                           STATE OF MICHIGAN

                           COURT OF APPEALS



MICHAEL SIMONIE,                                                  UNPUBLISHED
                                                                  December 26, 2017
              Plaintiff-Appellee,

v                                                                 No. 333292
                                                                  Wayne Circuit Court
LOWELL COTE,                                                      LC No. 14-004088-NI

              Defendant-Appellant,

and

METROPOLITAN GROUP PROPERTY AND
CASUALTY INSURANCE COMPANY,

              Defendant.


Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (concurring).

         I concur in the result reached by the majority, but I write separately because I am
concerned that the majority inappropriately conflates the several distinct possible avenues to
liability available under the Owners Liability Statute, MCL 257.401, and relevant common law.
I hope to provide more clarification, and I further hope our Supreme Court might see fit to
provide further guidance.

        Most of the facts in this matter are undisputed. Plaintiff was injured in a hit-and-run
vehicle accident when an unidentified person only ever known as “Kathy” drove defendant’s
vehicle into plaintiff’s vehicle. No testimony or evidence suggested that defendant was in the
vehicle at the time, and for whatever reason, the driver has not been found. Relevant to the
instant appeal, plaintiff brought a claim against defendant pursuant to the Owners Liability
Statute, MCL 257.401. Defendant does not contest his ownership of the vehicle or, at least for
purposes of the motion for summary disposition, the fact of the accident. Rather, he argues that
“Kathy” took his vehicle without his knowledge or permission, absolving him of liability under
the statute.

       A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v

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Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR
2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all
evidence submitted by the parties in the light most favorable to the non-moving party and grants
summary disposition only where the evidence fails to establish a genuine issue regarding any
material fact. Id. at 120. Likewise, this Court reviews the interpretation of statutes de novo and
must give effect to the intent of the legislature without further construction if that intent is clearly
expressed. Morales v Auto-Owners Ins Co, 469 Mich 487, 490; 672 NW2d 849 (2003). “The
court is not permitted to assess credibility, or to determine facts on a motion for summary
judgment.” Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Summary
dispositions are reviewed on the basis of the evidence that had been presented to the trial court at
the time the motion is decided, not on the basis of any evidence presented later. Peña v Ingham
Co Road Comm, 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003). Consequently, the jury’s
subsequent verdict in favor of plaintiff is immaterial to whether the trial court properly denied
summary disposition. See Paul v Lee, 455 Mich 204, 216-217; 568 NW2d 510 (1997)
(overruled on other grounds by Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999)).

        In greater detail than discussed by the majority, according to defendant, he met “Kathy”
when she approached him in a restaurant and invited him to attend a party. He accepted the
invitation and drove her to an address with which he was unfamiliar, following her directions.
Defendant estimated that they arrived sometime between 7:00 and 8:00 p.m., although he
emphasized that he was uncertain of the exact time and could only “give you the ballpark.”
According to the traffic crash report, the accident at issue occurred at 8:00 p.m. The party
proved to be a birthday party and “Kathy” immediately abandoned him. Defendant testified that
when they parked, he left his keys in the center console of his vehicle, and “Kathy” “seen where
I put them when I got out of the car.” Defendant talked to people at the party and eventually fell
asleep; he woke up at around 2:30 or 3:00 a.m., whereupon he discovered that “Kathy” and his
vehicle were both missing. He stated that at no time did he tell or imply to “Kathy” that she may
use his car, nor would he have if she had asked. He decided not to deal with the missing vehicle
at that time because he was too tired, so he called a friend to pick him up and walked several
blocks to a major street to be easy to find.

        Defendant testified that he intended to report the vehicle stolen in the morning, but when
he woke up, he had a short voicemail from a person he believed to have been “Kathy”, from an
unknown number, advising him where his vehicle was located. He had no idea how “Kathy”
might have gotten his phone number, although he speculated that someone at the party might
have given it to her, it was his business phone and listed on his business card, and he had the
same phone number for 25 years. Upon retrieving the vehicle, he immediately observed that
there was a “little dent, no bigger than a softball, on the front bumper,” almost “dead center,” but
the airbags had not deployed and given the age and condition of the vehicle, he elected not to
claim it with his insurer. He opined that he was not worried about it, and “[h]ow somebody can
get injured off that no bigger than a softball is beyond me.” He did not retain the voicemail,
noting that he receives “millions” of voicemails.

