it provided to Plaintiff in the settlement and for "loss

adjustment expenses" from Enterprise/EAN. [Farmer's Response to Enterprise's Motion, p 2].

MCL 500.3 l 72(t) provides in relevant part:

After hearing the action, the circuit court shall determine the insurer or insurers, if any, obligated to provide the applicable personal protection insurance benefits and the equitable distribution, if any, among the insurers obligated, and shall order reimbursement to the Michigan automobile insurance placement facility from the insurer or insurers to the extent of the responsibility as determined by the court ....

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II. STANDARDS FOR DETERMINING MOTIONS FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116{C){8) AND MCR 2.116(C){10)

Enterprise and Farmers both base their motions on MCR 2.116(C)(8) and MCR

2.116(C)(10). MCR 2.116(C)(8) provides for summary disposition where "[t]he opposing party

has failed to state a claim on which relief can be granted." A motion for summary disposition

under (C)(8) tests the legal sufficiency of the complaint. Beaudrie v Henderson, 465 Mich 124,

129; 631 NW2d 308 (2001). The trial court may consider only the pleadings in rendering its

decision. Id. All factual allegations in the pleadings must be accepted as true. Dolan v

Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563 NW2d 23 (1997). "The

motion should be granted if no factual development could possibly justify recovery." Beaudrie,

supra at 130.

In reviewing a motion under MCR 2.116(C)(l 0), a court must consider the pleadings,

admissions, affidavits, and other relevant documentary evidence submitted in the light most

favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d

342 (2004). If no genuine issue of material fact is established, the moving party is entitled to

judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).

"A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt

to the opposing party, leaves open an issue upon which reasonable minds might differ." West v

General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

The moving party has the initial burden of supporting its position through documentary

evidence. Quinto v Cross and Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The

burden then shifts to the opposing party to establish the existence of a genuine issue of material

fact. Id. The non-moving party" ... may not rest on the mere allegations or denials of his or her

pleadings, but must, by affidavit or otherwise provided in this rule, set forth specific facts

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showing that there is a genuine issue for trial." MCR 2.116 (G)( 4). If the opposing party fails to

do so, the motion for summary disposition is properly granted. Id.; Quinto, supra at 363.

Finally, a "reviewing court may not employ a standard citing the mere possibility that the claim

might be supported by evidence produced at trial. A mere promise is insufficient under our court

rules." Maiden, supra at 121.

III. ANALYSIS

Enterprise argues that it has no liability for the provision of benefits because the vehicle

had not been operated in Michigan for more than 30 days. Conversely, Farmers claims that,

regardless of the length of time that vehicle was operated in Michigan, Enterprise must provide

coverage.

Under MCL 500.3114(4), "a person suffering accidental bodily injury arising from a

motor vehicle accident while an occupant of a motor vehicle shall claim personal protection

insurance benefits from insurers in the following order of priority:" first from "(a) The insurer of

the owner or registrant of the vehicle occupied;" then from "(b) The insurer of the operator of the

vehicle occupied."

In support of its contention, Enterprise relies on Parks v DAIIE, 426 Mich 191; 393

NW2d 833 (1986). In Parks, an employee who was injured while unloading his employer's

trailer brought an action against the employer, who was self-insured, the no-fault insurance

carrier of the employee's personal automobile, and against the assigned claims facility. The

vehicle was not required to be registered in Michigan. The employee also had his own personal

automobile coverage unlike the instant case in which Plaintiff had no such coverage and sought

coverage first from Enterprise and then from Farmers through the assigned claims facility.

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The Parks court held that the employer's status as a self-insurer did "not place it in the

category of '[a]n insurer authorized to transact automobile liability insurance and personal and

property protection insurance in this state .... "' under MCL 500.3163(1 ). Id at 208. The Parks

court specifically distinguished MCL 500.3101 ( 4) in which "by contrast, self-insurers are

addressed ... with language stating that the required security 'may be provided by any other

method approved by the secretary of state as affording security equivalent"' to an insurance

policy. Id at 208-209. In other words, if the Secretary of State approves, an entity may be self

insured and the security is equal to that provided by a typical insurance policy. EAN has a

certificate of self-insurance from the Michigan Department of Insurance and Financial Services

dated January 1, 2016. [Farmers' Brief, Exhibit 4 ]. The certificate qualifies a self-insurer "to

operate as a Michigan automobile self-insured entity ... " [Id]. However, the Parks court

ultimately concluded that the No-Fault Act subjects only those vehicles required to be registered

in Michigan to the mandatory security requirements, regardless of whether vehicle is actually

covered by an insurance policy or whether the owner of the vehicle is self-insured. Id at 207.

In this case, Farmers argues that EAN is the owner of the vehicle and stands in priority

over the insurer of the operator of the vehicle. EAN is self-insured.2 Thus, under the priority

statute, as the owner, EAN's own insurance plan should provide coverage for PIP benefits. But

MCL 500.3101(4) specifically allows for a person or entity to be self-insured. It provides:

Security required by subsection (I) may be provided by any other method approved by the secretary of state as affording security equivalent to that afforded by a policy of insurance, if proof of the security is filed and continuously maintained with the secretary of state throughout the period the motor vehicle is driven or moved on a highway. The person filing the security has all the obligations and rights of an insurer under this chapter. When the context permits, "insurer" as used in this chapter, includes a person that files the security as provided in this section.

[Emphasis added].

