            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KIARA MYERS,                                                         UNPUBLISHED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.

SHAPIRO, J. (dissenting).

        I respectfully dissent. The question before us is whether defendants have shown—
beyond a question of fact—that when plaintiff used her mother’s rental car she violated MCL
500.3113(a). That statute provides that a person using a car when not legally entitled to do so
loses PIP coverage if they “knew or should have known that the motor vehicle or motorcycle was
taken unlawfully.” The majority opinion, however, largely ignores this requirement and,
although this is a (C)(10) motion, gives little attention to the evidence presented, all of which
supports plaintiff. Indeed, its decision to affirm dismissal rests wholly on a single sentence in
plaintiff’s deposition the plain language of which undermines, rather than supports, the
majority’s conclusion.

                                      I. APPLICABLE LAW

        There are three relevant statutes: MCL 500.3113(a), MCL 750.413 and MCL 750.414.
The first is the pertinent no-fault statute and the other two are statutes criminalizing “joyriding.”
The latter are relevant because in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich,
492 Mich 503, 509; 821 NW2d 117 (2012), the Supreme Court held that a person who violates
one these criminal statutes commits an unlawful taking in violation of MCL 500.3113(a).




                                                -1-
        MCL 500.3113(a) prevents a person from recovering PIP benefits only when the person
“knew or should have known that the motor vehicle or motorcycle was taken unlawfully.”
Similarly, the caselaw is clear that MCL 750.413 and MCL 750.414 have two requirements: first
that the use of the vehicle was not lawful and second, that the person using it knew that the
vehicle was taken unlawfully.1 This principle was established in 1921 in People v Murnane, 213
Mich 205; 182 NW2d 62 (1921), was reaffirmed in 1973 and again reaffirmed in the Supreme
Court’s 2014 decision in Rambin v Allstate Ins Co, 495 Mich 316; 852 NW2d 34 (2014).

      Murnane involved a challenge to the jury instructions for the predecessor statute to MCL
750.413. The Court affirmed the defendant’s conviction, holding:

       [T]he jury were instructed, in effect, that the respondent need not have physically
       participated in the unlawful taking possession of the car, but if satisfied that he
       was assisting in driving it away, knowing it to have been unlawfully taken, they
       would be justified in his conviction. We think this a fair construction of the
       statute. [Murnane, 213 Mich at 209 (emphasis added).]


This principle was reaffirmed in People v Andrews, 45 Mich App 354, 359; 206 NW2d 517
(1973), where we held with respect to MCL 750.413:

       While the ‘done wilfully’ element of the offense of driving away an automobile
       does not require the people to establish an intent permanently to deprive the
       owner of possession of the automobile, guilty knowledge is an element of the
       offense. [Citing Murnane, 213 Mich at 209 (emphasis added).]

        The requirement of guilty knowledge was recently again reaffirmed in Rambin, 495 Mich
316, this time in a case involving MCL 750.414. The opinion in that case speaks to exactly the
question now before us, and it rejected the proposition that Spectrum all but did away with the
scienter requirement. To the contrary, the Rambin Court stated:

       We hold that MCL 750.414 is not a strict liability crime and that it contains a
       mens rea element that the taker must intend to take a vehicle “without authority.”
       [Id. at 320.]

      Thus, it is not sufficient that the plaintiff knowingly took a car and that her use was
“unlawful”—it must be demonstrated that she knew or should have known that it was unlawful.
Rambin thus held that MCL 750.414 requires “proof of a guilty mind,” id. at 328, and “is not a


1
  MCL 750.413, known as felony joyriding, expressly contains an intent requirement: “Any
person who shall, wilfully and without authority, take possession of and drive or take away . . .
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.” (Emphasis added). As will be discussed, the
Supreme Court has interpreted MCL 750.414, known as misdemeanor joyriding, as containing a
mens rea requirement. Rambin v Allstate Ins Co, 495 Mich 316; 852 NW2d 34 (2014).



                                               -2-
strict liability offense,” id. at 331. Further, the Rambin Court held that the joyriding statutes
“require[] an intent to take without authority or an intent to use without authority.” Id.
(emphasis added).2


The majority makes little reference to Rambin. It accurately cites that case as standing for the
principle that “[t]he statute does not apply if . . . the claimant did not know and did not have
reason to know that the taking was unlawful.” Majority op, slip op, p 3. However, the rest of the
majority opinion fails to adhere to that standard and seems to suggest that even if the claimant
had a reasonable, good-faith belief that she had authority to use the car she may still be deprived
of PIP benefits.

        The majority also errs in my view, by affording no weight to the difference between the
facts in this case, i.e., that plaintiff had her mother’s permission to use the car, and in Spectrum
where the claimant took the car “notwithstanding the fact that his father had expressly forbidden
him to drive the vehicle.” Spectrum, 492 Mich at 516 (emphasis added). Similarly, in
Spectrum’s companion case, Progressive Marathon Insurance Co v DeYoung, the claimant took
the vehicle “contrary to the [owner’s] standing instructions and without her permission.” Id. at
513 (emphasis added). This case bears no resemblance to those facts. To the contrary, it is a
good example of the concern expressed by the Supreme Court in Rambin that “if there were no
mens rea element respecting the taking or using of a vehicle, the statute could punish otherwise
innocent conduct.” Rambin, 495 Mich at 332.

