RICHARD R SHAFER V RUSH TRUCKING CORP
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD R. SHAFER,
UNPUBLISHED
March 23, 2001
Plaintiff-Appellant,
v
No. 215882
Macomb Circuit Court
LC No. 97-004537-NI
RUSH TRUCKING CORPORATION and
MATTHEW D. NYE,
Defendants-Appellants.
Before: Whitbeck, P.J., and Murphy and Cooper, JJ.
PER CURIAM.
Plaintiff Richard Shafer appeals as of right from the trial court order granting defendants
Rush Trucking Corporation and Matthew Nye summary disposition pursuant to MCR
2.116(C)(10) in this automobile negligence action. We reverse and remand.
I. Basic Facts And Procedural History
Deborah Rolando owned a 1996 Pontiac car. She lived with, but was not married to,
Shafer. On January 7, 1997, Shafer was driving Rolando’s car when a tractor-trailer truck, which
Rush Trucking owned and Nye was driving, slammed into the rear-end of Rolando’s car while
Shafer was stopped at a red light. Shafer allegedly sustained severe injuries in the accident.
Only after the accident did Shafer learn that Rolando “had not paid the renewal automobile
insurance premium,” causing the policy to lapse before the accident.
When Shafer instituted this action for negligence against defendants, they moved for
summary disposition arguing that he was not entitled to noneconomic damages under MCL
500.3135(2)(c); MSA 24.13135(2)(c) because he constructively owned Rolando’s car. In support
of the motion, defendants presented evidence that Shafer testified at his deposition that he had
driven Rolando’s car two or three times a week for about six months. Further, Rolando
composed and Shafer signed a letter that was sent to his workers’ compensation carrier,
requesting “a two to three week paycheck in advance” because “[m]y car was totaled last week.”
However, the evidence on the record at the time of summary disposition also demonstrated that
Shafer did not have a set of keys to Rolando’s car, Rolando did not allow him to drive the car
without her permission, he did not have exclusive use of the car, he “never” referred to it as his
car, and Rolando permitted other people to drive the car. While Shafer and Rolando held a joint
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bank account, to which both contributed, Rolando claimed that if she used money from the
account to pay for the car, it was her own money. Shafer asserted that he did not pay any part of
the cost of Rolando’s car, its license plate, or insurance.
The trial court granted defendants’ motion for summary disposition under MCR
2.116(C)(10). It concluded that, as a matter of law, Shafer owned Rolando’s car by applying the
definition of an “owner” under MCL 500.3101(2)(g)(i); MSA 24.13101(2)(g)(i) and rejecting the
idea that ownership under the statute required a lease or continuous use for at least thirty
consecutive days. The trial court also denied Shafer’s subsequent motion for reconsideration
II. Vehicle Ownership
A. Standard Of Review
The issue on appeal in this case is a narrow one. Did the trial court err when it concluded
that Rolando’s uninsured car was Shafer’s “own vehicle” within the meaning of MCL
500.3135(2)(c); MSA 24.13135(2)(c) at the time of the accident by applying MCL
500.3101(2)(g)(i); MSA 24.13101(2)(g)(i) to this case? This is a question of law because it
requires us to apply a statute, and so requires review de novo.1 Furthermore, de novo review is
appropriate because the trial court made its decision on this legal issue within the context of a
motion for summary disposition.2
B. Legal Standards
A motion for summary disposition under MCR 2.116(C)(10) tests the factual
underpinnings of a claim other than an amount of damages, and the deciding court considers all
the evidence, affidavits, pleadings, admissions, and other information available in the record.3
The deciding court must look at all the evidence in the light most favorable to the nonmoving
party, who must be given the benefit of every reasonable doubt.4 Only if there is no factual
dispute, making the moving party entitled to judgment as a matter of law, would summary
disposition be appropriate.5 However, the nonmoving party must present more than mere
allegations in order to demonstrate that there is a genuine issue of material fact in dispute,
making trial necessary.6
1
Grzesick v Cepela, 237 Mich App 554, 559; 603 NW2d 809 (2000).
2
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
3
MCR 2.116(G)(5); Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
4
Atlas Valley Golf & Country Club, Inc v Village of Goodrich, 227 Mich App 14, 25; 575 NW2d
56 (1998).
5
See Auto Club Ins Ass’n v Sarate, 236 Mich App 432, 437; 600 NW2d 695 (1999).
6
MCR 2.116(G)(4); Etter v Michigan Bell Telephone Co, 179 Mich App 551, 555; 446 NW2d
500 (1989).
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The process of applying a statute intersects with this legal standard for summary
disposition at the point where the trial court deciding a motion for summary disposition considers
whether the moving party is entitled to judgment as a matter of law. In other words, the trial
court must understand what the law is in order to determine which party is entitled to judgment
when there is a settled factual record.7 While there is a well-known framework for construing
statutes in order to apply them, we are fortunate in this case because other panels of this Court
have already construed MCL 500.3101(2)(g)(i); MSA 24.13101(2)(g)(i). Thus, we examine the
appellate interpretations of the statute in order to determine whether the trial court in this case
erred when it concluded that MCL 500.3135(2)(c); MSA 24.13135(2)(c), based on the statutory
definition of ownership, barred Shafer’s cause of action.
C. One’s “Own Vehicle”
Overall, MCL 500.3135; MSA 24.13135 sets the conditions under which an individual
injured in an automobile accident is entitled to noneconomic damages. Subsection 2(c) provides:
Damages 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.[8]
Among the definitions of an owner the Insurance Code provides in MCL 500.3101(2)(g)(i); MSA
24.13101(2)(g)(i) is the definition that an “owner” is “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.”