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pursuant to the holding in Parks, supra, the priority statute is inapplicable to the case at bar

because the vehicle, which is registered in Maryland, was not driven in Michigan for more than

30 days as required by MCL 500.3102(1 ). 3 Enterprise/EAN contends that, under this subsection,

it is not required to provide PIP benefits because the vehicle is not required to be registered in

Michigan. The Court agrees.

Although not binding on the Court under the rule of stare decisis, MCR 7.215(C)(l), the

Court finds persuasive the reasoning in Heichel v Geico lndem Co, unpublished per curiam

opinion of the Court of Appeals decided on March 1, 2016 (Docket Nos. 323818 and 324045);

2016 WL 805524. In Heichel, a Ford Fusion registered in North Carolina was involved in an

accident in Michigan. The Heichel case concerned a priority dispute. The car was owned by

EAN Holdings, LLC and had been in Michigan for less than 30 days when it struck plaintiff

Adam Heichel's motorcycle. The court held that, pursuant to Parks, supra, "the registration

requirement set forth in § 3101(1) is the key to liability under the no-fault act. A vehicle that

does not need to be registered in Michigan cannot trigger the application of the priority

provisions set forth in MCL 500.3114. Id at 4, citing Parks, supra at 203-204. Therefore, like

the circumstances of Geico and EAN in Heichel, the issue of priority is inapplicable to Farmers

and EAN in the instant case.

A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter.

[Emphasis added] MCL 500.3102(1).

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There is no dispute that EAN is a nonresident owner or registrant. It contends that,

because the vehicle was not used in the state for more than 30 days, it is not obligated to provide

no-fault coverage. In contrast, Farmers suggests that the car may have been driven outside of

Michigan. However, Farmers presents no evidence of this suggestion and Enterprise presents

evidence in the form of the affidavit of Kristen Zub, Risk Management Coordinator for

Enterprise. Ms. Zub averred that, after having reviewed the "unit history," the subject vehicle

was operated in Michigan from March 18, 2015 to April 11, 2015, which is less than 30 days.

[Enterprise's Brief, Affidavit of Kristen Zub]. Because the vehicle is not required to be registered

in Michigan, under MCL 500.3102(1 ), Enterprise/EAN is not subject to the no-fault security

requirements. Therefore, Enterprise/EAN's contention is correct and it is not liable to Farmers

for Plaintiffs PIP benefits.

IV. CONCLUSION

The priority of coverage statute is inapplicable in the instant case because the No-Fault

Act subjects only those vehicles required to be registered in Michigan to the mandatory security

requirements, regardless of whether the vehicle is actually covered by an insurance policy or

whether the owner of the vehicle is self-insured. Under MCL 500.3102(1 ), Enterprise is not

required to reimburse Farmers for benefits it paid to Plaintiff. Accordingly, the Court will grant

Enterprise/EAN's motion for summary disposition pursuant to MCR 2. l 16(C)(8) and (C)(l 0) and

will deny Farmers' motion.

DATED: 5/5/2017 /s/ Annette J. Berry

Circuit Judge

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STATE OF MICHIGAN



Plaintiff,

-v-


Defendants,

and



-v-


Cross Plaintiff,

-v-


Case No. 16-002031-NF

Hon. Annette J. Berry 16_002031 _NF


5/5/2017 4:14:52 PM CATHY M. GARRETT

Isl Cheryl Bascomb

ENTERPRISE LEASING CORPORATION OF DETROIT, LLC, GARY DUANE RUPP, PATSY VILLNEFF, TAMERA HARPER and EAN HOLDINGS, LLC,


Page 1 of2

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ORDER

At a session of said Court held in the Coleman A. Young Municipal Center, Detroit, Wayne County, Michigan, 51512017 on this: ----------------

Annette J. Berry PRESENT: --------------

Circuit Judge

The Court being advised in the premises and for the reasons stated in the foregoing

Opinion,

IT IS ORDERED that the motion for summary disposition filed by Defendant,

Enterprise Leasing Company of Detroit, LLC, is hereby GRANTED;

IT IS FURTHER ORDERED that the cross-motion for summary disposition filed by

Farmers Insurance Exchange is hereby DENIED;

IT IS FURTHER ORDERED that this resolves the last pending claim and closes the case.

Isl Annette J. Berry

Circuit Judge

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ST A TE OF MICHIGAN



Plaintiff,

-v-


Defendants,

and



-v-


Cross Plaintiff,

-v-

FARMERS INSURANCE EXCHANGE, ENTERPRISE LEASING CORPORATION OF DETROIT,

Case No. 16-002031-NF

Hon. Annette J. Berry

16-002031-N F


7/20/2017 2:34:16 PM CATHY M. GARRETT

/s/ Cheryl Bascomb

LLC, GARY DUANE RUPP, PATSY VILLNEFF, TAMERA HARPER and EAN HOLDINGS, LLC,


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ORDER

At a session of said Court held in the Coleman A Young Municipal Cente712~f2~~qWayne

County, Michigan on this: ______ _

Annette J. Berry

Defendant, FARMERS INSURANCE EXCHANGE (hereafter "Defendant"), has

filed a Motion for Reconsideration pursuant to MCR 2.119(F) or, in the alternative, for

Relief from Judgment pursuant to MCR 2.612(C), and the Court being fully advised in

the premises states as follows:

Because Defendant has merely presented the same issues already ruled on by

the Court, either expressly or by reasonable implication, the motion will not be granted.

