                         STATE OF MICHIGAN

                          COURT OF APPEALS



MATTHEW DYE, by his Guardian, SIPORIN &                          UNPUBLISHED
ASSOCIATES, INC.,                                                April 4, 2017

              Plaintiff-Appellee,

v                                                                No. 330308
                                                                 Washtenaw Circuit Court
ESURANCE PROPERTY & CASUALTY                                     LC No. 14-000516-NF
INSURANCE COMPANY and PRIORITY
HEALTH,

              Defendants/Cross-
              Plaintiffs/Appellees
and

GEICO INDEMNITY COMPANY,

              Defendant/Cross-
              Defendant/Appellant,
and

BLUE CROSS BLUE SHIELD OF MICHIGAN,

              Defendant-Appellee.

.


Before: BECKERING, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

        In this interlocutory appeal involving a dispute about the payment of personal injury
protection (PIP) benefits, defendant/cross-defendant Geico appeals by leave granted1 the trial
court’s November 13, 2015 order denying Geico’s motions for summary disposition as to


1
  Matthew Dye v Esurance Prop & Cas Ins Co, unpublished order of the Court of Appeals
entered April 5, 2016 (Docket No. 330308).


                                             -1-
plaintiff Matthew Dye2 and defendant/cross-plaintiff Esurance, and granting their summary
disposition motions against Geico.3 All summary disposition motions sought relief pursuant to
MCR 2.116(C)(10)(no genuine issue of material fact, and moving party entitled to judgment as a
matter of law). On appeal, Geico contends that the trial court erred in finding plaintiff’s father to
be an “owner,” for purposes of the no-fault act, MCL 500.3101 et seq., of the vehicle plaintiff
was driving at the time he sustained injuries, and in finding an enforceable settlement agreement
between Geico and Esurance requiring Geico to reimburse Esurance for PIP benefits already
paid to plaintiff. For the reasons set forth herein, we reverse and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiff suffered a traumatic brain injury and other serious injuries in a September 26,
2013 motor vehicle accident while driving a 1997 BMW that he had purchased two months
earlier. At the time of the purchase, plaintiff’s father, Paul Dye, registered the vehicle on his
son’s behalf at the Secretary of State’s Office and obtained insurance for it from Esurance
online; however, the declarations page of the policy only identifies Paul as the named insured.
Plaintiff’s wife, Lisa, whom he had married in May of 2013, owned a Dodge Caravan insured
under a Geico policy; neither plaintiff nor the BMW were listed on Lisa’s policy.

        When neither Geico nor Esurance paid plaintiff’s PIP benefits, plaintiff filed a complaint
against both alleging breach of contract. Thereafter, Esurance paid plaintiff approximately
$388,068.36 in PIP benefits. Subsequently, it was discovered that plaintiff was living with his
wife at the time of the accident, not his father, thus making Geico higher than Esurance in the
order of priority for payment of PIP benefits. Thereafter, Geico acknowledged to plaintiff and to
Esurance that it was “primary,” and requested demands from both. Esurance responded with a
demand for $388,068.36 in benefits paid, plus legal fees, which Esurance was still “pulling
together” but estimated would be around $3,000, and an agreement that Geico would “take over
the claim.”

       On October 20, 2014, with its demand still unresolved, Esurance’s attorney sent Geico’s
attorney an e-mail stating: “I am out of time on this file to wait for a resolution. I will need to
proceed with a motion for leave to file a cross-claim this week if we are not resolved by
tomorrow.” The following day, Geico’s attorney wrote in response, “I just spoke with my
adjuster, they are going to send the check to our office tomorrow made payable to Esurance. I
am working on a Release . . . .”

       On November 5, 2014, Geico e-mailed Esurance the following:




2
  The actual plaintiff is Matthew Dye’s guardian, Siporin and Associates. However, as the
parties refer to Dye as “plaintiff,” we will do the same for the sake of consistency.
3
 Although Priority Health and Blue Cross Blue Shield of Michigan are named as appellees, they
have not submitted briefs and are not participating in this appeal.


