BUNDY CORP V GORDON ALLAN WENZEL
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STATE OF MICHIGAN
COURT OF APPEALS
BUNDY CORPORATION,
UNPUBLISHED
March 26, 2002
Plaintiff-Appellee,
v
No. 223922
Macomb Circuit Court
LC No. 96-008161-CZ
GORDON ALLAN WENZEL,
Defendant-Appellant,
and
MICHELLE MACPHERSON,
Intervening Defendant-Appellee.
BUNDY CORPORATION,
Plaintiff-Appellee,
v
No. 223924
Macomb Circuit Court
LC No. 96-008161-CZ
GORDON ALLAN WENZEL,
Defendant-Appellee,
and
MICHELLE MACPHERSON,
Intervening Defendant-Appellant.
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
These consolidated appeals are before this Court pursuant to an order of our Supreme
Court, which, in lieu of granting leave to appeal, remanded the case to this Court for
consideration as on leave granted.1 We reverse and remand.
1
Bundy Corp v Wenzel, 461 Mich 928; 605 NW2d 319 (1999).
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I
Defendant Wenzel, plaintiff’s employee, used a company minivan in the course of his
employment on Friday, January 26, 1996. He returned to his place of employment in the van and
drove it home when he left work for the weekend. That night, Wenzel went out with intervening
defendant MacPherson; Wenzel was driving plaintiff’s van. Wenzel got drunk and was involved
in an accident in which MacPherson was injured and in which the van incurred $10,000 in
damages. MacPherson indicated an intent to hold plaintiff liable for her injuries under the owner
liability statute, MCL 257.401(1).
Plaintiff filed this declaratory judgment action alleging no liability to MacPherson
because Wenzel was driving the van without consent and seeking reimbursement from Wenzel
for the damage to the van. The trial court granted plaintiff’s requests for relief. In Docket No.
223922, Wenzel appeals the trial court’s judgment awarding plaintiff (hereafter “plaintiff”),
$10,000 for property damage to plaintiff’s van. In Docket No. 223924, intervening defendant,
MacPherson appeals the trial court’s opinion and order determining that plaintiff was not liable
under the owner’s liability statute, MCL 257.401, for any injuries sustained by MacPherson,
because plaintiff did not consent or know that defendant was using the van at the time of the
accident.
II
We review de novo questions of law in declaratory judgment actions. Herold Co, Inc v
Ann Arbor Public Schs, 224 Mich App 266, 271; 568 NW2d 411 (1997). The trial court’s
findings of fact will not be reversed unless clearly erroneous. Auto-Owners Ins Co v Harvey,
219 Mich App 466, 469; 556 NW2d 517 (1996). Upon review of the record, we conclude that
the trial court committed an error of law in its application of the owner’s liability statute, MCL
257.401(1), to the ascertained facts.
Under MCL 257.401(1), the “owner is not liable unless the motor vehicle is being driven
with his or her express or implied consent or knowledge.” Consent or knowledge for purposes of
the statute refers to the fact of driving, not the purpose, place, or time of driving. Roberts v
Posey, 386 Mich 656, 661-662; 194 NW2d 310 (1972).
The statutory meaning of consent presents a question of law. Cowan v Strecker, 394
Mich 110, 116; 229 NW2d 302 (1975). When a motor vehicle is operated by a person who is not
a family member of the owner, a rebuttable presumption arises that the person was driving with
the owner’s express or implied consent. Fout v Dietz, 401 Mich 403, 405; 258 NW2d 53 (1977).
“The presumption exists because of the common difficulty in determining the issue of consent.”
Bieszck v Avis Rent-A-Car System, Inc, 459 Mich 9, 20 n 12; 583 NW2d 691 (1998). The
presumption may be overcome by positive, unequivocal, strong and credible evidence that the
owner did not consent to the person driving the motor vehicle. Id. at 19.
III
In this case there is no question that Wenzel had permission to use the van while in the
course of business on the day of the accident. The trial court found that when defendant
completed his business errand and returned to plaintiff’s business premises the previously
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granted consent ended. We disagree and find that the facts as determined by the trial court are
insufficient to rebut the presumption of consent.
The trial court cited plaintiff’s “Human Relations [sic] Procedure” as evidence that it was
plaintiff’s company policy that company vehicles were to be used strictly for company business.
However, there is no evidence in the record that Wenzel ever saw this document or was even
aware of its existence. Wenzel testified that no one ever told him he could not use the van for
personal purposes and that he had done so in the past. In addition, the employee who was in
charge of the use of the van testified that when she took on that responsibility there wasn’t “an
actual written policy” and that she never told Wenzel that he could not take the van home. On
the facts of this case, the presumption of consent is not overcome by positive, unequivocal strong
and credible evidence.
Wenzel’s conduct of maintaining possession of the van and its key after returning to the
business premises is analogous to the circumstances in Roberts, supra, where the driver failed to
return a vehicle to the owner within the anticipated time. While Wenzel might have violated the
terms of the original consent to drive the van, this is not sufficient to overcome the presumption
that a motor vehicle, taken with permission of the owner is thereafter being driven with the
owner’s express or implied consent or knowledge. Roberts, supra, at 664. As noted in Cowen,
supra at 115:
Roberts indicates unequivocally that “consent”, as that term is used in the owners’
civil liability act, must be construed to effectuate the policy of the act—that is, “to
place the risk of damage or injury upon the person who has the ultimate control of
the vehicle”. The essential consent is consent to the driving of the vehicle by
others. Cf. Kerns v Lewis, 246 Mich 423; 224 NW 647 (1929). Thus, when an
owner willingly surrenders control of his vehicle to others he “consents” to
assumption of the risks attendant upon his surrender of control regardless of
admonitions which would purport to delimit his consent. It must be so, or the
statutory purpose would be frustrated.
This case does not involve circumstances of a thief or borrower, who never had consent to drive
the vehicle in the first instance. Cf. Thomas v Eppinga, 179 Mich App 366, 376; 445 NW2d 234
(1989), and Caradonna v Arpino, 177 Mich App 486; 442 NW2d 702 (1989). See also Fout,
supra.
We therefore conclude that the trial court erred as a matter of law when it concluded that
plaintiff’s consent to defendant driving the van had ended. Further, it was error to conclude that
plaintiff could not be liable under the owner’s liability statute, MCL 257.401(1), for injuries
sustained by MacPherson during the accident. Because the issue of consent is dispositive, we do
not address the question of knowledge as an alternative basis for liability under the statute.
Reversed and remanded for further proceedings not inconsistent with this opinion. We
do not retain jurisdiction.
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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