                           STATE OF MICHIGAN

                             COURT OF APPEALS


TRACY C BRICKEY and BRANDY BRICKEY,                                    FOR PUBLICATION
                                                                       April 17, 2018
                Plaintiffs-Appellants,                                 9:10 a.m.

v                                                                      No. 337448
                                                                       Lenawee Circuit Court
VINCENT LAVON MCCARVER and CR                                          LC No. 16-005615-NI
MOTORS OF ADRIAN, INC.,

                Defendants-Appellees.


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

BOONSTRA, P.J.

        In this third-party no-fault action, plaintiffs appeal by right the trial court’s order granting
summary disposition in favor of defendants under MCR 2.116(C)(8). We reverse and remand
for further proceedings.

                    I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiff Tracy Brickey (Tracy) was operating his motorcycle on US 223 when he was
struck by a vehicle driven by defendant Vincent McCarver (McCarver). Tracy was severely
injured.

       Plaintiffs filed suit against defendants, arguing that (1) McCarver negligently operated a
vehicle and caused injury to Tracy, (2) CR Motors was liable for McCarver’s negligence under
Michigan’s owner’s liability statute and the doctrine of negligent entrustment, and (3)
McCarver’s negligence additionally resulted in plaintiff Brandy Brickey’s loss of consortium.
Defendants answered the complaint and also moved for summary disposition under
MCR 2.116(C)(8) and (10). Defendants contended in their motion that the motorcycle Tracy
was operating at the time of the accident was uninsured, and that plaintiffs accordingly were
precluded from recovery under MCL 500.3135(2)(c). The trial court agreed, relying on Braden v
Spencer, 100 Mich App 523; 299 NW2d 65 (1980), and granted summary disposition in favor of
defendants under MCR 2.116(C)(8) (failure to state a claim on which relief may be granted). It
subsequently denied plaintiffs’ motion for reconsideration. This appeal followed.




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                                 II. STANDARD OF REVIEW

        “The trial court’s ruling on a motion for summary disposition is reviewed de novo on
appeal.” ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich App 336, 339; 830 NW2d
428 (2012), citing Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). “A motion
brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the
pleadings.” Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010), citing
Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). Summary disposition
under MCR 2.116(C)(8) is appropriately granted if the opposing party has failed to state a claim
on which relief can be granted. Id. “When deciding a motion under (C)(8), this Court accepts all
well-pleaded factual allegations as true and construes them in the light most favorable to the
nonmoving party.” Dalley, 287 Mich App at 304-305, citing Maiden v Rozwood, 461 Mich 109,
119; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(8) “should be granted only when
the claim is so clearly unenforceable as a matter of law that no factual development could
possibly justify a right of recovery.” Kuhn v Secretary of State, 228 Mich App 319, 324; 579
NW2d 101 (1998), citing Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26
(1992).

      We also review de novo questions of statutory interpretation. McLean v McElhaney, 289
Mich App 592, 596; 798 NW2d 29 (2010).

                                         III. ANALYSIS

       Plaintiffs argue that the trial court erred by granting summary disposition in favor of
defendants because MCL 500.3135(2)(c), by its plain language, only applies to uninsured “motor
vehicles,” as opposed to motorcycles, and therefore does not limit plaintiffs’ right to seek
damages in tort. We agree.

        “The primary rule of statutory interpretation is that we are to effect the intent of the
Legislature.” Stanton v City of Battle Creek, 466 Mich 611, 615; 647 NW2d 508 (2002), citing
Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). “ ‘To do so, we
begin with the language of the statute, ascertaining the intent that may reasonably be inferred
from its language.’ ” Odom v Wayne Co, 482 Mich 459, 467; 760 NW2d 217 (2008), quoting
Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007). “Our primary focus” in
statutory interpretation “is the language of the statute under review.” See People v Harris, 499
Mich 332, 345; 885 NW2d 832 (2016). If the language is unambiguous, the intent of the
Legislature is clear and “ ‘judicial construction is neither necessary nor permitted.’ ” Odom, 482
Mich at 467, quoting Lash, 479 Mich at 187.

       The words of the statute provide the best evidence of legislative intent and the policy
choices made by the Legislature. White v City of Ann Arbor, 406 Mich 554, 562; 281 NW2d 283
(1979). Our role as members of the judiciary is not to second-guess those policy decisions or to
change the words of a statute in order to reach a different result. In fact, a “clear and
unambiguous statute leaves no room for judicial construction or interpretation.” Coleman v
Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). Therefore, we start by examining the words
of the statute, which “should be interpreted on the basis of their ordinary meaning and the
context within which they are used in the statute.” People v Zajaczkowski, 493 Mich 6, 13; 825

                                                -2-
NW2d 554 (2012); Harris, 499 Mich at 435. See also Spectrum Health Hospitals v Farm
Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012).

