                         STATE OF MICHIGAN

                            COURT OF APPEALS



STEPHEN LACEY,                                          UNPUBLISHED
                                                        April 10, 2018
              Plaintiff-Appellee,

and

NORTHLAND RADIOLOGY, INC., RAJ &
ASSOCIATES MD, PC, and VHS OF
MICHIGAN, INC., doing business as DETROIT
MEDICAL CENTER,

              Intervening Plaintiffs-Appellees,

v                                                       No. 335580
                                                        Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION,                        LC No. 15-006459-NI

              Defendant-Appellant,

and,

PROGRESSIVE MARATHON INSURANCE
COMPANY,

              Defendant-Appellee,

and

MICHIGAN ASSIGNED CLAIMS PLAN and
MICHIGAN AUTOMOBILE INSURANCE
PLACEMENT FACILITY,

              Defendants.


Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

PER CURIAM.



                                              -1-
        In this priority dispute between no-fault insurers, defendant-appellant Auto Club
Insurance Association (ACIA) appeals as of right the trial court’s grant of summary disposition
in favor of defendant-appellee Progressive Marathon Insurance Company (Progressive) pursuant
to MCR 2.116(C)(10) (no genuine issue of material fact). Because the ownership of the pickup
truck in the car accident raises a question of fact, we reverse and remand for further proceedings
consistent with this opinion.

                                       I. BACKGROUND

        This case arises out of injuries suffered by plaintiff, Stephen Lacey, in a single-vehicle
accident in November 2014. At the time of the accident, Lacey was employed by Michigan
Wildlife Removal, LLC (MWR), which is co-owned by non-party brothers Kyle Scappaticci
(Kyle) and Kevin Scappaticci (Kevin). Lacey was driving a pickup truck that was furnished to
him for work purposes. The pickup truck’s title owner was Kyle’s wife, Jennifer Scappaticci
(Jennifer). Although Jennifer and Kyle insured several vehicles through one of ACIA’s affiliate
companies, American Automobile Association, they did not insure the pickup truck. Rather,
Kevin and his wife, Dana Scappaticci (Dana), insured the pickup truck through Progressive.

        Lacey instituted this action seeking personal protection insurance (PIP) benefits. He
named ACIA, Progressive, the Michigan Assigned Claims Plan, and the Michigan Automobile
Insurance Placement Facility as defendants, alleging that one or more of those entities had
priority to pay his PIP benefits. The various insurers filed competing motions seeking summary
disposition under MCR 2.116(C)(10) and (I)(2). The trial court ruled that ACIA, as Jennifer’s
insurer, was solely responsible to pay all of Lacey’s PIP benefits pursuant to MCL 500.3114(4).
Accordingly, the trial court granted the other insurers, including Progressive, summary
disposition. On appeal, ACIA argues that the trial court erred by so ruling. We agree.

                                 II. STANDARD OF REVIEW

        We review de novo questions regarding the interpretation and application of the no-fault
act, Farmers Ins Exchange v AAA of Mich, 256 Mich App 691, 694; 671 NW2d 89 (2003), and a
trial court’s decision regarding a motion for summary disposition, Heaton v Benton Constr Co,
286 Mich App 528, 531; 780 NW2d 618 (2009).

       A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim.
       Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
       genuine issue regarding any material fact and the moving party is entitled to
       judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10),
       this Court considers the pleadings, admissions, affidavits, and other relevant
       documentary evidence of record in the light most favorable to the nonmoving
       party to determine whether any genuine issue of material fact exists to warrant a
       trial. 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. [Zaher v Miotke, 300 Mich App 132, 139-140;
       832 NW2d 266 (2013) (quotations marks and citations omitted).]




                                               -2-
“This Court is liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich
App 1, 5; 763 NW2d 1 (2008). “Circumstantial evidence can be sufficient to establish a genuine
issue of material fact, but mere conjecture or speculation is insufficient.” McNeill-Marks v
MidMichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016).

                                       III. DISCUSSION

      “When determining the priority of insurers liable for no-fault PIP benefits, courts must
examine MCL 500.3114.” Corwin v DaimlerChrysler Ins Co, 296 Mich App 242, 254; 819
NW2d 68 (2012). MCL 500.3114 provides, in pertinent part:

               (1) Except as provided in subsections (2), (3), and (5), a [PIP] policy . . .
       applies to accidental bodily injury to the person named in the policy, the person’s
       spouse, and a relative of either domiciled in the same household, if the injury
       arises from a motor vehicle accident. . . .

                                               ***

              (3) An employee, his or her spouse, or a relative of either domiciled in the
       same household, who suffers accidental bodily injury while an occupant of a
       motor vehicle owned or registered by the employer, shall receive [PIP] benefits to
       which the employee is entitled from the insurer of the furnished vehicle.