                                                -2-
       Please find attached for your review the draft of the release and settlement for the
       amount of $391,212.54.

       The settlement number comes from:

               The amount Esurance has paid to date in benefits for or on behalf of Mr.
               Dye: $388,068.544

               Attorney fees: $3,019.00

               Costs: $125.18

       Upon your approval, please send back a signed copy and we will forward the
       check in the amount of $388,068.36 and will immediately request a check from
       our client for the remaining balance. I would expect that the check for attorney
       fees and costs to be promptly forwarded to our office.

The release and settlement agreement attached to Geico’s email indicated in pertinent part that
“[f]or sole consideration of the total sum of . . . $391.212.54, ESURANCE . . . does hereby
release and forever discharge GEICO . . . from any and all past, present and future claims,
demands, damages, costs, expenses, actions, and causes of action . . . . ”

        Later that day, Esurance’s counsel replied that she could not agree to release future
claims. “In the “unlikely event that Geico stopped paying for some reason and Esurance was
drawn back into the claim, I would not want to waive any future claims.” She wrote, “If you
take out the wording ‘past, present or future’ that would cover all claims Esurance would have
against Geico through the present. Let me know if that is agreeable.”

        The following day, Geico’s counsel responded, “I fully understand the need for the
Release language regarding the Future claims, I will adjust that portion accordingly.” Geico’s
counsel added that Geico had recently “raised concerns with paying any of Esurance’s demands
for attorney fees[,]” explaining that he could find no authority requiring Geico to pay Esurance’s
attorney fees in circumstances such as these, and invited Esurance’s counsel to draw his attention
to any such authority that might exist. Geico’s attorney thanked Esurance’s attorney for “her
constant availability in trying to resolve this case.”

        On November 10, 2014, Esurance’s attorney e-mailed Geico’s attorney indicating that
she was “confused” because she “thought we were settled?” She expressed her surprise and
frustration that Geico was questioning whether to pay Esurance’s attorney fees. She wrote,
“[t]hey are incredibly lucky that they are not facing a far bigger attorney fee and interest from the
claimant” and asking Geico’s attorney to forward the revised release so they could wrap matters
up. Esurance’s attorney did not indicate that she would agree to forego payment of attorney fees.


4
  Now and again in the record there appears an eighteen-cent variance in the PIP benefits
Esurance paid to plaintiff.


                                                -3-
When Geico did not reply, Esurance repeated its request for the revised release on November 12,
2014.

        On November 13, 2014, Barnes v Farmers Ins Exch, unpublished opinion per curiam of
the Court of Appeals, issued July 29, 2014 (Docket No. 314621), was re-designated as “for
publication,” and Geico withdrew its offer.5 Subsequently, Esurance filed a cross-claim against
Geico requesting a declaratory judgment that Geico was the insurer of highest priority for
plaintiff’s PIP benefits, and alleging that Geico breached its agreement to reimburse Esurance for
the benefits paid, plus attorney fees.

         In separate depositions taken in June 2015, plaintiff, Paul, and Lisa asserted that Paul was
effectively a co-owner of the BMW plaintiff was driving at the time of the accident. Paul
testified that when plaintiff went to Afghanistan in 2010 and 2011, he executed a military power
of attorney giving Paul the legal authority to conduct transactions on his behalf and to access his
bank accounts, and Paul said he continued to provide whatever help he could to plaintiff after he
returned from deployment. Paul testified that he and plaintiff discussed the purchase of the
BMW, and that he contributed to the purchase by obtaining and paying for insurance for the car
on Esurance’s website, physically going to the Office of the Secretary of State and registering the
car—although he registered it in plaintiff’s name by exercising a power of attorney given him by
plaintiff—and by paying the registration fee. Paul testified that he could use the BMW at his
discretion, but acknowledged that he would make prior arrangements to make sure that no one
else needed the car. Paul also testified that all of the Dye family members’ vehicles were
“available for [] use kind of as a matter of right as being part of the family,” though they would
not take them without asking. Accordingly, he “had the right to use the [BMW] . . . as part of the
kind of Dye fleet of vehicles,” and that plaintiff had the right to Paul’s vehicle when he wanted
to do so.