       “Any issues relating to the soundness of the policy underlying the statute or its practical
ramifications are properly directed to the Legislature.” Maier v Gen Tel Co of Mich, 247 Mich
App 655, 664; 637 NW2d 263 (2001). “[W]e may not read into the statute what is not within the
Legislature’s intent as derived from the language of the statute.” Robinson v City of Lansing,
486 Mich 1, 15; 782 NW2d 171 (2010) (quotation marks and citation omitted).

       MCL 500.3135(2)(c) provides in relevant part:

       (2) For a cause of action for damages pursuant to subsection (1) filed on or after
       July 26, 1996, all of the following apply:

                                              * * *

       (c) Damages shall not be assessed in favor of a party who was operating his or her
       own vehicle at the time the injury occurred and did not have in effect for that
       motor vehicle the security required by section 3101 at the time the injury
       occurred.

Section 3101 in turn provides: “(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, property protection insurance, and residual liability insurance.” MCL 500.3101(1).
“Motor vehicle” for the purposes of Chapter 31 of the insurance code of 1956 is defined as 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). The
definition of motor vehicle “does not include any of the following: (i) A motorcycle.”
MCL 500.3101(2)(i)(i).

        Inasmuch as the statute explicitly excludes motorcycles from the definition of “motor
vehicle,” and therefore from the preclusive effect of MCL 500.3135(2)(c), the plain language of
the statute unambiguously refutes the trial court’s statutory interpretation. See Robinson, 486
Mich at 15. Moreover, the trial court errantly relied upon Braden, 100 Mich App at 529, for the
proposition that, despite the explicit exclusion of motorcycles from the definition of motor
vehicle, uninsured operators of motorcycles are also subject to the proscriptions of
MCL 500.3135(2)(c). Braden is not only not binding on this Court, MCR 7.215(J)(1), but is
inapposite factually and legally. In Braden, the plaintiff did not sue to recover noneconomic
loss, as in this case, but instead filed a complaint “for property damage to his motorcycle
resulting when it collided with an automobile owned and operated by [the] defendant.” Braden,
100 Mich App at 525. The trial court held that, under MCL 500.3135, the defendant was not
shielded from tort liability because the plaintiff was operating a motorcycle at the time of the
accident. Id. On appeal, this Court reversed, holding that “[t]he exclusion of motorcycles from
the [no-fault act’s] definition of motor vehicles does not illustrate a legislative intent to exempt
motorcyclists from the effect of the abolition of tort liability by § 3135.” Id. at 529 (emphasis
added). Defendant now contends that the above language necessarily means that the term
“motorcycle” must be read into every provision of MCL 500.3135.

                                                -3-
        Importantly, however, the statute at issue in Braden was quite different from the one that
exists today. See MCL 500.3135, as amended by 1979 PA 147. In Braden, the Court was solely
concerned with the application of what is now MCL 500.3135(3).1 See Braden, 100 Mich App
at 525-526. Subsection (2)(c) was not added to the statute until 1995—15 years after Braden.
See MCL 500.3135, as amended by 1995 PA 222.

         Subsection (3) provides, in pertinent part: “(3) Notwithstanding any other provision of
law, tort liability arising from the ownership, maintenance, or use within this state of a motor
vehicle with respect to which the security required by section 3101 was in effect is
abolished . . . .” MCL 500.3135(3) (emphasis added). In other words, and unlike subsection
(2)(c), subsection (3) deals with a party’s exposure to tort liability as opposed to a party’s right to
recover damages, and extinguishes tort liability for noneconomic losses for drivers of motor
vehicles who carry proper insurance, apart from the exceptions found in MCL 500.3135(1).
Subsection (3) has nothing to do with a plaintiff’s right to recover damages, and instead has
everything to do with a defendant’s liability, irrespective of the plaintiff or the plaintiff’s mode
of travel. See MCL 500.3135(3). Accordingly, it was irrelevant in Braden that the plaintiff was
a motorcyclist, because the defendant was in any event immune from tort liability for the type of
damages sought by the plaintiff. Braden, 100 Mich App at 529. Consequently, even if we were
bound by Braden, our decision would not conflict with its essential holding. See Braden, 100
Mich App at 529.

