            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



KIARA MYERS,                                                       UNPUBLISHED
                                                                   October 17, 2019
               Plaintiff-Appellant,

v                                                                  No. 343325
                                                                   Wayne Circuit Court
ENTERPRISE LEASING COMPANY OF                                      LC No. 16-012240-NF
DETROIT, LLC, doing business as ENTERPRISE
RENT-A-CAR, and MICHIGAN ASSIGNED
CLAIMS PLAN,

               Defendants-Appellees.


Before: FORT HOOD, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        In this first-party no-fault action, plaintiff appeals as of right the trial court’s order
granting summary disposition in favor of defendants, Enterprise Leasing Company of Detroit,
LLC (Enterprise) and the Michigan Assigned Claims Plan (MACP). Plaintiff contends on appeal
that the trial court erred in determining that her use of a rented motor vehicle constituted an
“unlawful taking” under MCL 500.3113(a) such that she was not entitled to personal protection
insurance (PIP) benefits. We disagree and affirm.

        “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). Summary disposition pursuant to MCR 2.116(C)(10) is appropriate where, “there is
no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). A (C)(10) motion considers documentary
evidence and “tests the factual sufficiency of the complaint.” Dalley v Dykema Gossett, 287
Mich App 296, 304 n 3; 788 NW2d 679 (2010), citing Maiden v Rozwood, 461 Mich 109, 120;
597 NW2d 817 (1999). In reviewing the motion, “this Court considers affidavits, pleadings,
depositions, admissions, and documentary evidence filed in the action or submitted by the
parties, in a light most favorable to the party opposing the motion.” Sanders v Perfecting
Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (quotation marks and citation omitted). This
Court also “reviews de novo the interpretation of a statute.” McLean v McElhaney, 289 Mich


                                               -1-
App 592, 596; 798 NW2d 29 (2010), citing Manske v Dep’t of Treasury, 282 Mich App 464,
468; 766 NW2d 300 (2009).

      Plaintiff primarily contends that the facts in evidence do not support a finding that she
unlawfully took the vehicle at issue, or at the very least, that genuine issues of material fact exist.
We disagree.

       MCL 500.3113 provides, in pertinent 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 using a motor vehicle or motorcycle which he or she
       had taken unlawfully, and the person knew or should have known that the motor
       vehicle or motorcycle was taken unlawfully. [MCL 500.3113(a) as amended by
       2014 PA 489.]1

“When applying § 3113(a), the first level of inquiry will always be whether the taking of the
vehicle was unlawful. If the taking was lawful, the inquiry ends because § 3113(a) does not
apply.” Henry Ford Health Sys v Esurance Ins Co, 288 Mich App 593, 599; 808 NW2d 1
(2010) (quotation marks and citation omitted). Where there is an unlawful taking, the next step
in the analysis is to determine whether the claimant “knew or should have known that the motor
vehicle . . . was taken unlawfully.” MCL 500.3113(a). The statute does not apply if, although an
unlawful taking and use occurred, the claimant did not know and did not have reason to know
that the taking was unlawful. MCL 500.3113(a). See also Rambin v Allstate Ins Co, 495 Mich
316, 327, 336; 852 NW2d 34 (2014).

        The parties agree that, central to the resolution of the issue in this case is the application
of our Supreme Court’s decision in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich,
492 Mich 503; 821 NW2d 117 (2012). In Spectrum, our Supreme Court unequivocally held
“that any person who takes a vehicle contrary to a provision of the Michigan Penal Code—
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).” Spectrum, 492 Mich at 509.
Plaintiff makes various arguments as to why Spectrum should not control in this case, including
an argument that this case does not implicate the joyriding statutes. However, plaintiff fails to
explain why the joyriding statutes do not apply, and under the circumstances, it is clear from the
facts in evidence that either statute could have applied.

       MCL 750.413 provides:


1
 MCL 500.3113 has since been amended to add the condition that the claimant must “willingly”
use or operate the vehicle that was unlawfully taken. MCL 500.3113(a) as amended by 2019 PA
21. References to the statute throughout are to the version effective at the time of plaintiff’s
accident.


                                                 -2-
               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, in pertinent part.

               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.

In Spectrum, our Supreme Court noted that both statutes “effectively define[] an unlawful taking
of a vehicle as that which is unauthorized.” Spectrum, 492 Mich at 518. And, with respect to
authorization:

               The “authority” referred to in the joyriding statutes is obviously the
       authority of the owner of the vehicle. Accordingly, for purposes of MCL
       500.3113(a), a vehicle is “unlawfully taken” if it is taken without the authority of
       its owner. See Farmers Ins Exch v Young, 489 Mich 909, 796 NW2d 470 (2011)
       (MARKMAN, J., concurring) (“[MCL 500.3113(a)] requires a threshold
       determination that a vehicle was ‘unlawfully taken’ from its owner.”). [Id. at 518
       n 25 (alteration in original).]