        In their depositions, plaintiff and Lisa generally agreed with Paul’s representations.
Plaintiff testified that he paid the purchase price for the BMW, paid for its gas, and probably
would have paid for repairs had it needed any during the approximately two months that he
owned it before the accident. Nevertheless, he testified that Paul could use the BMW at Paul’s
own discretion, that when it came to vehicles, that “it was more than, you know, back and forth
use and when you needed,” and that Paul was a “part owner.” Lisa testified that when Paul took
part in the discussion about purchasing the BMW, the understanding was that Paul could use it
whenever he wanted to. She agreed that during the five-year period that she has been in a
relationship with plaintiff, “Matt and his dad kind of interchange cars and vehicles at will, kind
of a family, Dye vehicle deal.”

       Geico moved for summary disposition of Esurance’s cross-complaint, asserting that the
e-mail exchanges in November 2014 showed that Geico and Esurance had not agreed on all of


5
 As discussed elsewhere in this opinion, the Court held in Barnes that “when none of the owners
maintains the requisite coverage, no owner may recover PIP benefits.” Barnes v Farmers Ins
Exch, 308 Mich App 1, 8-9; 862 NW2d 681 (2014). Thus, a major issue in the instant case
became whether Paul was considered an owner or registrant of the BMW under the no-fault act.


                                                -4-
the terms of a settlement before Geico withdrew its offer. Geico also moved for summary
disposition of plaintiff’s claim, asserting that plaintiff was not entitled to PIP benefits in light of
Barnes because he owned the subject vehicle but had not insured it and the person who had
insured it, Paul, was not an owner as defined in MCL 500.3101(2)(k). Esurance moved for
summary disposition on its cross complaint to enforce its alleged settlement agreement with
Geico and to have the court declare Geico the insurer of first priority with regard to plaintiff’s
PIP benefits. Lastly, plaintiff moved for summary disposition, contending in relevant part that
Barnes was wrongly decided, and that Paul was an “owner” and a “registrant” for purposes of
the no-fault act because he had the right to use the BMW and he had physically registered the
vehicle.

       Rejecting Geico’s Barnes defense, the trial court summarized its findings as follows:

       [E]ven under the Barnes decision the request is granted and I find there’s no
       genuine issue of fact and I find summary disposition both for the Plaintiff and for
       Esurance, finding coverage for the accident to Matt Dye against Geico. The only
       issue is the amount of damages that each of you are [sic] entitled to receive.

As noted above, the trial court entered an order granting plaintiff’s and Esurance’s motions for
summary disposition and denying those brought by Geico.

                                             I. Analysis
                                  A. STANDARD OF REVIEW

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Auto Club Group Ins Co v. Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2002). The
parties brought their respective summary disposition motions under MCR 2.116(C)(10), which
tests the factual sufficiency of a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597
NW2d 28 (1999). “In reviewing a motion for summary disposition brought under MCR
2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and
documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion.” Quinto v Cross & Peters Co, 451 Mich
358, 362; 547 NW2d 314 (1996). “Where the moving party has produced evidence in support of
the motion, the opposing party bears the burden of producing evidence to establish that a genuine
issue of disputed fact exists.” Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215
(1999). If the documentary evidence shows that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law, the trial court may grant the motion.
Quinto, 451 Mich at 362; MCR 2.116(C)(10).