MCR 2.119(F) (3); Sargent v AM Eckhouse, 00, PC, 171 Mich App 703, 706; 430

NW2d 763 (1988). Defendant has also failed to demonstrate a palpable error by which

the Court and the parties have been misled, and has failed to show that a different

result would necessarily result from correction of the alleged mistake. MCR 2.119(F)(3);

Brown v Libbey-Owens-Ford Co, 166 Mich App 213, 216; 420 NW2d 106 (1987).

Accordingly, the Court in its discretion will deny the Motion for Reconsideration.

Charbeneau v Wayne County General Hospital, 158 Mich App 730, 733; 405 NW2d 151

(1987).

Additionally, Defendant has failed to demonstrate that any of the grounds for

Relief from Judgment are present in this case. MCR 2.612(C). As such, Defendant's

Motion for Relief from Judgment will be denied.

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Therefore, IT IS ORDERED that Defendant's Motions for Reconsideration and for

Relief from Judgment are hereby DENIED.


Circuit Judge

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~ug, L, LV 11 ~: iijAIYI No. 9694 P. 1/7

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE'. COUNTY OF WASHTENAW

JONTE EVERSON,

Plaintiff,

V


Defendant/Third-Party Plaintiff,

V


ThirdwParty Defendant.

Daniel G. Romano (P49117) Attorney for Plaintiff FAX: 248-9361 2105

Matthew C. Koss (P7408B) Attorney for Defendantffhird-Party Plaintiff FAX: 248-244-9656

Mjchael B. Barey (P41445) Attorney for Third-Party Defendant FAX: 248-324-2610

Case No. 16-369-NF Honorable David S. Swartz

OPINION AND ORDER GRANTING SUMMARY DISPOSITION

At a Session of Court held in the Washtenaw County Trial Court

City of Ann Arbor, on August 2, 2017.

PRESENT: HONORABLE DAVIDS. SWARTZ, Circuit Court Judge

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Third-party Defendant (Enterprise) moved for dismissal of

Third~Party Plaintiff's (Farmers) complaint for declaratory relief.

Farmers1 seel{s reimbursement from Enterprise on the grounds that

Enterprise, as the vehicle owner, is the priority insurer liable for PIP

benefits paid to Plaintiff by Farmers as the servicing insurer.

It is undisputed that Plaintiff was injured in an accident while

driving a vehicle leased from Enterprise in Michigan. Uncontroverted

evidence shows that the vehicle had been operated in Michigan for

less than thirty (30) days when the accident occurred. (Supplement to

Enterprise Exhibit C). No personal or household noNfault policy was

available to provide PIP benefits to Plaintiff. Enterprise denied

Plaintiff's claim for PIP benefits on the grounds that the vehicle was

exempt from the security requirements of no~fault.

As no PIP coverage was available, Plaintiff applied for benefits

through MACP. MCL 500.3172(1). The claim was assigned to Farmers

as the servicing insurer. MCL 500.3173(a). A servicing insurer has an

absolute duty to provide coverage and is required to promptly pay

assigned PIP benefits or face assessed penalties. MCL 500.3175(1).

In support of its motion for summary disposition, Enterprise

argues that Parks v, DAIIE, 426 Mich. 191 (1986) is controlling law and

"exactly on point." In Parks, plaintiff was injured while driving his

employer's out-of-state vehicle in Michigan. The priority battle was

between the employer1s insurer and the injured employee's personal

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insurer. The Court found the employee's personal insurer liable

because the employer's out-of state vehicle was exempt from PIP

liab!lity. Parks, at 207.

Similar to Parks, Enterprise argues that its out~of-state vehicle

was operated in Michigan for less than thirty days and was, therefore,

exempt from the security requirement of subsection 3101(1). Because

no other PIP coverage is available, Farmers, as the insurer of last

resort, is liable to provide PIP benefits to Plaintiff. Therefore,

Enterprise's motion for summary disposition is properly granted.

Farmers responds that Enterprise's reliance on Parks is

''misplaced" because, unlike in Parks, Enterprise is not exempt and

must be considered a Michigan resident under no-fault law:

"Here, Enterprise is claiming that MCL 500.3102 exempts it from the requirements of MCL 500.3101. However, MCL 500.3102 applies only to nonresidents and that does not apply to Enterprise. **~ MCL 500.31.02 is an exemption that is meant to protect transients and other temporary travelers in Michigan from the penalties imposed by the No-Fault Act." *** EAN Holdings LLC is a Michigan Corporation ... which was formed on March 11, 2009 and has a Resident Agent of The Corporation Company located at ... Plymouth, Michigan 48170. (EXhibit K). As such, Enterprise is a resident for purposes of the Michigan No-Fault Act and MCL 500.3102 does not apply.

In the alternative, Farmers asserts, Parks is distinguishable

because it involved a work-related injury and an out~of-state vehicle

that had only incidental contact with Michigan. In light of the argued

distinctions, Farmers counsels that a ruling based on Parks would

result in "an erroneous application to a situation that was not even

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considered by the Michigan Supreme Court in its opinion written

almost 30 years ago.U Instead, the Court should properJy conclude

that Enterprise, the owner of the vehicle, is the priority insurer:

"Enterprise is the higher priority insurer, and is responsible for no-fault benefits in relation to this accident, under the plain language of the No-Fault Act. Enterprise, as a certifying self-insurer, is bound to provide no-fault benefits in. this easel where there was accidental bodily injury. As the owner of the 2015 Dodge Chargers Enterprise has asserted that it is an out-of-state vehicle and was self-insured by Enterprise. Plaintiff in this case did not have a no-fault policy available in his household. Farmers asserts that Enterprise is higher in order of priority under MCL S00.3114(4)(a) because it insured the owner of the vehicle Plaintiff was occupying at the time of the accident. Enterprise is the priority insurer responsible for Plaintiff's first~party no-fault benefits for this accident based on its ownership of the motor vehicle in which Plaintiff sustained accidental bodily injury."

