                            STATE OF MICHIGAN

                            COURT OF APPEALS



ESSA GHANEM,                                                         UNPUBLISHED
                                                                     April 12, 2016
               Plaintiff,

and

VHS OF MICHIGAN, INC, d/b/a DETROIT
MEDICAL CENTER,

               Intervening Plaintiff-Appellant,

v                                                                    No. 325045
                                                                     Wayne Circuit Court
FRANKENMUTH MUTUAL INSURANCE                                         LC No. 14-002317-NF
COMPANY,

               Defendant-Appellee.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Intervening plaintiff, VHS of Michigan, Inc. (VHS), d/b/a Detroit Medical Center,
appeals as of right an order granting defendant’s motion for summary disposition in this action to
recover no-fault personal injury protection (PIP) benefits. We reverse and remand.

        On July 25, 2013, plaintiff was in an automobile accident and VHS provided healthcare
services for his injuries. Subsequently, plaintiff brought this action for first-party PIP benefits,
alleging that he was entitled to benefits under his mother’s no-fault insurance policy because he
was domiciled in her household at the time of the accident. VHS intervened in the action to
recover PIP benefits for the healthcare services it provided to plaintiff.

       Defendant filed a motion for summary disposition under MCR 2.116(C)(10), alleging
there was no genuine issue of material fact that plaintiff was living in Canton at the time of the
accident, and thus was not domiciled with his mother, who was living in Westland. Plaintiff did
not respond to defendant’s summary motion, but VHS responded and submitted evidence in
support of its argument that plaintiff had moved from the Canton address before the accident and
was domiciled with his mother in Westland at the time of the accident. The trial court granted



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defendant’s motion, holding that there was no genuine issue of material fact that plaintiff lived in
Canton on the date of the accident.

        “This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Grandberry-Lovette v Garascia, 303 Mich App 566, 572; 844 NW2d 178 (2014).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto
Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). The trial court “must consider the
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR
2.116(G)(5), in the light most favorable to the party opposing the motion.” Id. Summary
disposition is appropriate if the proffered evidence fails to establish a genuine issue regarding
any material fact and the moving party is entitled to judgment as a matter of law. Id.

       Under MCL 500.3114(1), a PIP policy applies to the named insured, that person’s
spouse, and a relative of either who is domiciled in the same household. A person may have
only one domicile. Grange Ins Co v Lawrence, 494 Mich 475, 494; 835 NW2d 363 (2013). In
Grange, our Supreme Court distinguished the terms “domicile” and “residence,” stating:

       [A] person may have only one domicile, but more than one residence. For
       purposes of distinguishing “domicile” from “residence,” this Court has explained
       that domicile is acquired by the combination of residence and the intention to
       reside in a given place . . . . If the intention of permanently residing in a place
       exists, a residence in pursuance of that intention, however short, will establish a
       domicile. The traditional common-law inquiry into a person’s “domicile,” then, is
       generally a question of intent, but also considers all the facts and circumstances
       taken together. [Id. at 494-495 (footnoted citations and quotation marks omitted,
       ellipses in original).]

“Generally, the determination of domicile is a question of fact,” but “where . . . the underlying
facts are not in dispute, domicile is a question of law for the court.” Fowler v Auto Club Ins
Ass’n, 254 Mich App 362, 364; 656 NW2d 856 (2002).

      In Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477; 274 NW2d 373 (1979), our
Supreme Court identified four factors relevant to determining 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
       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 . . . . [Id. at 496-497
       (citations and internal quotation marks omitted).]

In that case, the plaintiff and her husband lived in a trailer situated on the plaintiff’s father-in-
law’s property. The Court concluded that the plaintiff was domiciled in the same household as
her father-in-law, based on evidence that: (1) she intended to continue living in the trailer
indefinitely; (2) she was not looking for another place to live; (3) she considered the trailer her

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home; (4) she used the same mailing address as her father-in-law; and (5) she freely and
permissively used her father-in-law’s household facilities. Id. at 497-498.