       In essence, defendants ask this Court to add language into subsection (2)(c), such that it
might read: “Damages shall not be assessed in favor of a party who was operating his or her own
vehicle at the time the injury occurred and did not have in effect for that motor vehicle [or
motorcycle] the security required by section 3101 [or 3103] at the time the injury occurred.”
MCL 500.3135(2)(c) (emphasis added). To read the statute in such a manner would require an
impermissible judicial construction of an unambiguous statute. See Odom, 482 Mich at 467,
quoting Lash, 479 Mich at 187. We decline defendants’ invitation to so interpret an
unambiguous statutory provision.2

       Notwithstanding the above, defendants contend that subsection (2)(c) must apply to
motorcycles because, although not required by section 3101, motorcycles are still required to be
insured under MCL 500.3103, and public policy dictates that any operator of a motorcycle —like
a motor vehicle—who has failed to obtain insurance coverage as required by law, should be


1
  At the time, subsection (3) was codified as Subsection (2). MCL 500.3135(2), as amended by
1972 PA 294; MCL 500.3135(3). The relevant language analyzed in Braden, however, is
verbatim to the language of subsection (3) today. See MCL 500.3135(3); Braden, 100 Mich App
at 526.
2
  Even assuming arguendo that Braden did support defendants’ reading of MCL 500.3135(2), we
are mindful that clear statutory language must prevail when “caselaw clearly misinterprets the
statutory scheme at issue.” Covenant Med Center, Inc v State Farm Mut Auto Ins Co, 500 Mich
191, 201; 895 NW2d 490 (2017); see also W.A. Foote v Mich Assigned Claims Plan, 321 Mich
App 159, 190 n 16; ___ NW2d ___ (2017).


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barred from recovering tort damages. Indeed, section 3103 provides, in pertinent part: “(1) An
owner or registrant of a motorcycle shall provide security against loss resulting from liability
imposed by law for property damage, bodily injury, or death suffered by a person arising out of
the ownership, maintenance, or use of that motorcycle.” MCL 500.3103(1).

        However, it is for the Legislature, not this Court, to address the policy-making
considerations that are inherent in statutory law-making. See Maier, 247 Mich App at 664; W.A.
Foote v Mich Assigned Claims Plan, 321 Mich App 159, 190, n 16; ___ NW2d ___ (2017).
Moreover, defendants’ reliance on section 3103 hinders, rather than helps, their argument. The
plain language of section 3103 demonstrates that when the Legislature intends for corollary rules
to exist as between motor vehicles and motorcycles, it explicitly enacts those rules. Therefore,
for example, section 3101 creates a requirement that certain motor vehicles are insured, and
section 3103 creates a similar requirement for motorcycles.                See MCL 500.3101;
MCL 500.3103. Similarly, MCL 500.3113, which limits the entitlement of certain persons to
recover personal injury protection benefits, contains the exact language that defendants would
have this Court to read into MCL 500.3135(2)(c):

       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:

                                             * * *

           (b) The person was the owner or registrant of a motor vehicle or motorcycle
           involved in the accident with respect to which the security required by section
           3101 or 3103 was not in effect. [MCL 500.3113(b) (emphasis added).]

The Legislature’s omission of a term in one portion of a statute that is contained in another
should be construed as intentional. Michigan v McQueen, 293 Mich App 644, 672; 811 NW2d
513 (2011). Similarly, the Legislature’s use of different terms suggests different meanings. See
United States Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing),
484 Mich 1, 14; 795 NW2d 101 (2009).

       The language of MCL 500.3135(2)(c) is unambiguous: individuals injured while
operating a motor vehicle that is both owned by them and uninsured in violation of
MCL 500.3101 are not entitled to recover damages. MCL 500.3135(2)(c). Motorcycles are not
motor vehicles under the no-fault act.               MCL 500.3102(2)(i)(i).      Accordingly,
MCL 500.3135(2)(c) does not limit the right of motorcyclists to recover damages.

        Plaintiffs contend in the alternative that, even assuming that subsection (2)(c) applies to
motorcyclists, the trial court nonetheless erred by dismissing all of plaintiffs’ claims because
subsection (2)(c) only limits actions for noneconomic damages. Having held that subsection
(2)(c) does not apply to motorcyclists, however, we need not reach that question, which in any
event was not raised below until reconsideration. See Vushaj v Farm Bureau Gen Ins Co, 284
Mich App 513, 519; 773 NW2d 758 (2009).



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



                                                         /s/ Mark T. Boonstra
                                                         /s/ Jane M. Beckering
                                                         /s/ Amy Ronayne Krause




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