         B. PLAINTIFF’S ENTITLEMENT TO PIP BENEFITS: DETERMINATION
        WHETHER PAUL DYE WAS AN OWNER OR REGISTRANT OF THE BMW

       Geico admits that plaintiff’s status as a resident of its insured, Lisa, at the time of the
accident would make Geico first in priority for his PIP benefits under the no-fault act. However,
Geico argues that plaintiff is ineligible for coverage from any insurance because Paul, the person
who insured the BMW plaintiff was driving, was not an owner or registrant of the vehicle.
Consequently, in light of Barnes, plaintiff, as an owner of the BMW, is not entitled to be paid

                                                 -5-
PIP benefits pursuant to MCL 500.3113. Geico contends on appeal that the trial court erred in
determining that plaintiff was entitled to PIP benefits by finding that Paul was an owner and a
registrant of the BMW.

        “Normally, a person who sustains an accidental bodily injury in a motor vehicle accident
must first look to no-fault insurance policies in his household for no-fault benefits.” Michigan
Mut Ins Co v Farm Bureau Ins Group, 183 Mich App 626, 630; 455 NW2d 352, (1990), citing
MCL 500.3114(1). However, under MCL 500.3113(b), a person is not entitled to personal
protection [PIP] benefits if, at the time of the accident, he or she “was the owner or registrant of
a motor vehicle . . . involved in the accident with respect to which the security required by
section 3101 or 3103[6] was not in effect.” MCL 500.3101(1) provides in relevant part that “[t]he
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 . . . .” Although a motor
vehicle may have more than one owner for purposes of the no fault act, see Ardt, 233 Mich App
at 692, it is not sufficient that a vehicle is insured by just anyone, see Barnes, 308 Mich App 1,
8-9; 862 NW2d 681 (2014). At least one owner or registrant must have the insurance required
by MCL 500.3101(1), and “when none of the owners maintains the requisite coverage, no owner
may recover PIP benefits.” Id.

                                        1. REGISTRANT

        Geico contends that the trial court erred as a matter of law in finding that Paul was a
“registrant” of the BMW for purposes of MCL 500.3101(1). We agree.

         Although “ ‘registrant’ is not clearly defined in the Insurance Code,” Titan Ins Co v State
Farm Mut Automobile Ins Co, 296 Mich App 75, 86; 817 NW2d 621 (2012), this Court has made
clear that the “registrant” is the person whose name is on the vehicle’s title at the time of the
accident for which PIP benefits are sought, see id. at 92. See also Cason v Auto-Owners Ins Co,
181 Mich App 600, 607-608; 450 NW2d 6 (1989) (concluding that the person named on the title
at the time of the accident is the registrant).

        In the case at bar, although it is undisputed that Paul was the one who physically went to
the Office of the Secretary of State and signed the “Application for Michigan Vehicle Title,” it is
equally undisputed that he did so on plaintiff’s behalf, and signed the application as plaintiff’s
attorney-in-fact under the power of attorney granted him by plaintiff. Paul testified that he took
plaintiff’s handwritten note granting him power of attorney to the Secretary of State’s office, and
registered the BMW in plaintiff’s name, not in his own. In the absence of any evidence that
Paul’s name was on the vehicle’s title at the time of the accident for which PIP benefits are
sought, Paul cannot, as a matter of law, be the “registrant” of the BMW, Titan Ins Co, 296 Mich
App at 92, and the trial court erred in ruling otherwise.




6
  MCL 500.3103 is not applicable to the present case as it addresses motorcycle security
requirements.


                                                -6-
                                           2. OWNER

        Geico argues that the trial court erred in finding Paul to be an owner of the BMW for
purposes of MCL 500.3101(1) because Paul used the BMW sporadically at best, and not in ways
consistent with ownership. Conversely, plaintiff contends that Paul was an owner because he
had a continuous right to use the BMW and an established pattern of sharing vehicles with
plaintiff and other members of his family, and because of the particular circumstances
surrounding plaintiff’s relationship with his father. Esurance simply asserts that Paul was an
owner for purposes of MCL 500.3101(1).7

       For purposes of determining whether a person is qualified to receive PIP benefits, unless
reasonable minds could not differ, “[t]he question of ownership [of a vehicle] is one of fact that
has to be decided by the factfinder.” Botsford General Hosp v Citizens Ins Co, 195 Mich App
127, 133-134; 489 NW2d 137 (1992) (citations omitted) (the Court concluded that the trial court
did not err in permitting the question of a vehicle’s ownership to be decided by the jury rather
than granting the insurance company’s motion for a directed verdict because, “viewing the
evidence in the light most favorable to plaintiff, we find that there was a question of fact
concerning ownership”).