This Court addressed the meaning of an owner under MCL 500.3101(2)(g)(i); MSA
24.13101(2)(g)(i) in Ardt v Titan Ins Co.9 At issue in Ardt was whether the plaintiff, who was
driving his mother’s uninsured truck at the time of his debilitating accident, owned the truck,
which is the reason the insurer cited when denying coverage.10 Like Shafer, the plaintiff lived
with the vehicle’s title holder and drove it regularly, albeit for “minor purposes” such as having it
washed, over a period in excess of thirty days.11 Referring to MCL 500.3101(2)(g)(i); MSA
24.13101(2)(g)(i), the Ardt Court framed the issue on appeal as “whether any degree of usage for
more than thirty days satisfies the statutory definition of ‘owner,’. . . or whether the definition
requires something more.”12 To answer this question, the Court reasoned:
7
See, generally, Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 737-744; 613 NW2d 383
(2000) (interpreting statute in order to determine whether trial court erred in granting summary
disposition).
8
Emphasis added.
9
Ardt v Titan Ins Co, 233 Mich App 685; 593 NW2d 215 (1999).
10
Id. at 687.
11
Id. at 687, 689.
12
Id. at 690.
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The statutory provisions at issue operate to prevent users of motor vehicles
from obtaining the benefits of personal protection insurance without carrying their
own insurance through the expedient of keeping title to their vehicles in the names
of family members. Because we infer from these provisions that they were
enacted in furtherance of the sound public policy imperative that users of motor
vehicles maintain appropriate insurance for themselves as indicated by their actual
patterns of usage, we hold that “having the use” of a motor vehicle for purposes of
defining “owner,” MCL 500.3101(2)(g)(i); MSA 24.13101(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. . . . [13]
In adopting this definition requiring evidence of ownership that encompasses “proprietary or
possessory usage,” the Court noted the mischief that would occur if it were to look exclusively at
a period of use without giving meaning to what constituted use in the first place.14 Contrasting
the evidence that the plaintiff in Ardt used the truck in which he was injured only intermittently
with the lack of supervision of his use, the Court concluded that there was a question of material
fact left to be tried in the case, making the trial court’s order granting the defendant summary
disposition inappropriate.15
Recently, this Court applied this analysis of ownership from Ardt in Kessel v Rahn.16 In
Kessel, the plaintiff’s mother owned the title to the car, but had purchased it for her daughter, the
plaintiff, to use.17 The plaintiff used the car extensively, apparently on a daily basis, almost
exclusively, and without supervision.18 Furthermore, the plaintiff was responsible for buying
gasoline, paying for insurance, and maintaining the car.19 Accordingly, this Court concluded that
the evidence of the plaintiff’s pattern of using the car in question indicated that she was its owner
under MCL 500.3101(2)(g)(i); MSA 24.13101(2)(g)(i) for the purpose of excusing liability for
noneconomic damages under MCL 500.3135(2)(c); MSA 24.13135(2)(c).20
13
Id. at 690-691.
14
Id. at 691, n 1.
15
Id. at 691.
16
Kessel v Rahn, __ Mich App __; __ NW2d __ (Docket No. 220013, issued January 23, 2001),
slip op at 3.
17
Id.
18
Id.
19
Id.
20
Id. at 3-4.
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As in Ardt, but unlike Kessel, there is conflicting evidence in the record concerning
whether Shafer exercised proprietary or possessory use of Rolando’s car. On one hand, Shafer
could have, but claims that he did not, contribute to the cost of purchasing and maintaining the
car; Rolando was apparently supposed to pay for insurance. Shafer did not have a set of keys to
the car and there is no evidence that he was allowed to use the car without Rolando’s permission.
Shafer also stated that he lacked a valid drivers’ license and preferred for Rolando to drive him
places. Shafer claimed that he was driving on the day of the accident only because he had to go
to a doctor’s appointment and Rolando could not drive him there. Even ignoring the cost of
maintaining a car, it is not clear whether Shafer maintained the car by repairing it or taking it to
be repaired. These factors suggest that he essentially borrowed Rolando’s car from her on an asneeded basis and did not tend to use it as if he owned it.
On the other hand, Shafer’s deposition testimony that there was only one set of keys to
Rolando’s car makes his lack of a set of keys questionable when it comes to determining his
relationship to the car as an owner. Necessity, not ownership, may have been the decisive factor
in who possessed keys to Rolando’s car and at what time. Shafer also drove the car with a level
of frequency, two or three times a week, and over a period that might indicate some sort of
possessory claim. Unlike Ardt, the record in this case lacks evidence that Shafer’s use was
minimal and related only to maintenance of the vehicle.21 Rather, he used Rolando’s car to meet
his ordinary transportation needs. There is no evidence on the record that Rolando consistently,
if ever, denied him permission to use the car when he asked to use it. These factors suggest that
even if he did not use Rolando’s car in a proprietary manner, he may have used it as if he
possessed it. We see no reason to give conclusive effect to the fact that the money for the car, its
gasoline, and maintenance may have come from their joint bank account when determining
ownership because both Rolando and Shafer contributed money to the account. Nevertheless,
when added to these other factors, the source of this money may support a conclusion that Shafer
had a true ownership interest in the car.
The legal standard that we must apply to analyze this issue resolves this appeal. We must
give Shafer, as the nonmoving party, the benefit of the doubt when it comes to viewing the
evidence on the record.22 The foregoing facts establish that there is a clear dispute in the record
concerning the ownership issue, making summary disposition inappropriate.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ William B. Murphy
/s/ Jessica R. Cooper
21
Ardt, supra at 691.
22
Atlas Valley Golf & Country Club, supra.
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