Farmers also appeals to the Court to bar Enterprise·s attempt to

"sidestep its responsibility" as it has an absolute duty under cited

case law to provide insurance coverage for permissive users of its

vehicles. State Farm Mutual Auto Ins. Co. v. Enterprise Leasing Co.,

452 Mich. 25 (1996), The statutory order of priority provides no

exception or exemption based on the status of vehicle registration.

Therefore, imposing liability on the nonresident vehicle owner is

"completely consistent with the no-fault act and congruent with the

interpretation and application of analogous areas of Michigan law."

Michigan law mandates that motor vehicles required to be

registered in Michigan must maintain security for payment of benefits

under personal protection insurance, property protection insurance,

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and residual liability insurance. MCL 500.3101(1). A nonresident

owner of a vehicle registered in another state is also subject to the

security requirement if the out-of state vehicle is operated in Michigan

for more than thirty days during a year:

A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintatns security for the payment of benefits pursuant to this chapter. MCL § 500.3102(1).

Based on the evidence, reasonable minds would not disagree

that the vehicle driven by Plaintiff had not been operated in Michigan

for more than thirty days prior to the accident. Viewing the evidence

in the light most favorable to the opposing party, tlie Court finds no

genuine issue. of fact exists regarding Enterprise's claim of exemption

from security under subsection 3102(1). MCR 2. l l 6(C)(l 0).

Farmers argues that, despite the validity of the claimed

exemption, where no PIP coverage is otherwise available to Plaintiff,

Enterprise, as the nonresident and self-insured vehicle owner, is the

insurer first in the order of priority regardless of whether the no~fault

act required Enterprise to maintain security on the vehicle.

Subsection 3101(1) is the source of the general rule that an

injured person must first look to his or her own personal insurer for

recovery of PIP benefits. Frierson v. W. Am. Ins. Co., 261 Mich. App.

732, 735-36 (2004). Where no personal insurer is available to pay PIP

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benefits, other insurers having a specified relationship to the accident

are statutorily obligated in accordance with an order of priority set

forth in MCL 500.3114(4),

However, as Enterprise argues, and one court has persuasively

opined, despite notable factual distinctions, controlling law in Pa.rks

"underpins" the decision;

"[T]hese distinctions make no difference. In Parks, the vehicle involved in the accident was owned by a self~insured, nonresident company, was-registered in another state, and was not required to be registered in Michigan. The same is true here. In Parks, another insurer contended that the nonresident vehicle owner was liable

' under MCL 500.3114. regardless of whether the no-fault act required the owner to maintain security on the vehicle. Again, the same is true here. In Parks, the Supreme Court rejected the complaining insurer's argument, holding that the registration requirement set forth in Section 3101(1) is the key to liability under the no~fault act. A vehicle that does not need to be registered in Michigan cannot trigger the application of the priority provisions set forth in MCL 500.3114. Parks, 426 Mich. at 203-204. This core holding underpins our decision in this case." Heichel v. Geico, 2016 WL 805524.

As held by Parks and applied in Heichel, the "key" to liability

under the priority provisions of the no-fault act is the registration

requirement set forth in subsection 3101(1), not ownership of the

vehicl~. A vehicle that is exempt from registration in Michigan cannot

and does not trigger application of the statutory order of priority

under no-fault law.

Notably, the Heichel Court did not refer to, rely on or even

mention the case relied on by Farmers, Enterprise Leasing Co., 452

Mich. 25 (l996}. Leave to appeal the March I, 2016 judgment of the

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Court of Appeals was considered by the Supreme Court and denied.

Heichel v. Geico Indem, Co., 500 Mich. 92 I (2016).

For the reasons stated by Enterprise, the Court finds Farmers'

remaining arguments without merit.

The relevant and material evidence shows that Enterprise is a

Delaware corporation and not a resident of Michigan. There is no

cited authority for Farmers' legal conclusion that the presence of a

resident agent in Michigan or the filing of a certificate of authority to

transact business in Michigan establishes residency in Michigan. The

cases cited by Farmers as controlling and binding precedent either do

not apply or are readily distinguishable.

Accordingly, Enterprise's motion for summary disposition is

GRANTED.

Farmers' complaint for declaratory and other related relief is

dismissed in its entirety and with prejudice ..

IT IS SO ORDERED.

This is a final order that resolves all pending claims and closes

the case.

-~...UC~

David S. Swartz, Circuit Court Judge

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EXHIBIT 0

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McMullen v. Citizens Insurance Company, Not Reported in N.W. Rptr. (2017)

2017 WL 2562545

2017 WL 2562545 Only the Westlaw citation

is currently available.

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

UNPUBLISHED Court of Appeals of Michigan.

Tommie MCMULLEN, Plaintiff-Appellee,

v. CITIZENS INSURANCE COMP ANY and Travelers

Insurance Company, Defendants, and

Farmers Insurance Exchange, Defendant/ Cross-Plaintiff-Appellant,

and Markel Insurance Company,

Defendant/ Cross-Defendant-Appellee.

Synopsis

No. 332373 I

June 13, 2017

Background: Injured passenger brought action against multiple no-fault insurers for personal protection insurance benefits following accident involving vehicle stolen from automobile dealership. The Circuit Court, Washtenaw County, determined that · insurer of last resort through the Michigan Assig~ed Claims Plan was the insurer of highest priority. Insurer of last resort filed motion for reconsideration. The Circuit Court denied the motion

for reconsideration. Insurer of last resort appealed.