       Relevant to this case, “owner” is statutorily defined to include “[a] person renting a motor
vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30
days.” MCL 500.3101(2)(k)(i). “Having the use” of a motor vehicle for the purpose of defining
“owner” under MCL 500.3101(2)(k) “means using the vehicle in ways that comport with
concepts of ownership.” Ardt, 233 Mich App at 690.8 Ownership implies proprietary or



7
  Both plaintiff and Esurance argue in their briefs to this Court that resolution of this issue is
governed by Iqbal v Bristol West Ins Group, 278 Mich App 31; 748 NW2d 574 (2008), rather
than Barnes, 308 Mich App 1 (2014). In Iqbal, the Court concluded, “that the issue regarding
whether [the plaintiff] was the ‘owner’ of the vehicle under MCL 500.3101(2)(k) was irrelevant
for purposes of analysis under MCL 500.3113(b), where the vehicle was specifically insured by
plaintiff’s brother.” Iqbal, 278 Mich App at 33. In Barnes, the Court held that “when none of
the owners maintains the requisite coverage, no owner may recover PIP benefits.” Barnes, 308
Mich App at 8-9. Based on these statements, plaintiff and Esurance argue respectively that
Barnes conflicts with Iqbal, or that Barnes stands for the limited holding that where no insurance
policy is “in effect,” a vehicle does not meet the coverage requirements of MCL 500.3101(1).
We disagree with both propositions. The issue presented in Iqbal was whether every owner of a
vehicle had to insure the vehicle while the question in Barnes was whether any owner had to
obtain insurance. In Iqbal, the Court was not asked to decide whether insurance procured by
someone who was not an owner met the requirement of MCL 500.3101(1), and a fair reading of
the case indicates the Court’s operative assumption that insurance would be procured by an
owner or registrant. Thus, we do not believe that Barnes conflicts with Iqbal or establishes a
new rule of law. Even if it did, MCR 7.215(J)(1) obligates us to follow Barnes.
8
  Ardt refers to MCL 500.3101(2)(g), which was the relevant provision prior to amendment of
the statute by 2014 PA 492, effective January 13, 2015. The amendment addresses the definition

                                                -7-
possessory usage “as opposed to merely incidental usage under the direction or with the
permission of another.” Id. at 691; see also Detroit Med Ctr v Titan Ins Co, 284 Mich App 490,
493-494; 775 NW2d 151 (2009) (an injured driver was not an owner where she used the vehicle
sporadically and subject to the owner’s permission).

        Although a vehicle may have multiple owners for purposes of MCL 500.3101(2)(k),
Ardt, 233 Mich App at 691, only one of them needs to have the statutorily required no-fault
coverage on the vehicle to fulfill the requirements of MCL 500.3101(1), Iqbal v Bristol West Ins
Group, 278 Mich App 31, 45; 748 NW2d 574 (2008). However, as previously indicated, the
person who obtains the statutorily required insurance coverage must be an owner or registrant of
the insured vehicle. Barnes, 308 Mich App at 8-9. Finally, nothing in the definition of “owner”
set forth by MCL 500.3101(2)(k)(i) requires

       (1) that a person has at any time actually used the vehicle, or (2) that the person
       has commenced using the vehicle at least thirty days before the accident occurred.
       The statute merely contemplates a situation in which the person is renting or
       using a vehicle for a period that is greater than thirty days. [Twichel v MIC Gen
       Ins Corp, 469 Mich 524, 530-531; 676 NW2d 616 (2004)].