                                            II. FACTS

         This is a (C)(10) motion. It deals with facts as supported by evidence. Plaintiff has
submitted evidence that she believed in good faith that she was driving the car with the necessary
permission from her mother. By contrast, there is little to no evidence that plaintiff was acting in
bad faith, i.e., that she knew she was not permitted to take the car. There is no evidence at all
that plaintiff ever saw—let alone read—the contract between defendant Enterprise and plaintiff’s
mother; nor is there any claim that plaintiff was under a legal duty to do so. And there is no
evidence that plaintiff, who was not a party to the contract, was ever told about its terms and
restrictions.3




2
  See also People v Hayward, 127 Mich App 50, 63; 338 NW2d 549 (1983) (a conviction of
joyriding under MCL 750.414 may be used for impeachment under MRE 609 because, joyriding
is a crime “involving dishonesty” or an intent to “lie, cheat or defraud[.]”) (cleaned up). If, as
argued by defendants here, it is not necessary to show that the joyriding defendant knew she
lacked authority to take the car, no “dishonesty” or intent to “defraud” is necessary.
3
 There is, of course, no law that a contract between party A and party B can render unlawful the
actions of person C, who is neither a party to the contract nor an agent of either party.




                                                -3-
        Although this is a (C)(10) motion, the majority’s discussion of the salient facts is difficult
to locate. The entire discussion is contained in a single conclusory sentence reading, “It is
undisputed that plaintiff took possession of Enterprise’s vehicle and caused it to be driven away,
and [did so] . . . with the explicit understanding that she was not authorized to drive it.” Majority
op, slip op, p 5. The sole reference to proofs in support of that conclusory statement is set out in
the footnote to that text and reads—in its entirety—: “Plaintiff testified at her deposition that she
understood that only her mother was authorized to drive the vehicle.” Majority op, slip op, p 5 n
2. If in fact plaintiff had given such testimony, and there was no testimony to the contrary, I
would agree that it would be sufficient to grant summary disposition. An examination of the
record reveals, however, that plaintiff did not offer that testimony and that other testimony is
inconsistent with defendants’ claim. The deposition exchange on which the defense relies read
as follows:

               Q. And who’s vehicle was that, if you know?

               A. It was a rental vehicle.

               Q. Who rented it?

               A. My mother.

               Q. And was she the only renter on the vehicle?

               A. Yes.

               Q. And you understand that no else was supposed to be driving that
               vehicle?

               A. Yes. [Emphasis added.]

        The majority misconstrues this testimony by interpreting the present-tense verb
“understand” to mean the past-tense verb “understood.” That is, the majority reads this
testimony as evidence of plaintiff’s knowledge at the time she used the rental vehicle. But
plaintiff was asked a present-tense question, i.e., did she currently understand that only her
mother was allowed to drive the vehicle? Given the fact that she is involved in a lawsuit that
turns on that very issue, it is no surprise that she now understands what the contract said. While
that should be the end of the discussion, let us assume that the majority’s reading of this
statement is somehow reasonable. That would still not justify summary disposition under MCR
2.116(C)(10) because a present-tense reading of the word “understand” is just as reasonable, if
not more so. Indeed, it is what the word literally means.4 The majority’s approach therefore
loses sight of the fundamental rule that when considering a (C)(10) motion, we are required to


4
 The word “understand” can be used as a past-tense verb when paired with the word “did” as in:
“Did you understand?” The question posed to plaintiff, however, asked: “And you
understand . . . ?” That is unequivocally a present-tense question.



                                                 -4-
construe the evidence in a light most favorable to the nonmovant and draw all reasonable
inferences in the nonmovant’s favor. State Farm Mut Auto Ins Co v Mich Muni Risk Mgt Auth,
317 Mich App 97, 101; 892 NW2d 451 (2016).             Plaintiff’s    subsequent       testimony—
unreferenced by the majority—further demonstrates the existence of at least a question of fact
regarding what plaintiff knew at the relevant time (as opposed to at the time of the deposition):

               Q. Did you go with your mom to rent the vehicle?

               A. No.

               Q. On the rental contract, do you know if she had your name or anybody
       else’s name written on there?

               A. I don’t know. I didn’t go with her. [Emphasis added.]

        In sum, plaintiff was not a party to the rental contract and was never given a copy of the
contract or asked to read it. She was never told that the contract barred her mother from letting
anyone else use it. And, according to her testimony, her mother gave her explicit permission to
use the car. Absent clairvoyance, it is hard to see how plaintiff could or should have known that
doing so was unlawful.

        The majority has improperly interpreted the record in the light most favorable to the
moving party rather than the nonmovant as the law requires. In addition, the majority has
misread Spectrum, and erred by not following Rambin. These cases make clear that innocent
parties may not be deprived of PIP benefits even if their use of the car was unlawful, unless it
can be shown that they knew, or should have known, that the use was unlawful. Here there is no
evidence of this requirement—certainly not sufficient evidence to grant summary disposition.

        Accordingly, I dissent and would reverse the decision of the trial court to grant summary
disposition under MCR 2.116(C)(10).



                                                            /s/ Douglas B. Shapiro




                                               -5-
