            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



ANESTHESIA SERVICES AFFILIATES,                                    UNPUBLISHED
MICHIGAN AMBULATORY SURGICAL                                       November 21, 2019
CENTER, and SPINE SPECIALISTS OF
MICHIGAN, PC,

              Plaintiffs-Appellants,

v                                                                  No. 344317
                                                                   Wayne Circuit Court
CITY OF DETROIT,                                                   LC No. 17-005448-NF

              Defendant-Appellee.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

        Plaintiffs appeal as of right an order granting defendant summary disposition in this no-
fault action. We reverse and remand.

       This case arises from a bus accident that occurred in Detroit, Michigan in which Amber
Chaplain sustained injuries. Chaplain’s domicile is at issue. Chaplain signed an affidavit of no
motor vehicle insurance stating that she lived at “19698 Spencer” and testified as to the same.
The house located at 19698 Spencer Street, Detroit Michigan 48234 is owned by Chaplain’s
aunt, Carol Chatters. Chatters testified that Chaplain did not live with her on the date of the
accident. Chatters also testified that she had automobile insurance on the date of the accident.

       Defendant filed a motion for summary disposition arguing that Chatters’s insurer, rather
than defendant, was the insurer of highest priority because Chaplain was domiciled with Chatters
when the accident occurred. Plaintiffs contended that there was a question of fact on the issue
and that, regardless, defendant could not assert priority as a defense against an injured party.
The trial court agreed with defendant and granted its motion for summary disposition. This
appeal followed.

       Plaintiffs argue that there was a genuine issue of material fact on the issue of whether
Chaplain was domiciled with Chatters, and that, even if defendant was not the insurer of highest



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priority under the no-fault act, defendant could not assert priority as a defense. We agree that
there is a genuine issue of material fact on the issue of Chaplain’s domicile.

       We review de novo a lower court’s decision on a motion for summary disposition under
MCR 2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). A motion
brought under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” Spiek v Dept
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The moving party must identify the
matters that have no disputed factual issues, and has the initial burden of supporting its position
with documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The party opposing the motion must then establish by evidentiary materials that a
genuine issue of disputed fact exists. Id. at 362-363. After considering the documentary
evidence submitted in the light most favorable to the nonmoving party, the court determines
whether a genuine issue of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App
618, 621; 689 NW2d 506 (2004). “Courts are liberal in finding a factual dispute sufficient to
withstand summary disposition.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369
(2018) (quotation marks and citation omitted).

                                           I. DOMICILE

         “[T]he no-fault act does not define the term ‘domiciled.’ ” Grange Ins Co of Mich v
Lawrence, 494 Mich 475, 492; 835 NW2d 363 (2013). “The unambiguous language of MCL
500.3114(1) simply states that ‘a personal protection insurance policy . . . 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 house-hold . . . .’ ” Id. at 492-493. Chatters unequivocally testified that
she had an automobile insurance policy through Nationwide at the time of the accident. While
plaintiffs argue this is not sufficient to establish that Chatters actually had insurance, plaintiffs
fail to point to anything in the record to support this argument. Thus, the fact that Chatters had
automobile insurance at the time of the accident was established.

        “A domicile determination is generally a question of fact; however, where the underlying
material facts are not in dispute, the determination of domicile is a question of law for the circuit
court.” Id. at 490. “Michigan courts have defined ‘domicile’ to mean the place where a person
has his true, fixed, permanent home, and principal establishment, and to which, whenever he is
absent, he has the intention of returning.” Id. at 493 (quotation marks and citation omitted).
“[A] person may have only one domicile, but more than one residence.” Id. at 494.

        Michigan courts apply a “multi-factor test . . . in which no one factor is determinative” to
determine domicile. Id. at 497. As noted in Lawrence, 494 Mich at 497, Michigan courts apply
the factors set forth in Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477; 274 NW2d 373
(1979), and Dairyland Ins Co v Auto Owners Inc Co, 123 Mich App 675; 333 NW2d 322 (1983).
In Workman, our Supreme Court articulated four factors to be considered when determining a
person’s domicile:

       (1) the subjective or declared intent of the person of remaining, either
       permanently or for an indefinite or unlimited length of time, in the place he
       contends is his “domicile” or “household”; (2) the formality or informality of the
       relationship between the person and the members of the household; (3) whether

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       the place where the person lives is in the same house, within the same curtilage or
       upon the same premises; (4) the existence of another place of lodging by the
       person alleging “residence” or “domicile” in the household. [Workman, 404 Mich
       at 496-497 (internal citations omitted).]

This Court has also set forth the following factors, on the basis of Dairyland, to determine a
person’s domicile:
       (1) the person’s mailing address; (2) whether the person maintains possessions at
       the insured’s home; (3) whether the insured’s address appears on the person’s
       driver’s license and other documents; (4) whether a bedroom is maintained for the
       person at the insured’s home; and (5) whether the person is dependent upon the
       insured for financial support or assistance. [Williams v State Farm Mut Auto Ins
       Co, 202 Mich App 491, 494-495; 509 NW2d 821 (1993), citing Dobson v Maki,
       184 Mich App 244, 252; 457 NW2d 132 (1990), and Dairyland, 123 Mich App at
       682.]

       In regard to the first Workman factor, the subjective or declared intent of the person to
remain at the home she contends to be her domicile or household, Chaplain testified that at the
time of the accident she lived with Chatters. However, Chaplain also testified that she stayed
overnight at her boyfriend’s house during this time period. Thus, it is not clear whether
Chaplain’s intent was to remain at Chatters’s home.