       Specifically within the context of MCL 500.3113(a), our Supreme Court further
described what may constitute an unlawful taking based upon the joyriding statutes:

       The phrase “without authority” along with the terms “take” and “use” all plainly
       have expansive meanings. “Authority” in this context refers to the “right to
       control, command or determine.” Random House Webster's College Dictionary
       (1996). “Take” means “to get into one’s hands or possession by voluntary
       action.” Id. “Use” means “to employ for some purpose.” Id. By themselves,
       these terms all contemplate voluntary and knowing conduct on the part of the
       accused. [People v] Tombs, 472 Mich [446,] 457[; 697 NW2d 494 (2005)].
       [Rambin, 495 Mich at 332.]

“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 . . .
.” Spectrum, 492 Mich at 518.

       It is undisputed that plaintiff took possession of Enterprise’s vehicle and caused it to be
driven away, and what is more, not only did plaintiff take possession of the vehicle with the




                                               -3-
explicit understanding that she was not authorized to drive it,2 but plaintiff caused the vehicle to
be possessed and driven by her unlicensed boyfriend, Demarcus Moore. There is absolutely no
evidence that Moore was authorized nor that plaintiff had any reason to believe that Moore was
authorized by the owner of the vehicle to drive it. Thus, at the very least, plaintiff was a party to
Moore’s unauthorized taking and using of the vehicle contrary to both MCL 750.413 and MCL
750.414, and under Spectrum, that is sufficient to constitute an unlawful taking within the
meaning of MCL 500.3113(a). See MCL 750.413; MCL 750.414; Spectrum, 492 Mich at 527
(“[A]ny person who takes a vehicle contrary to . . . MCL 750.413 and MCL 750.414 . . . has
taken the vehicle unlawfully within the meaning of MCL 500.3113(a).”).

         Plaintiff makes a number of additional arguments attempting to distinguish Spectrum.
Plaintiff contends that Spectrum should be limited to its facts, noting that the case involved two
consolidated cases wherein the no-fault claimants and vehicle owners were family members.
Plaintiff argues that Spectrum effectively held for the first time that family members that take a
vehicle without permission from the owner may be precluded from recovering benefits under
MCL 500.3113(a), and that Spectrum’s holding should be limited to that factual scenario.
However, it simply does not logically follow that, because Spectrum involved family joyriding,
the explicit and very clear rule that came from the case can only apply to other cases that involve
family joyriding. Our Supreme Court broadly held in Spectrum that individuals that take
vehicles contrary to provisions of the Michigan Penal Code have also taken the vehicles
unlawfully within the meaning of MCL 500.3113(a). Spectrum, 492 Mich at 537. Plaintiff has
given no reason why that rule should not apply in cases in which the no-fault claimant and the
owner of the unlawfully taken vehicle are not family members.

       Plaintiff also argues that, in Spectrum, the claimant was “expressly forbidden” from using
the vehicle that was involved in the accident by the vehicle’s owner, and that no such express
prohibition exists in this case. Plaintiff does not consider the rental agreement—which explicitly
provided that only plaintiff’s mother was authorized to drive the vehicle—as an express
prohibition, instead contending that reliance on the rental agreement would make this case about
a contract dispute between Enterprise and plaintiff’s mother. Plaintiff contends that a private
contract dispute between Enterprise and a third party cannot interfere with plaintiff’s rights under
the no-fault act. This argument is somewhat confusing. Plaintiff does not fully explain why a
contract between Enterprise and plaintiff’s mother cannot serve as notice to plaintiff that she was
prohibited from driving Enterprise’s vehicle, particularly where plaintiff testified that she was
aware of the contract and aware that it only authorized her mother to drive the vehicle.

        Plaintiff quotes Cowan v Strecker, 394 Mich 110, 115; 229 NW2d 302 (1975), noting
that rental contracts cannot serve to make a taking unlawful because “[w]hatever limitations” an
owner places on a vehicle become meaningless “once the owner has turned his keys over to
another.” However, while plaintiff characterizes Cowan as a “directly on-point opinion,” we
note that the case is referencing the owner’s civil liability act, MCL 257.401. Id. at 112.


2
 Plaintiff testified at her deposition that she understood that only her mother was authorized to
drive the vehicle.


                                                -4-
Forgetting that Spectrum expressly disavowed “analogizing the owner’s liability statute to the
no-fault act,” Spectrum, 492 Mich at 522, Cowan is speaking to the circumstances in which an
owner can be said to have “consented” to a taking, and not in which a driver can be said to have
“unlawfully taken,” see id. (explaining that, unlike the owner’s liability statute, which examines
whether an owner consented to a taking from the owner’s perspective, the no-fault act requires
examining “the legality of the taking from the driver’s perspective”).

