                            STATE OF MICHIGAN

                            COURT OF APPEALS



THEODIS WILLIS, JR.,                                                UNPUBLISHED
                                                                    August 21, 2018
               Plaintiff-Appellant,

v                                                                   No. 338187
                                                                    Oakland Circuit Court
JOHN DOE,                                                           LC No. 2016-153420-NI

               Defendant,

and

MATTHEW FODAL and PROGRESSIVE
MARATHON INSURANCE COMPANY,

               Defendants-Appellees.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

       In this no-fault action, plaintiff, Theodis Willis, Jr., appeals as of right the trial court
order granting summary disposition to defendant, Matthew Fodal. Willis also challenges the trial
court order granting summary disposition to defendant, Progressive Marathon Insurance
Company. For the reasons stated in this opinion, we reverse.

                                        I. BASIC FACTS

        In November 2015, Willis was driving his vehicle through an intersection when an
unidentified driver crashed a truck into the front driver’s side of Willis’s vehicle. Willis was
injured in the crash. Willis’s vehicle was covered by a no-fault automobile insurance policy
issued by Progressive. The policy, however, was purchased by his live-in girlfriend, Heather
Davis, and Willis was only listed as a driver on the policy. Progressive refused to pay Willis
benefits under the policy.

        In June 2016, Willis filed a first-party claim for no-fault benefits against Progressive,
asserting that its failure to pay benefits under Davis’s policy was unreasonable. He also brought
a third-party negligence claim against Fodal, the owner of the truck that struck him, and the
truck’s unidentified driver. Progressive moved for summary disposition, asserting that Willis
had failed to maintain no-fault insurance on his vehicle as required by MCL 500.3101(1), so his
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claim was barred by MCL 500.3113(4). In addition, Fodal moved for summary disposition,
similarly arguing that because Willis had failed to maintain no-fault insurance on his vehicle as
required by MCL 500.3101(1), his third-party claim was barred by MCL 500.3135(2)(c). In
response, Willis contended that under Iqbal v Bristol West Ins Group, 278 Mich App 31; 748
NW2d 574 (2008), he was entitled to no-fault benefits as long as someone had procured a valid
no-fault policy covering the vehicle. Further, he argued that even if Barnes v Farmers Ins
Exchange, 308 Mich App 1, 6; 862 NW2d 681 (2014) required the no-fault policy on the vehicle
to be procured by an owner of the vehicle, under the facts of this case, his girlfriend was a
constructive owner, so the policy she procured satisfied the requirement in MCL 500.3101(1).
The trial court disagreed, concluding that (1) an owner of the vehicle must procure the security
required by MCL 500.3101(1), and (2) that Willis’s girlfriend was not a constructive owner of
the vehicle. Accordingly, the court granted summary disposition in favor of Progressive and
Fodal.1

                                 II. SUMMARY DISPOSITION

                                 A. STANDARD OF REVIEW

        Willis argues that the trial court erred by granting summary disposition under MCR
2.116(C)(10) to Progressive and Fodal. This Court reviews de novo the grant or denial of a
motion for summary disposition. Arias v Talon Dev Group, Inc, 239 Mich App 265, 266; 608
NW2d 484 (2000). “A motion brought under MCR 2.116(C)(10) tests the factual support for the
plaintiff’s claim.” Id. This Court considers the “pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition is appropriate if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” Id. “A genuine issue of material fact “exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

                                         B. ANALYSIS

        The Michigan No-Fault Act is intended to “broadly provide coverage for those injured in
motor vehicle accidents without regard to fault.” Iqbal, 278 Mich App at 37 (quotation marks
and citation omitted). Under MCL 500.3101(1), “[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, property protection insurance, and residual liability insurance. . .
.” “There may be multiple owners of a vehicle for purposes of the no-fault act.” Iqbal, 278
Mich App at 38 (quotation marks and citation omitted). Further, as explained by this Court in
Iqbal, the security required by MCL 500.3101 does not have to be obtained by each and every


1
  We note that, in response to Fodal’s motion for summary disposition, Willis argued that if his
girlfriend was not a constructive owner of the vehicle, then the no-fault policy should be
reformed to list him as a driver. The trial court disagreed, and Willis does not challenge that
decision on appeal so we will not address it further.