        The second Workman factor, which considers the formality of the relationship between
the person and other members of the household, is inconclusive. Chatters is Chaplain’s aunt and
the two had a personal relationship. However, neither Chatters’s nor Chaplain’s testimony
suggest that there was any sort of formal arrangement in regards to Chaplain living at the
Spencer Street house. For example, there was no evidence that Chaplain paid Chatters rent.

        The third Workman factor, whether the place where the person lives is in the same house,
within the same curtilage or upon the same premises, did not weigh for or against a finding that
Chaplain was domiciled with Chatters because there was conflicting evidence regarding
Chaplain’s residence. Chaplain testified that she lived with Chatters at 19698 Spencer. Chaplain
also provided the Spencer Street address on her affidavit of no motor vehicle insurance and
identification card. However, Chatters testified that Chaplain did not live with her at the Spencer
Street address at the time of the accident. Chatters further testified that Chaplain moved out of
the Spencer Street house after the death of Chaplain’s grandmother in 2015. Chatters believed
that Chaplain lived with her friend, Crystal Jones, at the time of the accident. Thus, there is
conflicting evidence regarding Chaplain’s residence at the time of the accident.

         The fourth Workman factor, the existence of another place of lodging by the person
alleging residence or domicile in the household, also did not weigh for or against a finding that
Chaplain was domiciled with Chatters because there was evidence presented that Chaplain had
other places of lodging. Chaplain testified that she “went back and forth” between her
boyfriend’s house and the Spencer Street house around the time of the accident. Chatters
testified that Chaplain lived with Jones at the time of the accident. Thus, there is evidence that
Chaplain had one or two other places of lodging in addition to Chatters’s home.

                                                -3-
        The first Dairyland factor, a person’s mailing address, supports the conclusion that
Chaplain was domiciled with Chatters. Chatters testified that Chaplain received mail at the
Spencer Street house. The second Dairyland factor, whether the person maintains possessions at
the insured’s home, also supports the conclusion that Chaplain was domiciled with Chatters.
Chatters testified that Chaplain kept some personal items in a bedroom at the Spencer Street
home. The third Dairyland factor, whether the insured’s address is listed on the individual’s
driver’s license and other documents, further supports the conclusion that Chaplain was
domiciled with Chatters. Chaplain’s state identification card listed the Spencer Street address.

        The fourth Dairyland factor, whether a bedroom is maintained for the person at the
insured’s home, is inconclusive. Chatters testified that the Spencer Street house had two guest
rooms and that most guests stayed in a different room than the bedroom Chaplain used.
However, Chaplain’s sister also stayed in the guest bedroom Chaplain used when she visited
Chatters. Thus, it is not clear whether a bedroom was maintained for Chaplain at the Spencer
Street home or whether Chaplain simply stayed in the same guest room whenever she stayed at
the home. The fifth Dairyland factor, whether the person is dependent upon the insured for
financial support or assistance, weighs against finding that Chaplain was domiciled with
Chatters. There is no evidence that Chaplain was dependent on Chatters for financial support or
assistance.

        Accordingly, some of the factors support the trial court’s determination that Chaplain was
domiciled with Chatters at the time of the accident while others do not. Therefore, there is a
genuine issue of material fact as to whether Chaplain was domiciled with Chatters at the time of
the accident; this is particularly true because domicile is a question of fact for the jury when the
underlying facts are in dispute. See Lawrence, 494 Mich at 490.

                                    II. PRIORITY DEFENSE

         As there is a question of fact regarding Chaplain’s domicile, this Court need not address
plaintiffs’ argument regarding defendant’s ability to assert a priority defense. However, we note
and reject plaintiffs’ argument that, even if defendant is not the highest priority insurer under the
act, it cannot raise priority as a defense against plaintiffs because Chaplain could not now file a
claim for no-fault benefits with Chatters’s insurance company. Plaintiffs are correct that, under
MCL 500.3145(1), claims for no-fault benefits must be filed within one year of the date of the
accident. But plaintiffs’ interpretation of the no-fault act would defeat the purpose of the priority
provision. According to plaintiffs’ interpretation, a plaintiff could file a claim for no-fault
benefits against any insurer no matter where they fall in order of priority and, if one year has
passed, require that insurer to provide no-fault benefits to the plaintiff even though the insurer
was never first in order of priority. This is untenable.
        And plaintiffs have provided no persuasive authority to convince us otherwise. Instead,
plaintiffs rely on Borgess Med Ctr v Resto, 273 Mich App 558; 730 NW2d 738 (2007), opinion
vacated and judgment aff’d 482 Mich 946 (2008). But our Supreme Court vacated that opinion
and stated that it was affirming “the judgment of the Court of Appeals for the reasons stated in
the concurring opinion.” Borgess Med Ctr, 482 Mich at 946. The concurring opinion stated:
       I write separately simply to state that I do not rely on a statutory distinction
       between “a person suffering accidental bodily injury” and a claimant under MCL

                                                -4-
       500.3114(4). Defendant indisputably insured the owner of the occupied vehicle,
       and no insurer in a higher priority was identified. [Borgess Med Ctr, 273 Mich
       App at 585 (WHITE, J., concurring).]

It is not clear whether our Supreme Court affirmed the judgment on the basis of the first or
second line of the concurring opinion, or both. What is clear, however, is that the court vacated
the majority opinion, meaning plaintiffs cannot rely on it as precedential. See Straman v Lewis,
220 Mich App 448, 451-452; 559 NW2d 405 (1996).

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.




                                                           /s/ Thomas C. Cameron
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Douglas B. Shapiro




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