               (4) Except as provided in subsections (1) to (3), a person suffering
       accidental bodily injury arising from a motor vehicle accident while an occupant
       of a motor vehicle shall claim [PIP] benefits from insurers in the following order
       of priority:

               (a) The insurer of the owner or registrant of the vehicle occupied.

               (b) The insurer of the operator of the vehicle occupied. [Emphasis added.]

“[T]he general rule is that one looks to a person’s own insurer for no-fault benefits unless one of
the statutory exceptions, subsections 2, 3, and 5, applies.” Parks v Detroit Auto Inter-Insurance
Exch, 426 Mich 191, 202-203; 393 NW2d 833 (1986). If neither the general rule nor any of the
above exceptions apply, then the injured person must seek PIP benefits from insurers in the order
of priority set forth by MCL 500.3114(4). Id. at 203 n 3. In that case, deciding which insurer is
liable for PIP benefits depends on “the circumstances in which the injury occurred. In these
instances, the relationship between the injured person and motor vehicles involved in the
accident determines which insurance source is liable for the payment of benefits.” Belcher v
Aetna Cas & Surety Co, 409 Mich 231, 253; 293 NW2d 594 (1980).

      In this case, the parties agree that this dispute turns on whether the exception set forth in
MCL 500.3114(3) applies and, if not, how MCL 500.3114(4) applies. Which provision applies
depends on a question of statutory interpretation: who qualifies as the vehicle’s “owner”? At the




                                                -3-
time of the accident,1 and as it pertains to this case, the no-fault act, MCL 500.3101 et seq.,
defined an “owner” as 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)(h)(i) (emphasis
added). A motor vehicle may have multiple owners. Ardt v Titan Ins Co, 233 Mich App 685,
692; 593 NW2d 215 (1999).

        Moreover, a limited liability company, such as MWR, qualifies as a “person” under
former MCL 500.3101(2)(h)(i). The no-fault act does not statutorily define a “person.”
However, MCL 8.3l—which predates the no-fault act2—provides that, in construing statutory
language, MCL 8.3, “[t]he word ‘person’ may extend and be applied to bodies politic and
corporate, as well as to individuals.” Likewise, the Michigan Vehicle Code, MCL 257.1 et seq.,
defines a “person” as “every natural person, firm, copartnership, association, or corporation and
their legal successors.” MCL 257.40.3 Accordingly, in this case, MWR is a “person.”

        Turning to the heart of the matter, we agree with ACIA that the trial court erred in several
respects. To begin with, it erred by reasoning that MWR could not be considered an “owner” of
the pickup truck because it “didn’t . . . have exclusive use of the vehicle for at least 30 days. . . .”
(Emphasis added.) “[N]othing will be read into a statute that is not within the manifest intent of
the Legislature as gathered from the act itself.” In re Marin, 198 Mich App 560, 564; 499 NW2d
400 (1993). Nothing in the plain language of former MCL 500.3101(2)(h)(i) requires
“exclusive” use. Rather, the trial court seems to have conflated the no-fault act’s definition of
“owner,” which does not require “exclusive” use, with the Michigan Vehicle Code’s definition
of that same term, at MCL 257.37, which does require “exclusive” use. “[W]hile reference to the
Vehicle Code may be used to clarify the meaning of a term used in the no-fault act, it cannot be
used to change the meaning of a term specifically defined in the no-fault act.” Auto-Owners Ins
Co v Hoadley, 201 Mich App 555, 561; 506 NW2d 595 (1993). Accordingly, in this no-fault
dispute, the Michigan Vehicle Code’s definition of an “owner” does not apply.

        The trial court further erred by holding that there is “no authority for the proposition that
the insurer of a vehicle must pay PIP benefits when a named insure[d] is not involved in the
accident.” From a purely contractual standpoint, “there is simply no authority for the
proposition that the insurer of a vehicle involved in an accident must pay PIP benefits . . . when
no named insureds were involved in the accident.” Amerisure Ins Co v Auto-Owners Ins Co, 262
Mich App 10, 16; 684 NW2d 391 (2004). However, a party’s entitlement to PIP benefits need
not be contractual in nature. On the contrary, entitlement to PIP benefits may be governed
“ ‘solely by statute.’ ” Shelton v Auto-Owners Ins Co, 318 Mich App 648, 652-653; 899 NW2d
744 (2017), quoting Harris v Auto Club Ins Ass’n, 494 Mich 462, 472; 835 NW2d 356 (2013).