[Holding:] The Court of Appeals held that vehicle was a "covered auto" under dealer's insurance policy, and thus dealer's insurer was insurer of highest priority.

Reversed and remanded.

West Headnotes (1)

[1] Insurance Automobiles Covered

217 Insurance

2 I 7XXII Coverage--automobile Insurance

217XXII(A) In General

217k2651.Automobiles Covered

217k2652 In general

Vehicle stolen from automobile dealership was a "covered auto" under dealer's insurance policy, and thus dealer's insurer was the insurer of highest priority to provide personal protection insurance benefits to passenger injured in single-vehicle accident; vehicle was required to have nofault benefits at the time of the accident, dealer was not operating the vehicle on the road while displaying a special plate, and vehicle was required to be registered at the time of the accident. Mich. Comp. Laws Ann. §§ 257.216, 257.235, 257.244(4).


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Cases that cite this headnote

Washtenaw Circuit Court, LC No. 14--000708-NF

Before: Jansen, P.J., and Murphy and Borr'ello, JJ.

Opinion

Per Curiam.

*1 Defendan ti cross-plaintiff-appellant, Farmers Insurance Exchange (Farmers), appeals as of right the order denying the relief requested in Farmers' motion for reconsideration of the trial court's earlier order granting summary disposition in favor of defendant/cross-defendantappellee, Markel Insurance Company (Markel), and denying Farmers' motion for summary disposition with regard to its cross-claim against Markel. We reverse and remand.

This case arises from a motor vehicle accident in which plaintiff suffered substantial m3unes. Plaintiff was the passenger in a stolen Mercury Sable when the Mercury was involved in a single vehicle accident. A woman named Sara Soenen donated the Mercury to Purple Heart before the accident. KBS Auto Sales (KBS), LLC, an automobile dealership, purchased the Mercury, but did not obtain a new registration for the vehicle. At the time of the accident, KBS maintained a no-fault insurance policy through Markel. Following

the accident, Farmers was assigned as the insurer of last resort through the Michigan Assigned Claims Plan. It is undisputed that plaintiff was not a named beneficiary under a no-fault policy, and he did not live with any family members who were named beneficiaries under a no-fault insurance policy.

Plaintiff filed the instant action against multiple no-fault insurers, including Markel and Farmers, for personal protection insurance (PIP) benefits. Plaintiff requested that the trial court determine which insurer is responsible for payment of the PIP benefits. Farmers filed a cross-claim against Markel, contending that Markel is the insurer of highest priority. The trial court granted summary disposition in favor of defendants Citizens Insurance Company and Travelers Insurance Company, and the court's decision with regard to these defendants is not challenged on appeal. The court also granted summary disposition in favor of Markel with regard to plaintiffs complaint. Farmers filed a motion for reconsideration, as well as a motion for summary disposition with regard to Farmers' cross-claim. The court denied the relief requested in Farmers' motion for reconsideration and denied Farmers' motion for summary disposition on its cross-claim.

Farmers argues that the trial court erred by granting summary disposition in favor of Markel because Markel was the insurer of higher priority. We agree.

We review for an abuse of discretion the trial court's decision to grant or deny a motion for

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reconsideration. D'Alessandro Contracting Group, LLC v. Wright, 308 Mich. App. 71, 76; 862 N.W.2d 466 (2014). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Id. MCR 2.l 19(F)(3) provides:

Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

*2 "[We review] the grant or denial of summary disposition de novo." Farm Bureau Gen. Ins. Co. v. Blue Cross Blue Shield of Mich., 314 Mich. App. 12, 19; 884 N.W.2d 853 (2015). "'A motion under MCR 2.116(C)(I0) tests the factual sufficiency of the complaint.' " Id. (citation omitted). A court properly grants a motion for summary disposition under MCR 2.116(C)(I0) when there is no genuine issue of material fact. Id. " 'There is a genuine issue of material

fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.' " Id. (citation omitted).

Finally, to the extent that resolution of this issue involves the proper interpretation of a statute, we review de novo issues of statutory interpretation. Dell v. Citizens Ins.. Co. of America, 312 Mich. App. 734, 739; 880 N.W.2d 280 (2015).

The pnmary goal of statutory interpretation is to ascertain the legislative intent that may reasonably be inferred from the statutory language. The first step m that determination is to review the language of the statute itself. Unless statutorily defined, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. [This Court] may consult dictionary definitions to give words their common and ordinary meaning. When given their common and ordinary meaning, [t]he words of a statute provide the most reliable evidence of its intent .... [Spectrum Health Hosps v. Farm Bureau Mut Ins. Co.


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of Mich, 492 Mich. 503, 515; 821 N.W.2d 117 (2012) ( citation and quotation marks omitted; second alteration in original).]

The issue in this case is whether Markel had priority over Farmers, the insurer of last resort, to pay plaintiffs PIP benefits under the no-fault act, MCL 500.3101 et seq. The no-fault act was enacted in order to provide " 'assured, adequate, and prompt recovery for economic loss arising from motor vehicle accidents.' " Adanalic v. Harco Nat'/. Ins. Co., 309 Mich. App. 173, 187; 870 N.W.2d 731 (2015) (citation omitted). MCL 500.3101 provides, in relevant part, "The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance." The relevant priority statute, MCL 500.3114, provides the priority order for payment of PIP benefits. The relevant priority section states:

Except as provided in subsections ( 1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:


(b) The insurer of the operator of the vehicle occupied. [MCL 500.3114(4).]