        Defendant testified that he spent a considerable amount of effort driving “around the
neighborhood trying to remember what the house looked like,” as well as trying to track down
either “Kathy” or the one other person he recognized from the party. He indicated that he still
owned the vehicle and had never bothered repairing the dent. He did, however, inform the

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officer who investigated the crash that the vehicle had been taken while he was at a party and he
did not know the driver. Plaintiff’s description of the person he saw driving defendant’s vehicle
is consistent with defendant’s description of “Kathy”, and at no point did plaintiff’s testimony
suggest that anyone else was present in defendant’s vehicle.

      Plaintiff’s theory of liability in this matter is the Owner’s Liability Statute, MCL
257.401(1), which provides:

       This section shall not be construed to limit the right of a person to bring a civil
       action for damages for injuries to either person or property resulting from a
       violation of this act by the owner or operator of a motor vehicle or his or her agent
       or servant. The owner of a motor vehicle is liable for an injury caused by the
       negligent operation of the motor vehicle whether the negligence consists of a
       violation of a statute of this state or the ordinary care standard required by
       common law. The owner is not liable unless the motor vehicle is being driven
       with his or her express or implied consent or knowledge. It is presumed that the
       motor vehicle is being driven with the knowledge and consent of the owner if it is
       driven at the time of the injury by his or her spouse, father, mother, brother, sister,
       son, daughter, or other immediate member of the family.

As plaintiff correctly observes, this statute can “impose[] liability upon the owner of a motor
vehicle without regard to whether the owner was guilty of negligence.” Tahash v Flint Dodge
Co, 399 Mich 421, 425; 249 NW2d 110 (1976). The parties do not dispute that the relevant
portion for purposes of this appeal is the third sentence, under which defendant “is not liable
unless the motor vehicle is being driven with [his] express or implied consent or knowledge.”
However, additionally, although the presumption of knowledge and consent provided by statute
is inapplicable because defendant’s vehicle was not being driven by a member of his family, a
rebuttable presumption of consent arises by operation of common law. See Fout v Dietz, 401
Mich 403, 405-406, 405 n 2; 258 NW2d 53 (1977); Bieszck v Avis Rent-A-Car System, Inc, 459
Mich 9, 18-19; 583 NW2d 691 (1998).

        Consequently, for the purposes of the instant case, there are four independent possible
ways to establish liability. First, the trier of fact could affirmatively find that defendant granted
“Kathy” express consent to drive his vehicle. Second, the trier of fact could affirmatively find
that defendant granted “Kathy” implied consent to drive his vehicle. Third, the trier of fact could
affirmatively find that defendant knew that “Kathy” was driving his vehicle. Fourth, the trier of
fact could find that defendant failed to rebut the common-law presumption that he granted
“Kathy” consent to drive his vehicle. As noted, because there is no indication that “Kathy” is a
member of defendant’s family, the statutory presumption in the last sentence of the statute is
inapplicable.

        As an initial matter, a trier of fact may choose to reject any evidence if it wishes, but it
cannot invent evidence. See People v Howard, 50 Mich 239, 242-243; 15 NW 101 (1883) and
People v Bailey, 451 Mich 657, 673-675, 681-682; 549 NW2d 325 (1996). I take great
exception to the majority’s implication that defendant might have been present in his vehicle at
the time of the accident. It is possible, insofar as there are no laws of physics precluding such a
possibility, but as noted, plaintiff provided a description of the driver consistent with defendant’s

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description of “Kathy”, as well as no indication that anyone else was present in defendant’s
vehicle at the time. Although the traffic crash report and defendant’s timetable seem to disagree,
the evidence is uncontested that defendant’s timetable was approximate and that he lost track of
“Kathy” almost immediately upon arriving at the party. Even disregarding defendant’s
testimony altogether, there is simply nothing in the record to indicate that “Kathy” was anything
but alone in defendant’s vehicle at the time of the accident. To suggest otherwise necessitates
sheer speculation.

        Likewise, there is absolutely no evidence in the record that defendant granted “Kathy”
express consent to drive his vehicle. While defendant’s credibility becomes relevant to the
common-law presumption, at a summary disposition stage of proceedings we are otherwise not
permitted to evaluate witness credibility, even if the witness is interested in the outcome of the
matter. The evidence is unequivocal that defendant did not give “Kathy” consent to drive his
vehicle, and again, even disregarding defendant’s testimony altogether simply leaves no
evidence at all. A finding of express consent would require either the trier of fact to engage in
speculation or to outright invent evidence that does not exist.