        In short, this case is not about application of the owner’s liability statute; it is about the
no-fault act. The no-fault act excludes from coverage claimants that are injured after taking and
using a vehicle that they know was taken unlawfully. MCL 500.3113(a). Whether a prohibition
from taking a vehicle comes from a statement from a father to a son—as in Spectrum—or from a
provision in a rental agreement, as in this case, plaintiff has provided no relevant authority to
support the idea that a contract provision cannot serve as an express prohibition against taking a
vehicle for the purposes of MCL 500.3113(a).3 And, to the extent that plaintiff now argues that
she was unaware of the provision in the rental agreement that prohibited her from taking the
vehicle, we note plaintiff’s explicit statement at her deposition that she understood that only her
mother was authorized to drive the vehicle. In light of that statement, plaintiff simply cannot
argue that she did not know or did not have reason to know that the taking was unlawful.

        Finally, plaintiff relies on Monaco v Home Owners Ins Co, 317 Mich App 738; 896
NW2d 32 (2016), to form the basis of her argument that, in this case, the trial court effectively
gutted the meaning of “unlawfully taken” and replaced that phrase with “unlawfully used.” The
suggestion is that the trial court based its ruling on the fact that Moore was not legally permitted
to drive, and that the trial court equated Moore’s unlawful “use” of the vehicle with the unlawful
“taking” required by the no-fault act. Plaintiff contends that this was an impermissible
broadening of the no-fault statute. We disagree with plaintiff’s characterization of the trial
court’s ruling, but regardless, we also fail to understand how Monaco applies.

        In Monaco, a 15-year-old driver that was not legally authorized to drive by herself was
injured in an accident and sought no-fault benefits. Id. at 744. The issue in that case became
whether the driver had permission from the owner of the vehicle—her mother—to be driving the


3
 Enterprise’s rental agreement is clear that only plaintiff’s mother was authorized to drive the
vehicle:
       4. Limits on Use and Termination of Right to Use

       a. Renter agrees to the following limits on use:

       (1) Vehicle shall not be driven by any person other than Renter or [Additional
       Authorized Drivers] without Owner’s prior written consent.

Plaintiff did not assert below nor has she asserted on appeal that either plaintiff or Moore were
listed as additional authorized drivers.




                                                 -5-
vehicle at the time of the accident. Id. A jury determined that the driver did have permission,
and based upon that conclusion, this Court held that the driver did not unlawfully take the
vehicle within the meaning of MCL 500.3113(a). Id. at 748-749. In making its ruling, this Court
noted that that there is a difference between “unlawfully taking a motor vehicle and unlawfully
using a vehicle,” and only the former is relevant for the purposes of determining whether an
unlawful taking occurred under MCL 500.3113(a). Id. at 749 (emphasis added), citing Rambin,
495 Mich at 331.4 The case at hand is not one in which the claimant was given permission from
the owner of the vehicle to take the vehicle, and quite contrarily, the plaintiff in this case
explicitly understood that she did not have permission.

         Accordingly, this case is not similar to Monaco. Our opinion is not based on the fact that
Moore did not have a driver’s license and was not legally permitted to drive the vehicle; it is
based on the fact that neither Moore nor plaintiff had permission from the owner of the vehicle to
take that vehicle. The evidence in this case leaves no doubt that an unlawful taking occurred,
and the limited relevance of the fact that plaintiff knew Moore to be legally unauthorized to drive
is that it shows that she had no reason to believe that the taking and use of Enterprise’s vehicle
was lawful. See Spectrum, 492 Mich at 518 n 25. In short, the evidence establishes that plaintiff
unlawfully took and used the motor vehicle in question, and that she had no reason to believe
that the taking was lawful. MCL 500.3113(a) thus applies to preclude plaintiff from recovering
PIP benefits under the no-fault act. Having concluded that plaintiff is not entitled to PIP
benefits, we need not address the alternative grounds for partial affirmation raised in the
MACP’s brief on appeal.

       Affirmed.




                                                            /s/ Karen M. Fort Hood
                                                            /s/ David H. Sawyer




4
  The Court also noted that whether an unlawful use occurred may be relevant to the second part
of the inquiry under MCL 500.3113(a): whether the claimant did not know or did not have
reason to know that the taking was unlawful. Monaco, 317 Mich App at 749. Indeed, our
Supreme Court noted in Spectrum that “driving while legally unable may have implications
under MCL 500.3113(a) for a person who has taken a vehicle unlawfully because as a matter of
law, one cannot reasonably believe that he or she is entitled to use a vehicle when the person
knows that he or she is unable to legally operate the vehicle.” Spectrum, 492 Mich at 518 n 25
(quotation marks and citation omitted).


                                                -6-