Thus, “[i]t is the nature of the right to use the vehicle—whether it is contemplated that the right
to use the vehicle will remain in effect for more than thirty days—that is controlling, not the
actual length of time that has elapsed.” Id. at 532.

        In the case at bar, Geico contends that Paul’s use of the BMW was sporadic and
incidental at best. Paul did not contribute to the BMW’s purchase price, could not remember
driving it, could not remember garaging it, did not have his own set of keys to the car, and said
he would ask plaintiff’s permission if he ever had reason to use it. The trial court, however,
found dispositive the deposition testimony of plaintiff and Paul asserting Paul’s continuous right
to use the BMW.

        Indeed, both plaintiff and Paul testified that Paul could use the car at his discretion and
without direction or permission from anyone. Although Paul testified that he would ask first
before swapping vehicles, his and plaintiff’s testimony indicates that obtaining permission was
more for the purpose of coordinating use of the vehicles and respecting the rights of others than
for asking for the right to use an otherwise available vehicle. In addition, as was the case in
Detroit Med Ctr, 284 Mich App at 493, there was a significant relationship between Paul and
plaintiff. The relationship appears to have been close, both geographically, as Paul lived only a
few blocks from plaintiff, and personal, as Paul served as plaintiff’s attorney-in-fact for
plaintiff’s personal business matters during plaintiff’s deployment to Afghanistan and assisted
him in like matters thereafter. Moreover, Paul undertook to register the BMW with the Secretary
of State’s Office, albeit on plaintiff’s behalf, but he also paid the registration fee and the



of “owner” in the context of motorcycle ownership and, therefore, is not applicable to the instant
dispute.


                                                -8-
insurance premium. Plaintiff also testified that he considered Paul to be a “part owner.” 9 The
continuous nature of Paul’s right to use the BMW, testimony asserting his right to use the car at
his discretion, the broader context of plaintiff’s and Paul’s relationship, and their history of
shared vehicle usage supports the trial court’s finding that Paul was an owner for purposes of the
no-fault act.

        Nevertheless, as Geico points out, Paul did not have his own set of keys and, although
plaintiff testified that a spare set was available to Paul to take and use at will, reasonable minds
could differ as to whether the nature of Paul’s access to the keys supported or hindered a
proprietary or possessory use of the BMW. In addition, reasonable minds could differ as to
whether Paul’s actual usage of the BMW during the two months prior to the accident sufficiently
establishes a pattern of regular usage. The testimony itself is somewhat conflicting; Paul could
not remember10 driving or parking the car at his house during the two months since it had been
purchased, but plaintiff remembered that Paul had kept the car overnight, and Lisa remembered
that Paul had driven it once or twice for a day or two during the two months that they had the car.
Lisa’s description of Paul’s use of the car might signify a “spotty and exceptional pattern,” and
her testimony that Paul used the car because they needed to use his vehicle appears to be usage
that was “merely incidental” rather than “proprietary or possessory.” Ardt, 233 Mich App at
691. However, plaintiff only had the car for two months, and it might be questionable whether a
pattern of any sort could arise during such a short period. Furthermore, as noted above, in
Twichel, 469 Mich at 532, our Supreme Court has suggested that, when determining whether a
person is an owner for purposes of the no-fault act, a person’s actual usage of a vehicle is
analytically subordinate “to the nature of a person’s right to use the vehicle.”

       The relationship between plaintiff and Paul, their history of sharing vehicles, and
testimony regarding the nature of Paul’s continuous right to use the BMW without direction or
permission may support the trial court’s finding that Paul is an owner for purposes of the no-fault
act. However, circumstances surrounding Paul’s access to the car keys and the actual usage Paul
made of the car during the two months prior to the accident could lead a reasonable juror to a
contrary conclusion. Accordingly, we conclude that the trial court erred in granting plaintiff
summary disposition, as reasonable minds could differ as to whether Paul was an owner of the
BMW. Botsford General Hosp, 195 Mich App at 133-134.




