                           STATE OF MICHIGAN

                             COURT OF APPEALS



PAMELA JOHNSON,                                                      UNPUBLISHED
                                                                     October 30, 2018
                Plaintiff-Appellant,

v                                                                    No. 338781
                                                                     Wayne Circuit Court
MICHIGAN AUTOMOBILE INSURANCE                                        LC No. 16-005249-NF
PLACEMENT FACILITY,

                Defendant-Appellee.


Before: MURRAY, C.J., and BORRELLO and RONAYNE KRAUSE, JJ.

PER CURIAM.

     In this no-fault action,1 plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendant. We affirm.

        Plaintiff argues that there is a genuine issue of material fact regarding whether she
unlawfully took the vehicle of her daughter, Takilia Joseph. A motion for summary disposition
under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.” Shinn v Mich Assigned
Claims Facility, 314 Mich App 765, 768; 887 NW2d 635 (2016). Decisions on such a motion
are reviewed de novo. Id.

         In evaluating a motion for summary disposition brought under Subrule (C)(10), a
         reviewing court considers affidavits, pleadings, depositions, admissions, and other
         evidence submitted by the parties in the light most favorable to the party opposing
         the motion. Summary disposition is properly granted if the proffered evidence
         fails to establish a genuine issue regarding any material fact and the moving party
         is entitled to judgment as a matter of law. [Id. (citation omitted).]

“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.” Bahri v
IDS Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014) (quotation marks and



1
    MCL 500.3101 et seq.


                                                 -1-
citation omitted). Issues of statutory interpretation are reviewed by this Court de novo. Kemp v
Farm Bureau Gen Ins Co of Mich, 500 Mich 245, 252; 901 NW2d 534 (2017).

       MCL 500.3113 provides, in relevant part:

       A person is not entitled to be paid personal protection insurance benefits for
       accidental bodily injury if at the time of the accident any of the following
       circumstances existed:

       (a) The person was willingly operating or willingly using a motor vehicle or
       motorcycle that was taken unlawfully, and the person knew or should have known
       that the motor vehicle or motorcycle was taken unlawfully

       In determining the meaning of “taken unlawfully,” our Supreme Court, in Spectrum
Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 516-517; 821 NW2d 117
(2012), stated:

                In determining the Legislature’s intended meaning of the phrase “taken
       unlawfully,” we must accord the phrase its plain and ordinary meaning, and we
       may consult dictionary definitions because the no-fault act does not define the
       phrase. The word “unlawful” commonly means “not lawful; contrary to law;
       illegal,” and the word “take” is commonly understood as “to get into one’s hands
       or possession by voluntary action.” When the words are considered together, the
       plain meaning of the phrase “taken unlawfully” readily embraces a situation in
       which an individual gains possession of a vehicle contrary to Michigan law.
       [Citations omitted.]

The Spectrum Health Court also held that “any person who takes a vehicle contrary to a
provision of the Michigan Penal Code [, MCL 750.1 et seq.]—including MCL 750.413 and MCL
750.414, informally known as the ‘joyriding’ statutes—has taken the vehicle unlawfully for
purposes of MCL 500.3113(a).” Id. at 509.

       MCL 750.413 provides:

       Any person who shall, willfully and without authority, take possession of and
       drive or take away, and any person who shall assist in or be a party to such taking
       possession, driving or taking away of any motor vehicle, belonging to another,
       shall be guilty of a felony, punishable by imprisonment in the state prison for not
       more than 5 years.

       MCL 750.414 provides:

       Any person who takes or uses without authority any motor vehicle without intent
       to steal the same, or who is a party to such unauthorized taking or using, is guilty
       of a misdemeanor punishable by imprisonment for not more than 2 years or a fine
       of not more than $1,500.00. However, in case of a first offense, the court may
       reduce the punishment to imprisonment for not more than 3 months or a fine of
       not more than $500.00. However, this section does not apply to any person or

                                               -2-
        persons employed by the owner of said motor vehicle or anyone else, who, by the
        nature of his or her employment, has the charge of or the authority to drive said
        motor vehicle if said motor vehicle is driven or used without the owner’s
        knowledge or consent.