         Whether defendant knew that “Kathy” was driving his vehicle is, of course, distinct from
whether he consented to “Kathy” driving his vehicle. The statute unambiguously provides that
defendant could be liable if he merely was aware that she was driving it. We are required to
follow the law as it is written. Certainly, the evidence suggests that when defendant became
aware that his vehicle was gone, he may have had some idea of who had taken it. If nothing else,
deducing that “Kathy” was the thief would not have been difficult. Furthermore, the statute
suggests that liability does not depend on the owner knowing the identity of the operator, merely
that it is in fact being operated. However, my reading of the statute’s use of present tense in the
third sentence is that the owner must know that the vehicle is being driven at the time the
accident occurs. Whether defendant eventually became aware that his vehicle had been stolen is
insufficient. The evidence, again, seems lacking to me: I do not find the discrepancy between
the timetable of the crash report and defendant’s estimate of when he arrived at the party to
illuminate anything, and otherwise there is no evidence that defendant paid any attention to his
vehicle at all until he decided to leave the party. I find no basis for finding a material question of
fact at a summary disposition stage, as to whether defendant knew his vehicle was being driven
at the time of the accident.

        Most of the argument in this matter pertains to the propriety of a finding of implied
consent. However, all that the evidence and argument establishes is that defendant was
negligent. Indeed, it is clear that defendant’s act of intentionally and knowingly leaving the keys
to a vehicle inside the vehicle, especially in front of a stranger and in an unknown location, is
without any doubt foolish. Plaintiff provides ample case law tending to establish negligence, but
bluntly, none is needed, because that conclusion is blindingly obvious. It is also completely
irrelevant, because the issue in this matter is consent, not negligence. Clearly, consent can
possibly be implied in the absence of any explicit expression to the contrary. However,
plaintiff’s argument, in a nutshell, appears to be primarily that defendant’s indisputable
negligence establishes that implied consent. I find that argument outrageous and irresponsible.

       Negligence may arguably constitute implied consent to whatever consequences are
impersonally dictated by the cold and unavoidable operation of the laws of physics. It does not

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constitute consent to an affirmative act of misconduct knowingly committed by another person,
irrespective of whether that misconduct was easier to perpetrate because of the negligence. Put
another way, stupidity is not consent to being the victim of a crime. Leaving a window open is
implied consent to one’s possessions being destroyed by rain and wind, not to one’s possessions
being stolen by passers-by. As a general matter, absent extraordinary circumstances, one is not
obligated to go through life expecting others to commit crimes against them as a matter of
course. See Heitsch v Hampton, 167 Mich App 629, 634-636; 423 NW2d 297 (1988); Rogalski
v Tavernier, 208 Mich App 302, 306-307; 527 NW2d 73 (1995); People v Schaefer, 473 Mich
418, 437-438; 703 NW2d 774 (2005). I agree wholeheartedly that defendant’s conduct was
profoundly stupid. To deduce consent from that would essentially be to conclude that any victim
of a crime who could conceivably have done more to prevent it deserves whatever happens to
them, which again would make a mockery of the entire legal system.

        I do not accept that negligence alone constitutes any kind of consent to being the victim
of a crime, and there is simply no other evidence that would establish a finding of any kind of
consent. I also find no evidence from which defendant could be found to have known that his
vehicle was being driven at the time of the accident. I find the majority’s conflation of the
various issues somewhat disturbing. However, I do agree with the majority, to the extent it does
not engage in such conflation, that the common-law presumption of consent applies and
defendant’s testimony is insufficient to warrant taking that issue from the jury.

        As noted, the common-law presumption arises purely by operation of law. That
presumption is not, however, conclusive, and it does not shift the ultimate burden of proof.
Bieszck, 459 Mich at 18-19. In the instant context, such common-law presumptions must be
rebutted by “positive, unequivocal, strong and credible evidence.” Id. at 19 (quotation omitted).
Our Supreme Court has “held that uncontradicted evidence given by defendants alone is
sufficiently clear, positive and credible to rebut the presumption and justify a directed verdict for
the defendant” when defining “[w]hat constitutes clear, positive and credible evidence[.]”
Krisher v Duff, 331 Mich 699, 710; 50 NW2d 332 (1951). Such unequivocal testimony may
nevertheless be insufficient if it comes from a witness who is not disinterested and whose
credibility has been undermined in some way. Id. at 709-710. However, such undermining
requires some basis, such as the testimony being contrary to established evidence, inherently
improbable, self-contradictory, or seemingly the product of faulty or lapsed memory. Wingett v
Moore, 308 Mich 158, 161; 13 NW2d 244 (1944), cited by Krisher, 331 Mich at 709.