Farmers was assigned to plaintiffs claim through the Michigan Assigned Claims Plan and is required to provide PIP benefits to plaintiff if Markel is not obligated to provide PIP benefits to plaintiff. See MCL 500.3172(1). Therefore, the sole question presented in this case is whether Markel is the insurer of highest priority pursuant to MCL 500.3114(4) because Markel insured the owner of the Mercury at the time of the accident.

Farmers argues that Markel is required to provide PIP benefits to plaintiff pursuant to MCL 500.3114(4) because Markel insured the owner of the Mercury. In contrast

. ' Markel argues that the no-fault policy provides that a "covered auto" is one that was "required to have No-Fault benefits in the state where [it is] licensed or principally garaged," and that the Mercury was not "required to be registered" in Michigan because KBS is an automobile dealer. Therefore, according to Markel, KBS was not required to obtain no-fault coverage for the Mercury, and the no-fault policy in place at the time of the accident did not apply to the vehicle.

*3 Farmers relies on Farmers Ins. Exch. v. Farm Bureau Gen. Ins. Co. of Mich, 272 Mich. App. 106; 724 N.W.2d 485 (2006), in support of its position. In Farmers, a motorcyclist was injured when his motorcycle was hit by a van. Id. at 108. The van was uninsured at the time of the accident. Id. However, one of the two owners of the van maintained a policy of no-fault insurance through the defendant with regard to another vehicle. Id. The insurance policy


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did not list the van as an insured vehicle, and it did not list the other owner of the van as a named insured. Id. The motorcyclist filed a claim for PIP benefits through the Michigan Assigned Claims Plan, formerly known as the Michigan Assigned Claims Facility, which assigned the claim to the plaintiff. Id. The plaintiff filed an action for . declaratory relief regarding which no-fault insurer was required to pay the PIP benefits. Id. The issue in the case was whether the language in MCL 500.3114(5)(a) requires an insurer to pay PIP benefits when that insurer did not issue a policy covering a vehicle involved in the accident. Id. at 110.

Although the accident in Farmers involved a motorcycle, MCL 500.3114(5)(a), the priority statute at issue in the case, contains relevant language that is identical to the priority statute at issue in this case. MCL 500.3 l 14(5)(a) provides:

A person suffering accidental bodily injury arising from a motor vehicle accident that shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.

(b) The insurer of the operator of the motor vehicle involved in the accident.

( c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.

( d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident. [Emphasis added.]

This Court concluded that the plain language of the statute provided that "the insurer need not insure the vehicle in the accident, but must insure the owner or registrant." Farmers, 272 Mich. App. at 113. Therefore, because the defendant insured one of the owners of the van, the defendant was the first in priority to provide PIP benefits. Id This Court further explained:

Had the Legislature intended MCL 500.3114(5)(a) only to require an insurer to provide no-fault benefits if the insurer actually insured the motor vehicle involved in the accident, it could have chosen the following language for MCL 500.3114(5) (a): "The insurer of the motor vehicle involved in the accident " , deleting the first prepositional phrase, "of the owner or registrant." Clearly, the Legislature did not choose that language, and for us to adopt defendant's position would be to render the phrase "of the owner or registrant" in the statute nugatory. [Id. at 113-114.]

This Court further explained that its holding was consistent with a legislative intent to insure persons, rather than vehicles, from loss. Id. at 114. This Court quoted· an earlier decision of this Court interpreting materially identical language, in which this Court stated, " '[T]he statute does not state that the injured person must seek these benefits from the insurer of the motor vehicle.'

" Id. at 115 (emphasis added; alteration in


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original), quoting Pioneer State Mut. Ins. Co. v. Titan Ins. Co., 252 Mich. App. 330, 336; 652 N.W.2d 469 (2002).

Additionally, Farmers relies, in large part, on this Court's recent decision in Titan Ins. Co. v. American Country Ins. Co., 312 Mich. App. 291; 876 N.W.2d 853 (2015). The Titan decision concerned two consolidated

. . cases stemming from motor vehicle accidents involving uninsured drivers. Id. at 294-295. In both cases, the vehicles in issue were uninsured, and the operators of the vehicles were not insured under a no-fault policy. Id. at 295. However, in both cases, the owners of the vehicles involved in the accidents, Safe Arrival Transportation and Bronco Express Company, maintained policies of no-fault insurance with the defendant covering other vehicles. Id. In both cases, the plaintiff was assigned as the insurer of last resort. Id. This Court held that because the defendant insured other vehicles owned by Safe Arrival and Bronco Express, the defendant was responsible for the claims under MCL 500.3114(4). Id. at 302.

*4 We conclude that Farmers and Titan stand for the proposition that the nofault insurer of the owner of the vehicle involved in the accident is the insurer of highest priority under MCL 500.3114(4), regardless of whether the vehicle involved in the accident was covered under the insurance policy. Both opinions reach the conclusion that the insurer of the owner of the vehicle involved in the accident has priority over an assigned insurer, regardless of whether the vehicle was insured under the no-fault policy. As this Court indicated in Farmers,

had the Legislature intended for the focus of the priority language in issue to be on the vehicle, the Legislature would have worded the statute to indicate that the insurer insures the motor vehicle, rather than the owner of the vehicle. Farmers, 272 Mich. App. at 113-114. The parties do not dispute that Markel issued a no-fault insurance policy to KBS that was effective at the time of the accident. Therefore, it is irrelevant whether the Mercury was a "covered auto" as defined in Markel's insurance policy because Markel provided no-fault insurance to KBS at the time of the accident.