       The Spectrum Health Court analyzed MCL 750.413 and MCL 750.414, concluding that
both “make it unlawful to take any motor vehicle without authority, effectively defining an
unlawful taking of a vehicle as that which is unauthorized.” Spectrum Health, 492 Mich at 517-
518. “Because a taking does not have to be larcenous to be unlawful, the phrase ‘taken
unlawfully’ in MCL 500.3113(a) applies to anyone who takes a vehicle without the authority of
the owner, regardless of whether that person intended to steal it.” Id. at 518.

        There is no genuine issue of material fact regarding whether plaintiff unlawfully took
Joseph’s vehicle, a 2005 Pontiac Grand Prix. Extensive testimony was presented that plaintiff
did not have Joseph’s permission to use the Grand Prix on January 10, 2016. Therefore,
plaintiff’s taking of Joseph’s vehicle was unauthorized and, thus, constitutes a violation of MCL
750.413 and MCL 750.414. Id. at 517-518.

      Plaintiff next argues that there is a genuine issue of material fact regarding whether she
knew or should have known that she unlawfully took Joseph’s car.

       “MCL 500.3113(a) does not contain language regarding an owner’s ‘express or implied
consent or knowledge’ because it examines the legality of the taking from the driver’s
perspective . . . .” Id. at 522. Further, “the unlawful use of a vehicle . . . is not relevant under the
unlawful taking language in MCL 500.3113 . . . .” Rambin v Allstate Ins Co, 495 Mich 316, 331;
852 NW2d 34 (2014).

        Considering the evidence in the light most favorable to plaintiff, there is no genuine issue
of material fact regarding whether plaintiff knew or should have known that she unlawfully took
Joseph’s car. Spectrum Health, 492 Mich at 522. It is undisputed that (1) Joseph had previously
denied plaintiff permission to use the Grand Prix because plaintiff did not have a driver’s license,
and (2) plaintiff admitted she was not given permission from Joseph to use the car that day. The
only testimony plaintiff can point to in an effort to create a genuine issue of material fact on this
issue is that Joseph did not say she could not take the car that day.2 However, plaintiff admitted


2
  Although not argued by either of the parties, it is undisputed that at the time of the accident,
plaintiff did not have a valid driver’s license, contrary to MCL 257.904(1). Pursuant to MCL
257.904(3), because plaintiff did not have a valid driver’s license when she drove Joseph’s car,
plaintiff was engaged in an unlawful act. However, because neither party briefed the issue and
because the language at issue here, in MCL 500.3113(a), specifically relates to “using a motor
vehicle . . . that was taken unlawfully, and the person knew or should have known that the motor
vehicle . . . was taken unlawfully,” we leave open the question as to whether a claimant who,
because they do not possess a valid driver’s license, knows they cannot lawfully operate a motor
vehicle, and therefore has “taken unlawfully the motor vehicle” pursuant to MCL 500.3113. See
MCL 500.3113(a) (emphasis added).


                                                  -3-
she did not ask Joseph for permission—so how could Joseph grant or deny her permission—and
also admitted that the standing rule was plaintiff could not use the car because she did not have a
license. And, although plaintiff used the car approximately once a month for short trips, that was
with plaintiff’s permission. In light of these undisputed facts, there is no genuine issue of
material fact that plaintiff knew or should have known that she unlawfully took Joseph’s car.

        Our dissenting colleague concludes that there is a genuine issue of material fact regarding
whether plaintiff had the requisite mens rea to commit the offense of joyriding, i.e., whether she
violated MCL 500.3113(a), because looking at plaintiff’s3 testimony in a light most favorable to
her, there is a question as to whether she believed that the taking of the vehicle on the day of the
accident was wrongful. We respectfully disagree, because plaintiff’s and Joseph’s consistent and
binding deposition testimony establishes that plaintiff knew or should have known that taking the
vehicle on the day of the accident was unlawful, and no reasonable juror could conclude
otherwise.

       Looking first to plaintiff’s deposition testimony, she unequivocally testified on at least
two occasions that Joseph—the owner of the car—told plaintiff that she was not permitted to use
the vehicle:

              Q. And according to your application for benefits, you have been
       previously denied permission to use the vehicle; is that correct?