1
 MCL 500.3101(2) has since been amended by 2017 PA 140 in ways that are immaterial to this
case. The definition of an “owner” is now found at MCL 500.3101(2)(l).
2
    See 1972 PA 294 (no-fault act); 1959 PA 189 (general rules of statutory construction).
3
 When the no-fault act does not define a term, it is appropriate to consult the Michigan Vehicle
Code for guidance concerning that term’s meaning. Auto-Owners Ins Co v Hoadley, 201 Mich
App 555, 560-561; 506 NW2d 595 (1993).


                                                  -4-
MCL 500.3114 is an “entitlement” provision in that injured “persons are given the right to claim
[PIP] benefits from a specific insurer.” Belcher, 409 Mich at 251-252. MCL 500.3114(3)
affords a plaintiff a statutory “cause of action directly against the . . . no-fault insurance carrier.”
Mathis v Interstate Motor Freight Sys, 408 Mich 164, 181; 289 NW2d 708 (1980). Any clause
in a no-fault policy “attempting to limit an insurer’s liability to less than that mandated by statute
is void as against public policy.” State Farm Mut Auto Ins Co v Hawkeye-Security Ins Co, 115
Mich App 675, 681; 321 NW2d 769 (1982). Therefore, the fact that no named insured was
involved in the accident is not dispositive. The trial court erred by failing to recognize that MCL
500.3114(3) arises from the injured person’s connection to the motor vehicle involved in the
accident, not from the contractual definition of a named insured.

        The trial court also failed to recognize that at least one genuine issue of material fact
remained for resolution at trial. “Having the use” of a motor vehicle “means using the vehicle in
ways that comport with concepts of ownership.” Ardt, 233 Mich App at 690. “[O]wnership
follows from proprietary or possessory usage, as opposed to merely incidental usage under the
direction or with the permission of another.” Id. at 691. “[I]t is not necessary that a person
actually have used the vehicle for a thirty-day period before a finding may be made that the
person is the owner. Rather, the focus must be on the nature of the person’s right to use the
vehicle.” Twichel v MIC Gen Ins Corp, 469 Mich 524, 530; 676 NW2d 616 (2004). If the
“arrangement under which the person has use of the vehicle is such that the right of use will
extend beyond thirty days, that person is the ‘owner’ from the inception of the arrangement,
regardless of whether a thirty-day period has expired.” Id. at 531.

        Progressive contends that neither MWR nor Kevin were “owners” because there is no
direct evidence that MWR or Kevin had the use of the pickup truck for a continuous period
exceeding 30 days. This argument ignores the fact that circumstantial evidence can create a
genuine issue of material fact. See McNeill-Marks, 316 Mich App at 16. In addition, courts
must consider the evidence and “all legitimate inferences” in favor of the nonmoving party.
Linden v Citizens Ins Co of America, 308 Mich App 89, 92; 862 NW2d 438 (2014). When
ownership is premised on a vehicle’s “pattern of . . . usage,” who constitutes an “owner” for no-
fault purposes is a question of fact. Ardt, 233 Mich App at 691. In this case, Lacey testified (1)
that he began working for MWR about six months before the accident, (2) that he worked
approximately 40 to 45 hours each week, during which time he drove one of several “company”
vehicles, (3) that the pickup truck was one of those vehicles, (4) that he switched company
vehicles “pretty regularly” but might have used the pickup truck more than any other vehicle, (5)
that he used the pickup truck over 20 times, (6) that his “bosses,” Kevin and Kyle, referred to it
as “a company truck” and told Lacey that it was his “work vehicle,” (7) that they had equipped
the pickup truck with a GPS device in order to track its location, and (8) that they told Lacey that
if he had any problems with the vehicle, he should return it to them for maintenance.
Additionally, MWR is a closely held family business; the pickup truck’s title owner (Jennifer) is
married to one of MWR’s two owners, and the pickup truck was stored with MWR’s company
vehicles, not at Jennifer’s residence. From this evidence, a rational trier of fact could reasonably
infer that despite Jennifer’s “title” ownership, MWR had the right to exercise proprietary control
over the pickup truck throughout Lacey’s entire period of employment, which far exceeded 30
days.



                                                  -5-
        Consequently, the trial court erred by granting summary disposition in favor of
Progressive. A genuine issue of fact exists whether the pickup truck’s pattern of use over a six-
month period establishes that MWR was one of the truck’s “owners.” Furthermore, this factual
issue is decidedly material to the priority dispute between ACIA and Progressive. If MWR were
one of the pickup truck’s “owners,” then Progressive would, as “the insurer of the furnished
vehicle,” have priority under MCL 500.3114(3) to pay all of Lacey’s PIP benefits in this matter.

        We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction. As the prevailing party, defendant ACIA may tax costs. MCR 7.219.

                                                           /s/ Deborah A. Servitto
                                                           /s/ Jane E. Markey
                                                           /s/ Peter D. O’Connell




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