        In Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675; 333 NW2d 322 (1983),
this Court identified “[o]ther relevant indicia of domicile,” including “such factors as whether the
claimant continues to use his parents’ home as his mailing address, whether he maintains some
possessions with his parents, whether he uses his parents’ address on his driver’s license or other
documents, whether a room is maintained for the claimant at the parents’ home, and whether the
claimant is dependent upon the parents for support.” Id. at 682. This Court held that the trial
court did not err in finding that the claimant was not a domiciliary of his mother’s household for
purposes of claiming coverage under her policy because he: (1) had not lived with his mother
for six months, (2) did not depend on her for support, (3) planned to continue his living
arrangement indefinitely, and (4) had no plans or expectations to return to his mother’s home.
Id. at 684.

         In this case, the evidence showed that plaintiff and his parents lived in Canton before the
accident, and that plaintiff’s mother moved to Westland sometime before the accident. The
parties disputed whether plaintiff also moved to Westland and was domiciled in his mother’s
residence at the time of the accident. Defendant argued, and the trial court agreed, that there was
no question of fact regarding plaintiff’s domicile in Canton because his previous state
identification card (state ID), the accident report, and court records for plaintiff’s criminal case
all listed the Canton address at or near the time of the accident. Defendant argues that the only
documentary proof offered in support of plaintiff’s domicile in Westland was a state ID card
plaintiff obtained after the accident. VHS, however, submitted evidence that supported a finding
that plaintiff had in fact relocated to Westland with his mother before the accident.

        VHS submitted plaintiff’s deposition testimony in which plaintiff explained that he
previously resided with his parents in the Canton house, which had been owned by his brother
who died in 2012. Plaintiff explained that neither he nor his parents paid the mortgage after his
brother’s death, which resulted in foreclosure proceedings. Plaintiff was not certain when he and
his parents moved to the Westland house, stating that it could have been in January or February
2013, or two or three months before the accident, but he was certain that he was living in
Westland with his parents on the day of the accident because he had left the Westland house
before the accident and returned to it after he was treated at the hospital. Although plaintiff
could not produce any bills with his name and the Westland address, plaintiff stated that none of
the accounts were in his name. Plaintiff stated that court documents still had the Canton address
because, although he notified his probation officer that his address had changed to Westland, he
failed to notify the court clerk. Plaintiff and his mother both submitted affidavits averring that
plaintiff was residing in his mother’s home in Westland on the date of the accident. VHS also
provided documentation that the Canton house was foreclosed and purchased by JP Morgan
Chase Bank on July 5, 2012, and resold to other buyers on July 9, 2013, well before this
accident.

        Viewed in a light most favorable to VHS, as the non-moving party, the evidence
established a question of fact regarding plaintiff’s domicile on the date of accident. Therefore,
the trial court erred in granting defendant’s motion for summary disposition. We disagree with
VHS, however, that it was entitled to summary disposition under MCR 2.116(I)(2) (“[i]f it

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appears to the court that the opposing party, rather than the moving party, is entitled to judgment,
the court may render judgment in favor of the opposing party”). Because there was competing
evidence regarding whether plaintiff had terminated his domicile in Canton and established a
new domicile at his mother’s home in Westland at the time of the accident, VHS was not entitled
to summary disposition under MCR 2.116(I)(2).

        Defendant argues that plaintiff’s failure to respond to its summary disposition motion
operates as a waiver of his claim for PIP benefits, and therefore also precludes VHS from
recovering any benefits, which defendant argues are entirely derivative of plaintiff’s entitlement
to benefits. Defendant presents this argument as an alternative basis for affirming the trial
court’s judgment. See City of Riverview v Sibley Limestone, 270 Mich App 627, 633 n 4; 716
NW2d 615 (2006). Although the trial court did not address this issue below, we will consider it
because it involves a question of law and the facts necessary for its resolution have been
presented. See Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 387; 803 NW2d 698
(2010). This argument challenges VHS’s standing to assert a claim for PIP benefits owed to
plaintiff. “Whether a party has standing to bring an action is a question of law reviewed de novo
on appeal.” Chiropractors Rehab Group, PC v State Farm Mut Auto Ins Co, ___ Mich App ___;
___ NW2d ___ (2015) (Docket No. 320288), lv pending; slip op at 4.