Markel contends that the Mercury was required to be registered in Michigan in order for the Markel insurance policy to apply in this case. Markel cites Parks v. Detroit Auto Inter-Ins. Exch., 426 Mich. 191; 393 N.W.2d 833 (1986), in support of its position. In Parks, the plaintiff was injured while working inside a trailer owned by his employer. Id. at 196. The priority provision at issue in the case stated that "an employee 'who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.'" Id., quoting MCL 500.3114(3). The Court concluded that the trailer was not required to be registered in Michigan under MCL 500.3101(1). Id. at 200. Therefore, the Court concluded that

an out-of-state vehicle not required to be registered in Michigan and not operated


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in this state for more than thirty days is not subject to the security provisions or [MCL 500.3114(3)] of the no-fault act and that when an employee is injured while an occupant of such a vehicle, the employee's pe~sonal insurer, if there 1s one, must pay the employee's personal protection benefits under [MCL 500.3101(1)]. [Id.]

Parks can be distinguished from this case for several reasons. First, the statutory provision at issue in Parks differs from the provision at issue in this case. The priority provision at issue in Parks involved an injury suffered by an employee occupying a motor vehicle owned or registered by the employer. Id. at 196. Importantly, the language of the statute at issue in Parks referred to the insurer of the vehicle, rather than the insurer of the owner of the vehicle. Id. Additionally, the plaintiff in Parks maintained a policy of no-fault insurance, and a plaintiffs own insurer is generally the no-fault insurer of highest priority. Id. at 197, 202-203. Therefore, Parks differs from the instant case in several key respects.

Importantly, however, our Supreme Court stated in a footnote:

[W]e assume [MCL 500.3114(4)] does not apply because we read the phrase "owner or registrant of the vehicle occupied" within [MCL 500.3114(4)] to be part of

the more. complete requirement as stated in [MCL 500.3101(1)]: "The owner or registrant of a motor vehicle required to be registered in this state[.]" [Id. at 203 n. 3.]

We conclude that our Supreme Court's statement in the footnote constituted obiter dictum and did not constitute binding precedent. See Auto-Owners Ins. Co. v. Seils, 310 Mich. App. 132, 160 · n. 7· , 871 N.W.2d 530 (2015) ("Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, lack the force of an adjudication.") (Citation and quotation marks omitted.) The Court's discussion in the footnote in Parks constituted obiter dictum because it was not necessary to determine the case at hand. The priority rule outlined in MCL 500.3114(4) was not at issue in Parks, and the Court stated that it "assumed" that MCL 500.3114(4) did not apply in the case without directly deciding whether that priority rule had any effect on the case. Parks, 426 Mich. at 203 n. 3. Therefore, the Court's statements regarding MCL 500.3114(4) were not necessary to determine the case at hand and, therefore, lacked the force of an adjudication. See Seils, 310 Mich. App. at 160 n. 7.

*5 Markel also cites MEEMIC Ins. Co. v. Mich. Millers Mut. Ins., 313 Mich. App. 94; 880 N.W.2d 327 (2015), for the proposition that MCL 500.3114(4) does not apply when the vehicle is exempt from no-fault coverage under MCL 500.3101(1). In MEEMIC, a man named John Putvin owned a 1966 Corvette, which was stored in a commercial storage facility. Id. at 95. Putvin did not drive the Corvette in the year


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preceding the incident, but he purchased comprehensive insurance coverage that covered the Corvette. Id. at 96-97. Two men performed work on the Corvette in the storage facility and caused a fire. Id. The fire caused damage to the personal property of two other individuals that was stored at the facility. Id. at 97. The plaintiff, the insurer of two in1ividuals whose property was damaged, sued a variety of insurers-.,-to recover its losses. Id. Ultimately, the plaintiff added Home-Owners Insurance Company (Home-Owners) to the complaint, alleging that Home-Owners issued a no-fault policy to Putvin that covered the automobiles that he continued to drive. Id.

This Court concluded that Putvin was not required to maintain no-fault coverage for the Corvette during the period at issue because he did not drive the Corvette during that time. Id. at 99-100. The relevant priority provision at issue in the case provides that "a person who suffers accidental property damage 'shall claim property protection insurance benefits' first from 'insurers of owners or registrants of vehicles involved in the accident .... ' "Id. at 100, quoting MCL 500.3125. This Court concluded:

Thus, construing MCL 500.3125 in harmony with MCL 500.3101(1), we conclude that an insurer of an owner of a motor vehicle involved in an accident is not statutorily required to pay property protection insurance benefits to a

person suffering accidental property damage if the motor vehicle involved in the accident was not driven or moved upon a highway and the owner or registrant elected to forgo that coverage in favor of comprehensive coverage, as permitted under MCL 500.3101(1). Because the coverage is optional in such cases, whether the policy provides coverage must be determined from the policy itself. [Id. at 102 (citation omitted).]

This Court held that because the Corvette was not driven on a highway during the relevant period, Putvin was not required to maintain security for no-fault benefits under MCL 500.3101(1), and that, because Putvin maintained a comprehensive insurance policy, Home-Owners was able to exclude the Corvette from coverage under its no-fault policy. Id. at 103. Therefore, Home-Owners was not liable to pay property protection benefits. Id. Importantly, however, this Court stated, "Because this case only involves property protection insurance, we express no opinion as to whether the same would be true for claims involving personal protection insurance or residual liability insurance." Id. at 102 n. 2.