9
  Although Geico takes issue with the admissibility of plaintiff’s testimony that Paul was a “part
owner” of the BMW, claiming that it calls for a legal conclusion, plaintiff’s understanding
regarding his father’s ownership interest in the BMW is certainly relevant to the issue under
consideration by the factfinder, and the factfinder is free to make credibility determinations and
weigh all of the evidence before determining whether Paul was an owner. Notably, it “is the
nature of the right to use the vehicle—whether it is contemplated that the right to use the vehicle
will remain in effect for more than thirty days—that is controlling. . . . ” Twichel, 469 Mich at
532 (emphasis added).
10
     Paul testified that he suffers from multiple sclerosis, and that the disease affects his memory.


                                                   -9-
                               C. SETTLEMENT AGREEMENT

        Geico contends that the trial court erred by finding that Geico and Esurance had an
enforceable settlement agreement regarding Geico’s assumption of responsibility for the claim
and reimbursement to Esurance for PIP benefits paid. Geico argues that the e-mails relied upon
by the trial court to reach this conclusion clearly show that there was no “meeting of the minds”
with regard to all of the essential terms of the alleged settlement. Esurance argues that the trial
court ruled correctly because the emails reveal they did come to an agreement and Geico
breached the agreement by attempting to back out of the settlement upon issuance of Barnes as a
published opinion.

       Under MCR 2.507(G), in order for a settlement agreement to be binding, it must be made
in open court or “in writing, subscribed by the party against whom the agreement is offered or by
that party’s attorney.” An email exchange can satisfy the “writing, subscribed” requirement.
Kloian v Domino’s Pizza LLC, 273 Mich App 449, 459; 733 NW2d 766 (2006).

                       The existence and interpretation of a contract are questions
               of law reviewed de novo. An agreement to settle a pending lawsuit
               is a contract and is to be governed by the legal principles
               applicable to the construction and interpretation of contracts.
               Before a contract can be completed, there must be an offer and
               acceptance. Unless an acceptance is unambiguous and in strict
               conformance with the offer, no contract is formed. Further, a
               contract requires mutual assent or a meeting of the minds on all the
               essential terms. [Id. at 452 (quotation marks and citations
               omitted).]

        The record shows that Geico extended an offer to pay Esurance $391,212.54 in exchange
for Esurance’s agreement not to sue Geico for and to release Geico from “any and all past,
present, and future claims, demands, costs, expenses” relative to benefits paid to or on behalf of
plaintiff in connection with his motor vehicle accident of September 26, 2013. Esurance did not
accept this offer “unambiguous[ly] and in strict conformance with the offer.” Id. at 452. Instead,
Esurance counter-offered by asking Geico to remove the language about “future claims.” Geico
did not accept this counteroffer “unambiguous[ly] and in strict conformance with the offer.” Id.
Although Geico agreed to remove the language about future claims, it, too, made a counteroffer,
asserting that it would not pay Esurance’s attorney fees and costs unless shown authority
obligating it to do so. The effect of this counteroffer was to change the amount Geico was
willing to pay as consideration for Esurance’s release. However, Esurance did not accept this
counteroffer “unambiguous[ly] and in strict conformity with the offer.” Id. Esurance expressed
disbelief that Geico was not going to pay Esurance’s relatively small demand for attorney fees.
It requested a revised release, but failed to indicate unambiguously whether it accepted Geico’s
counteroffer not to pay attorney fees and costs, and, thus, to reduce its payment to Esurance
accordingly, or whether it was standing by its request for attorney fees and seeking a revised
release that removed the “past, present, or future” language. Absent an acceptance that is
“unambiguous and in strict conformance with the offer, no contract is formed.” Id.



                                               -10-
        Esurance relies on Kloian to contend that the parties had an agreement, at least with
regard to Geico’s payment of PIP benefits. Esurance’s reliance is misplaced.