        In Chiropractors Rehab Group, this Court addressed whether the plaintiff healthcare
providers were precluded from bringing direct claims against the injured patients’ no-fault
insurers when the injured persons failed to cooperate with the insurers’ policy requirements. The
defendant denied benefits to Raynard Jackson because he failed to cooperate with the
investigation of his claims, specifically by failing to submit to an independent medical
examination (IME). The defendant denied benefits to Ricky Johnson because he failed to appear
for an examination under oath (EUO). This Court rejected the defendant’s argument “that
healthcare providers do not have standing under the no-fault act to bring an action against an
insurer to obtain no-fault PIP benefits.” Id. at ___; slip op at 4. This Court concluded that the
plain language of MCL 500.3112, which states that “[p]ersonal protection insurance benefits are
payable to or for the benefit of an injured person,” reveals the Legislature’s “intent to allow
either the injured person or a party that provided benefits to an injured person to recover the
payment of benefits from an insurer; the injured person is not the only party who has this right.”
Id. at ___; slip op at 5-6 (emphasis in original). That decision supports VHS’s right to pursue a
claim for PIP benefits regardless of plaintiff’s diligence.

        Defendant’s reliance on statements by this Court in Moody v Home Owners Ins Co, 304
Mich App 415; 849 NW2d 31 (2014), is misplaced. In Moody, this Court held that “the
providers’ claims actually belong to [the insured] because ‘the right to bring an action for
personal protection insurance [PIP] benefits . . . belongs to the injured party.’” Id. at 442,
quoting Hatcher v State Farm Mut Auto Ins Co, 269 Mich App 596, 600; 712 NW2d 744 (2006).
The issue in Moody was whether providers’ claims and the insured’s claims could be
consolidated for purposes of determining the amount in controversy under MCL 600.8301(1), the
statute governing district court jurisdiction. This Court did not address the provider’s right to
bring a claim when the insured failed to undertake appropriate legal action to secure his own
right to benefits. Defendant also inappropriately relies on the Moody Court’s statement that “the
injured party may waive by agreement his or her claim against an insurer for no-fault benefits,


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and a service provider is bound by the waiver.” Id. at 442-443. This case does not involve any
agreement by plaintiff to waive a claim for no-fault benefits.

        Nothing in MCR 2.116 provides that a party may prevail on a summary disposition
motion by default. On the contrary, a party is entitled to summary disposition under MCR
2.116(C)(10) only if “there is no genuine issue of material fact, and the moving party is entitled
to judgment . . . as a matter of law.” (Emphasis added.) Moreover, in Chiropractors Rehab, this
Court held that while an injured party’s failure to submit to an IME allowed the insurer to
suspend benefits until compliance was made, failure to comply with the IME “is not tantamount
to dispositive evidence that an insured is not entitled to PIP benefits.” Chiropractors Rehab, ___
Mich App at ___; slip op at 11 (emphasis in original). This Court further noted, albeit in dicta,
that “an injured party’s failure to timely bring suit would not in and of itself bar a provider’s
timely action against the insured” if the insured is eligible for benefits. Id. at ___; slip op at 9 n 8
(emphasis in original). Thus, plaintiff’s failure to respond to defendant’s summary disposition
motion would not preclude VHS’s recovery of benefits for which plaintiff is otherwise eligible.

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



                                                               /s/ Elizabeth L. Gleicher
                                                               /s/ Mark J. Cavanagh
                                                               /s/ Karen M. Fort Hood




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