               A. Well, yes.

               Q. And that’s because you didn’t have your license?

               A. Yeah.

              Q. And any other reason why your daughter denied you permission to use
       your vehicle or to use her vehicle?

               A. Well, she just don’t let me use it.

Soon after that testimony, plaintiff was asked the same question again, and again provided the
same answer:


3
  Our dissenting colleague indicates that she is only considering plaintiff’s testimony, and not
Joseph’s testimony (the owner of the car) or any other evidence because any conflicts in the
testimony must be resolved in plaintiff’s favor. It is certainly true that any direct conflict
between plaintiff’s testimony and another witness’s testimony on material issues would create a
genuine issue of material fact, but it is likewise true that in reviewing the grant of a motion for
summary disposition under MCR 2.116(C)(10), we must consider all of the affidavits, pleadings,
depositions, and other evidence submitted by the parties in support of or in opposition to the
motion. MCR 2.116(G)(5). And here, Joseph’s testimony is not inconsistent with plaintiff, and
in fact reinforces plaintiff’s own testimony.


                                                -4-
              Q. And she – and it was made clear to you that she didn’t want you to use
       the vehicle?

               A. Yes.

And at another point in her deposition, plaintiff again testified that Joseph had previously told
her that she could not use the vehicle:

              Q. Okay. And your mom (sic – daughter) had told you in the past that
       you cannot use – or use her vehicle; is that correct?

               A. Well, yeah.

Thus, plaintiff’s own testimony confirms that Joseph did not allow her to use the vehicle because
she did not have a license and because, “well, she just [doesn’t] let [her] use it.”

        Relative to the day of the accident, plaintiff also testified that she did not have permission
to use the vehicle. As with the testimony set forth above, plaintiff repeatedly admitted that she
was not permitted to use the car on the day of the accident:

               Q. Okay. And your daughter had testified that on the day of the incident
       that you didn’t have permission to use the vehicle; is that correct?

               A. Well, no.

               Q. Okay.

               A. And I didn’t have permission.

               Q. And you did not have permission to use it?

               A. No, but I had mentioned that my grandson wanted to leave and she
       didn’t say yes or no.

       At another point in her deposition, plaintiff was again asked this question and again
unequivocally testified that she did not have permission to use the vehicle on the day of the
accident:

              Q. Okay. And so you would agree that, according to your daughter, that
       you didn’t have permission to use her - -

               A. No, I did not.

               Q. - - vehicle?

               A. I didn’t and I thought it would be okay.

               Q. Oh, but you didn’t have permission that day to use the car, right?


                                                 -5-
               A. No.

Joseph testified consistent with plaintiff’s testimony. She testified, as noted above, that plaintiff
was not allowed to use the vehicle without asking for permission, and that no permission was
granted on the day at issue. Indeed, Joseph testified—and plaintiff did not testify otherwise—
that only very occasionally would permission ever be granted for plaintiff to utilize the vehicle,
in large part because, as plaintiff admits, she did not have a driver’s license. Thus, the
undisputed evidence establishes (1) the existence of a standing order that plaintiff not utilize the
vehicle, and (2) that no permission to be exempt from that standing order was given on the day
of the accident.

        We conclude that the foregoing testimony is clear, unequivocal, and undisputed. Plaintiff
admitted that she was not allowed to use the vehicle in general, and was not allowed to use the
vehicle on the day at issue. She simply assumed that her daughter would allow her to use the
vehicle, but admittedly was never granted permission to do so. As we concluded above, there is
no genuine issue of material fact on either of these issues and summary disposition was proper.

         Finally, we point out that the dissent mischaracterizes our opinion when indicating that
we are making a broad holding that in every case “the absence of a specific and express grant of
permission in a particular instance necessarily establishes that the taking was knowingly illegal.”
We are doing no such thing. Rather, we are merely concluding that the undisputed testimony
provided by plaintiff and Joseph established that there was an agreement that plaintiff not be
allowed use of the car and, as a result of the agreement, plaintiff was unlawfully using the
vehicle on the day of the accident. Additionally, unlike the dissent, we are not concerned with
“how people generally treat their relationships within families or otherwise.” We do not concern
ourselves with matters outside the record, nor do we attempt to somehow discern what
individuals generally do amongst family members with their vehicles. Instead, we merely focus
on the binding testimony submitted by the parties in this case. And, we hope we have made
clear, that testimony warrants the affirmance of the trial court’s order.

       Affirmed. Defendant may tax costs, having prevailed in full. MCR 7.219(A).



                                                              /s/ Christopher M. Murray
                                                              /s/ Stephen L. Borrello




                                                -6-