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owner of the vehicle because the statutory requirements are satisfied so long as one of the
vehicle’s owners maintains the required insurance. Id. at 39-40. Moreover, in Barnes, 308 Mich
App at 8-9, this Court clarified that the mere fact that someone procured a no-fault policy on the
vehicle does not satisfy the requirement in MCL 500.3101(1) unless the person who procured
that policy was an owner or registrant of the vehicle.

     The No-Fault Act sets forth consequences for the failure to procure the security required
by MCL 500.3101. First, with regard to first-party claims, MCL 500.3113(b) provides:

              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.

Second, with regard to third-party claims, MCL 500.3135(2)(c) provides damages for a tort
claim “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.”

        Willis argues that neither MCL 500.3113(b) nor MCL 500.3135(2)(c) bar his claims
because his girlfriend is a constructive owner of the vehicle and she procured a no-fault policy
from Progressive that satisfies the requirements in MCL 500.3101(1). In relevant part, the term
“owner” is defined in MCL 500.3101(2)(l)(i), as “[a] person renting a motor vehicle or having
the use of a motor vehicle, under a lease or otherwise, for a period that is greater than 30 days.”
This Court discussed constructive ownership in Iqbal, stating:a

       In Ardt v Titan Ins Co, 233 Mich App 685, 690-691; 593 NW2d 215 (1999), this
       Court construed MCL 500.3101(2)(g)(i), stating:

                       [W]e hold that “having the use” of a motor vehicle for
               purposes of defining “owner,” MCL 500.3101(2)(g)(i), means
               using the vehicle in ways that comport with concepts of ownership.
               The provision does not equate ownership with any and all uses for
               thirty days, but rather equates ownership with “having the use” of a
               vehicle for that period. Further, we observe that the phrase
               “having the use thereof” appears in tandem with references to
               renting or leasing. These indications imply that ownership follows
               from proprietary or possessory usage, as opposed to merely
               incidental usage under the direction or with the permission of
               another. [Emphasis in original; see also Chop v Zielinski, 244
               Mich App 677, 680; 624 NW2d 539 (2001).]



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              In Twichel v MIC Gen Ins Corp, 469 Mich 524, 530-531; 676 NW2d 616
       (2004), our Supreme Court added the following clarification to this Court’s
       holdings in Ardt and Chop:

                       Nothing in the plain language of MCL 500.3101(2)(g)(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. [Emphasis in
               original.]

       [Iqbal, 278 Mich App at 38.]

Generally, “[t]he question of ownership [of a vehicle] is one of fact that is to be decided by the
factfinder.” Bostford Gen Hosp v Citizens Ins Co, 195 Mich App 127, 133; 489 NW2d 137
(1992).

        Progressive and Fodal directs this Court to Willis’s testimony to support their view that
Willis was the sole owner of the vehicle. In particular, Willis testified that he was the vehicle’s
primary driver and that his girlfriend was the primary driver of a different vehicle. Further,
Willis purchased the vehicle, and, although his girlfriend was a co-signor on the vehicle loan,
Willis made the car payments. He also testified that he had two sets of keys, one of which he left
in the home he shared with his girlfriend. Finally, Willis only testified that his girlfriend “drove
the vehicle before,” without elaborating on the extent of her use of the vehicle.

         However, Willis contends that his girlfriend was a constructive owner of the vehicle
because, as stated in his girlfriend’s affidavit, (1) she had access to it whenever she wanted to
drive it, (2) she had a set of keys to the vehicle in her home and had access to them “at all times,”
(3) she did not need to ask Willis for permission to use the vehicle, (4) she paid for services on
the vehicle, such as an oil change, (5) she paid for fuel for the vehicle, (6) she had driven the
vehicle on numerous occasions, and (7) the vehicle was generally garaged at her residence.
Because the vehicle was purchased in 2014 and the accident occurred in 2016, this allows for an
inference that she could and did drive the vehicle without needing permission for a period greater
than thirty days. See Twitchel, 469 Mich at 530-531. Moreover, given that she had free access
to a set of keys and performed maintenance on the vehicle, a fact-finder could reasonably infer
that her use was proprietary or possessory rather than just incidental. See Ardt, 233 Mich App at
690-691. Because, viewed in the light most favorable to the nonmoving party, these facts allow
for a reasonable inference that Willis’s girlfriend was a constructive owner, we conclude that the
trial court erred by granting summary disposition in favor of Progressive and Fodal.

        Reversed and remanded for further proceedings. We do not retain jurisdiction. As the
prevailing party, Willis may tax costs. MCR 7.219(A).

                                                              /s/ Brock A. Swartzle
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Michael J. Kelly

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