ALLSTATE INSURANCE CO V JON P HENDRY
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STATE OF MICHIGAN
COURT OF APPEALS
ALLSTATE INSURANCE COMPANY,
UNPUBLISHED
July 27, 2001
Plaintiff-Appellant,
v
JON P. HENDRY, EVELYN J. HENDRY,
EVELYN J. HENDRY on behalf of EMILY J.
HENDRY, a Minor, SARA M. HENDRY, a
Minor, JOSHUA P. HENDRY, a Minor, and JON
P. HENDRY, a Minor, NATHAN L. BORAVICH,
and NICHOLAS T. BORAVICH,
No. 226002
Alger Circuit Court
LC No. 98-003219-CZ
Defendants-Appellees,
and
WILLIAM NEIL SPAULDING, MISTY LEE
TRIPP, and DANIELLE LOUISE PEACOCK,
Defendants.
Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ.
SAWYER, P.J. (dissenting).
I respectfully dissent.
The trial court found that, while the Bronco was available for Nathan’s use, it was not
available for his “regular use.” The trial court cited the fact that Nathan had to perform relatively
minor mechanical work on the Bronco the day of the accident to make it driveable and that, given
its unlicensed, uninsured, and unregistered status, it was not available for highway driving, which
the trial court concluded was necessary for the vehicle to be available for regular use. I disagree.
As for the maintenance issue, nothing is pointed to that any automobile owner does not
have to occasionally do, such as replace a battery, replenish fluids, and add air to a tire. As for
the fact that it was not (legally) available for use on the highway, I am not persuaded that this is a
relevant factor. The insurance policy refers to the auto being “available for the regular use” and
does not refer to use on or off the highway. Further, to impose such a requirement would
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completely defeat the purpose of such exclusions because the automobile’s status as being
uninsured (and, therefore, cannot be legally driven on the highway) would be what renders it
insured. This is a non sequitur.
Furthermore, the fact that Nathan may not have regularly used the vehicle is not relevant
to this case. The policy language refers to being “available for the regular use,” not that it is, in
fact, regularly used. In the case at bar, Nathan’s father left the keys in the Bronco’s ignition so
that Nathan could use it whenever he desired and Nathan did not need to request permission each
time he used it. Therefore, he could use it regularly if he so desired.
The majority, as well as defendants, relies on our decision in State Farm Mut Automobile
Ins Co v Burbank, 190 Mich App 93, 96; 475 NW2d 399 (1991). However, this case is
significantly different than the Burbank case. In Burbank, supra at 100, we specifically noted
that the driver did not reside with the insured and only infrequently visited the insured:
In the case at bar, Christopher Clemens [the driver] lived in the State of
Florida. He maintained an apartment there, spent most of his time there, received
mail there, was licensed to drive there, and had registered his motor vehicle there.
Accordingly, the facts support but one conclusion: Robert Clemens [the owner]
did not live with Christopher Clemens.
The Court had also noted that Christopher visited his parents approximately four times a year and
a maximum of three weeks each visit. Id. at 98. In the case at bar, Nathan lived with his father,
though he apparently did travel extensively for work. In any event, it would appear that Nathan’s
access to the Bronco in this case is more extensive than was Christopher Clemens’ access to his
father’s vehicle in the Burbank case.
For the above reasons, I conclude that the trial court clearly erred in finding that the
Bronco was not available for Nathan’s regular use and would reverse.
/s/ David H. Sawyer
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