We conclude that MEEMIC 1s distinguishable from the instant case. First,


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MEEMIC involved property protection insurance benefits, and this Court expressly stated that its opinion did not address claims involving PIP benefits. Id. at 102 n. 2. In addition, the MEEMIC case centered around the fact that the Corvette had not been driven or moved on a highway, and the owner of the Corvette had purchased a comprehensive coverage policy covering the ;ehicle. Id. at I 02. In this case, the parties do no contest that the Mercury was driven on the street, and neither party asserts that KBS maintained a separate policy covering the vehicle.

However, even assuming that Markel is correct that the Mercury must be registered or required to be registered in Michigan in order for Markel's no-fault policy to apply, we conclude that the Mercury was required to be registered at the time of the accident because it was driven on a street or highway without conforming to the provisions of the Michigan Vehicle Code, MCL 257.1 et

seq., relating to dealers. 1 Markel points to several registration statutes in support of its position that the vehicle was not required to be registered in Michigan. MCL 257.216 provides, in relevant part:

*6 Every motor vehicle, recreational vehicle, trailer, semitrailer, and pole trailer, when driven or moved on a street or highway, is subject to the registration and certificate of title provisions of this act except the following:

(a) A vehicle driven or moved on a street or highway in conformance with the provisions of this act relating to

manufacturers, transporters, dealers, or nonresidents. [Emphasis added.]

Thus, under MCL 257.216, if a vehicle is driven on a street or highway in compliance with the provisions of the Michigan Vehicle Code relating to automobile dealers, then the vehicle does not need to be registered. Markel also points to MCL 257.235, which indicates, in relevant part:·

If the transferee of a vehicle is a new motor vehicle dealer or a used or secondhand vehicle dealer that acquires the vehicle for resale, the dealer is not required to obtain a new registration of the vehicle or forward the certificate of title to the secretary of state, but shall retain and have in the dealer's immediate possession the assigned certificate of title with the odometer information properly completed, except as otherwise provided in [MCL 257.235b]. A dealer shall obtain a certificate of title for a vehicle having a salvage certificate of title before the dealer may operate the vehicle under dealer's license plates. Upon transferring title or interest to another person that is not a dealer, the dealer shall complete an assignment


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1

and warranty of title upon the certificate of title, salvage certificate of title, or dealer reassignment of title form and make an application for registration and a new title as provided in [MCL 257.217(4)]. [Emphasis added.]

We agree with Market's contention that the Secretary of State Dealer Manual indicating that a dealer must obtain no-fault insurance lacks the force and effect of law. Our Supreme Court has held that the Dealer Manual is not entitled to the force and effect of law because it was not properly promulgated as a rule. Goins v. Greenfield Jeep Eagle, Inc., 449 Mich. I, 7-10; 534 N.W.2d 467 (1995). Accordingly, the Dealer Manual is not entitled to deference on the issue whether KBS was required to obtain no-fault coverage for the Mercury. For the same reason, we also agree with Markel that the Secretary of State Dealer Application lacked the force of law.

Further, MCL 257.244(4) provides:

A dealer owning a vehicle of a type otherwise required to be registered under this act may operate or move the vehicle upon a street or highway without registering the vehicle if the vehicle displays, in the manner prescribed in section 225, 1 special plate issued to the owner by the secretary of state. As used in this subsection, "dealer" includes an employee,

servant, or agent of the dealer. [Emphasis added.]

Reading the above statutes in pari materia, a dealer does not need to obtain a new registration for a vehicle, but the dealer must display a special dealer plate in order to operate or move the vehicle on the street without a registration. See Titan Ins. Co. v. State Farm Mut. Auto Ins. Co., 296 Mich. App. 75, 84; 817 N.W.2d 621 (2012) ("Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates.")

*7 In this case, the parties do not dispute that KBS is a dealer under the Michigan Vehicle Code. MCL 257.216 clarifies that a motor vehicle operated on a street by a dealer does not need to be registered under the nofault act, but only if the vehicle is driven in compliance with the other provisions of the act. The Michigan Vehicle Code also states that a dealer does not need to obtain a new registration for a vehicle. See MCL 257.235. However, MCL 257.244(4) clarifies that a dealer may only operate the vehicle on the street if that vehicle displays a special plate. In this case, the parties do not dispute that the Mercury would have to be registered if KBS did not own the vehicle. Additionally, it is undisputed that the Mercury did not display a special plate at the time of the accident. Therefore, because the dealer was not operating the vehicle on the road while displaying a special plate, the Mercury was


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McMullen v. Citizens Insurance Company, Not Reported in N.W. Rptr. (2017) 2017 WL 2562545 ·---------------------

required to be registered at the time of the accident.

Therefore, we conclude that the Mercury constituted a "covered auto" under Markel's insurance policy. Even assuming that Markel is correct that the definition of "covered auto" states that an automobile must be "required to have No-Fault benefits in the state where [it is] licensed or principally garaged," for the reasons discussed, the Mercury was required to have no-fault benefits in Michigan at the time of the accident. Therefore, the Mercury was

End of Document

covered under the no-fault policy. For the reasons discussed, Markel is the insurer of highest priority to provide PIP benefits to plaintiff. We reverse and remand for entry of an order granting summary disposition in favor of Farmers.

Reversed and remanded. We do not retain jurisdiction.

All Citations

Not Reported m N.W. Rptr., 2017 WL 2562545


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