        In Kloian, the plaintiff offered to settle his lawsuit against the defendant by accepting
“payment of $48,000 in [ex]change for a dismissal with prejudice of all claims and a release as
[sic, of] all possible claims.” Id. at 451. The plaintiff’s attorney conveyed these terms to the
defendant’s attorney via e-mail, in response to which the defendant’s attorney wrote on March
18, 2005, “[Defendant] accepts your settlement offer.” Id. Thereafter, however, the plaintiff
decided he wanted “the protection of a mutual release.” Id. Although the defendant cut a check
for the plaintiff and indicated that it was going to revise the prior release to reflect the plaintiff’s
request for a mutual release, the plaintiff refused to sign the agreement.

       On May 18, 2005, both parties moved the trial court to approve the settlement and close
the case, plaintiff’s counsel noting in his motion that, contrary to the advice of counsel, plaintiff
refused to sign the agreement reached by the parties on or around March 18, 2005. Id. at 451-
452. The trial court found that the parties had entered into a binding agreement on March 18,
2005, and that the request for a mutual release constituted a request to modify the contract that
the defendant accepted. Accordingly, the trial court issued an order enforcing the settlement
agreement and dismissing the plaintiff’s claims with prejudice. Id. at 452.

       The plaintiff argued on appeal that the trial court erred in enforcing the settlement
agreement because there had not been a meeting of the minds. Id. However, this Court agreed
with the trial court that the March 18, 2005 e-mail from plaintiff’s attorney to defendant’s
attorney that plaintiff would accept $48,000 in exchange for dismissal with prejudice of all
claims and a release from all possible claims constituted a settlement offer, and the defendant’s
e-mail in response constituted an unambiguous acceptance of that offer. Id. at 453. The Court
explained that these two e-mails demonstrated that “[t]here clearly was a meeting of the minds
on the essential terms of the agreement[,]” which were “the payment of $48,000 by defendant in
exchange for a dismissal with prejudice and a release.” Id. at 454.

        Esurance asserts that under the reasoning of Kloian, the parties had an enforceable
agreement on October 21, 2014, that Geico was at least going to reimburse Esurance for PIP
benefits even though, as was the case in Kloian, the parties had not hammered out the details of
the release. The flaw in Esurance’s argument is that, unlike the parties in Kloian, Geico and
Esurance never agreed to the total Geico would pay in consideration for Esurance’s release. As
indicated above, the release recited an offer of $391,212.54; however, Esurance took issue with
the extent of the release. Geico was willing to revise the release as proposed by Esurance, but
Geico indicated that it did not want to pay attorney fees without authority obligating it to do so,
which amounted to a counteroffer in exchange for a reduction in the consideration amount to be
paid. Esurance never articulated its unambiguous acceptance to forego receipt of attorney’s fees
before Geico withdrew its offer. Although the issuance of Barnes promptly snuffed out what
appears to have been a “nearly done” deal, the parties had not yet reached a meeting of the minds
on all of the essential terms, and the trial court erred in granting Esurance’s motion for summary
disposition on its cross-claim for enforcement of the alleged agreement.




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                                       III. CONCLUSION

        For the reasons set forth above, we conclude that the trial court erred as a matter of law in
finding Paul Dye a “registrant” for purposes of MCL 500.3101(1), and that genuine issues of
material fact remain with regard to whether Paul was an “owner” of the vehicle plaintiff was
driving at the time of his accident for purposes of determining whether plaintiff is entitled to PIP
benefits. We also conclude that the trial court erred in granting Esurance’s motion for summary
disposition on its cross-claim for enforcement of the alleged settlement agreement. Accordingly,
we reverse the trial court’s order granting summary disposition to plaintiff and Esurance and
remand for further proceedings consistent with this opinion.

       Reversed and remanded. We do not retain jurisdiction.



                                                              /s/ Jane M. Beckering
                                                              /s/ Stephen L. Borrello




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