        Defendant’s testimony is undisputedly positive, unequivocal, and strong; that is of course
ordinarily sufficient in evaluating a motion for summary disposition, where we are not permitted
to evaluate credibility. However, the credibility of defendant’s testimony is directly relevant to
the issue of the presumption. If “the evidence is not clear, positive and credible,” then “the issue
of whether or not the presumption of consent has been overcome should be submitted to the
jury.” Krisher, 331 Mich at 709. The irony is not lost upon me that we are therefore seemingly
called upon to evaluate defendant’s credibility at precisely the stage of proceedings in which we
are not permitted to evaluate a witness’s credibility. However, there are circumstances in which
a court may do so if testimony defies known laws of physics or is somewhat more vaguely
“patently incredible” or “inherently implausible.” See People v Lemmon, 456 Mich 625, 643-
645; 576 NW2d 129 (1998). Judges are not to sit as a “thirteenth juror,” and precisely what
constitutes “patently incredible” or “inherently implausible” testimony is not amenable to

                                                -5-
“[f]ormulaic pronouncements . . . regarding when the ‘mystic borderline’ is crossed between
credibility issues that must remain with the jury and a court’s authority to overturn that finding.”
Id. at 643-645 (internal quotations omitted). Fortunately, the issue before us is a more subtle
one: not whether defendant’s testimony is credible, but whether enough doubt is cast upon it to
warrant submitting the question of its credibility to the trier of fact.

        To emphasize the point, I again note that this issue is completely distinct from the issue
of implied consent. The issue is not whether the evidence at face value could lead to a
conclusion of implied consent, but rather whether the evidence suggests that there is any
question of whether the jury might reasonably decline to take defendant’s testimony at face
value. A finding that defendant gave implied consent would be an affirmative conclusion that
the trier of fact must draw from the evidence, which it may not do if, as I find, there is “a total
want of evidence upon any essential point.” Howard, 50 Mich at 243. If the jury chose to
disbelieve defendant, it could not construct evidence supporting a conclusion of implied consent.
However, the common-law presumption arises at common law and must be affirmatively
refuted; a want of evidence so refuting the presumption would mandate a finding of consent by
operation of law rather than by affirmative evidence.

        I emphasize further that, if I apprehend the majority’s opinion correctly, this Court is
making no determination of whether defendant was actually truthful. We may not make that
determination. Furthermore, I do not think that foolish behavior, even outrageously foolish
behavior, by itself is necessarily sufficient to cast doubt on a witness’s credibility. The fact that
a witness is not disinterested is likewise insufficient by itself to undermine it, but such interest
makes the manner of the witness’s testimony highly relevant to the witness’s credibility.
Krisher, 331 Mich at 708-709. Defendant is clearly an interested party, and when viewed in
context, I think his conduct sufficiently of concern to warrant submission of its credibility to the
jury. In particular, I find especially suspicious defendant’s decision not to report the theft to the
police promptly, the fact that he supposedly walked to a nearby major street yet was curiously
unable to locate the party house again, the fact that “Kathy” somehow obtained defendant’s
phone number, and defendant’s decision to delete her message.1 While I believe judges should
not “Monday morning quarterback” from the comfort of our chambers decisions made by people
whose life experience clearly differ greatly from our own, such extreme disregard from an
interested witness is ample basis to submit defendant’s credibility to the jury.

        I would not hold that defendant lied; nothing about his testimony rises to the level of
impossibility or implausibility that the courts should take it from the jury altogether. I would
hold nothing about defendant’s truthfulness at all. Nevertheless, under the circumstances, his
credibility was a matter for the jury, and his credibility was the lynchpin of whether he could
refute the presumption of consent. Otherwise, I would only hold that negligence does not



1
  Had defendant’s vehicle suffered significant damage, his failure to report it to his insurance
company might be suspect, but in the absence of any evidence that his vehicle did suffer any
significant damage, I think foregoing such a report to be unremarkable considering a potential
rise in premium rates with such a report.


                                                -6-
constitute implied consent to being the victim of a crime, and I find any suggestion to the
contrary implied by the majority to be highly disturbing. The issues, being distinct, are entirely
compatible with each other. I therefore concur in the result reached by the majority.

                                                            /s/ Amy Ronayne Krause




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