BRIDGETTE BRUNELL V MICHAEL GILBERT SCHWACH
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STATE OF MICHIGAN
COURT OF APPEALS
BRIDGETTE BRUNELL and DONALD
BRUNELL, SR.,
UNPUBLISHED
October 19, 1999
Plaintiffs-Appellants,
v
No. 207541
Macomb Circuit Court
LC No. 95-003759 NI
SNAPPY CAR RENTAL, INC.,
Defendant-Appellee.
Before: Hoekstra, P.J., and O’Connell and R. J. Danhof *, JJ.
O’CONNELL, J. (concurring in part and dissenting in part).
I concur in the majority opinion in all but part III B, where the majority concludes that the trial
court abused its discretion in denying leave to amend the complaint to add a claim of liability under the
owner’s liability statute, MCL 257.401; MSA 9.2101. I would affirm the trial court in all respects.
I generally agree with the majority’s statement that, “[w]here an owner consents to the use of
his vehicle by another for a limited purpose or with other restrictions, the owner is liable even if the
operator exceeds the scope of the permitted use.” However, I believe that this rule is inapplicable to
the facts of this case.
Here, Snappy Car Rental, Inc. (“Snappy”) kept rental vehicles at a collision shop for rental to
the shop’s customers while their vehicles were being repaired. Snappy only consented to the incidental
movement of the rental vehicles on the shop’s premises by the shop’s employees, and specifically
prohibited the employees from operating the rental vehicles for any personal reasons. Michael G.
Schwach, the employee that was operating the vehicle at the time of the accident, admitted that he
drove the vehicle outside of the shop’s premises and without permission. He pleaded guilty to the
unlawful use of a motor vehicle.
This is not a case where the owner gave permission to a person to operate the vehicle and that
person exceeded the scope of the permission. Instead, this is a case where, although Schwach was
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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allowed to move the vehicle on the shop’s premises while at work, he was
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specifically not allowed to use the vehicle off the premises or for personal reasons. However, contrary
to these instructions, he took the vehicle for personal use off the shop’s premises. Schwach was
therefore not acting as one of the shop’s employees, but as a car thief.
The statute provides that “[t]he owner is not liable unless the motor vehicle is being driven with
his or her express or implied consent or knowledge.” MCL 257.401(1); MSA 9.2101(1). See also
Poch v Anderson, 229 Mich App 40, 52; 580 NW2d 456 (1998) (“To subject an owner to liability
under the statute, an injured person need only prove that the defendant is the owner of the vehicle and
that it was being operated with the defendant’s knowledge or consent.”). Here, the vehicle was not
being driven with Snappy’s consent or knowledge. Rather, the vehicle was stolen. The following
example is illustrative: if a car dealership allows its salespersons to move the vehicles on the
dealership’s premises while the salespersons are at work, this does not mean that the car dealership has
consented to one of the salespersons stealing a vehicle. Here, Schwach stole one of Snappy’s rental
vehicles. The owner of a vehicle is not liable where the vehicle was stolen, i.e., not being driven with the
express or implied consent or knowledge of the owner.
The presumption that the operator was driving with the owner’s consent may only be overcome
by “positive, unequivocal, strong and credible evidence.” Bieszck v Avis Rent-A-Car System, Inc,
459 Mich 9, 19; 583 NW2d 691 (1998). In this case, I would hold that the presumption has been
overcome. Schwach pleaded guilty to stealing one of Snappy’s vehicles. I would therefore conclude
that the trial court did not abuse its discretion in denying leave to amend the complaint.
Accordingly, I would affirm.
/s/ Peter D. O’Connell
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