DZEMAL DULIC V PROGRESSIVE MICHIGAN INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
DZEMAL DULIC,
UNPUBLISHED
February 15, 2007
Plaintiff-Appellee,
v
No. 271275
Macomb Circuit Court
LC No. 2004-004851-NF
PROGRESSIVE MICHIGAN INSURANCE
COMPANY and CLARENDON NATIONAL
INSURANCE,
Defendants-Appellees,
and
AMERISURE INSURANCE COMPANY,
Defendant-Appellant.
Before: Murphy, P.J., and Smolenski and Kelly, JJ.
Kelly, J. (dissenting).
I respectfully dissent. I would conclude that the trial court erred in not applying the
economic realities test to determine whether defendant Amerisure Insurance Company is liable
for payment of personal protection insurance (PIP) benefits to plaintiff under MCL 500.3114(3).
I would reverse and remand for further proceedings.
It is undisputed that, at the time of the accident, plaintiff was under dispatch and hauling
freight for Sweet Express, a motor carrier for hire. The tractor-trailer involved in the accident
was titled in plaintiff’s name. However, it was subject to a contractor-operator agreement
between plaintiff and Sweet Express whereby plaintiff’s tractor-trailer was leased to Sweet
Express for the hauling of commodities made available to plaintiff by Sweet Express. Pursuant
to this agreement, plaintiff agreed to operate the tractor-trailer when he would transport
commodities on behalf of Sweet Express. The agreement further provided that plaintiff and
Sweet Express “deem it essential to their respective interests to establish and maintain and [sic]
Independent Contractor relationship in the execution and performance of this agreement.”
Amerisure Insurance Company issued Sweet Express a no-fault policy that included plaintiff’s
tractor-trailer.
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Generally, a person who sustains an accidental bodily injury in an automobile accident
must first look to no-fault insurance policies in his household for no-fault benefits. Michigan
Mut Ins v Farm Bureau, 183 Mich App 626, 630; 455 NW2d 352 (1990). No-fault policies in
the household are first in order of priority of responsibility for no-fault benefits, regardless of
whether the injured person was, or was not, an occupant of a motor vehicle at the time of the
accident. Id. However, an exception, pursuant to MCL 500.3114(1) may apply, which could
shift primary liability.
MCL 500.3114(3) provides:
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 personal protection
insurance benefits to which the employee is entitled from the insurer of the
furnished vehicle.
Clearly, as a part of the policy issued to Sweet Express, defendant agreed to provide,
among others, no-fault benefits if any of Sweet Express’ employees, their spouses, or relatives of
either domiciled in the same household should be injured while occupying a corporate vehicle.
The question presented in this appeal is whether MCL 500.3114 requires a corporate insurer to
extend coverage under the circumstances presented in this case.
The terms “employee” and “employer” are not defined for purposes of MCL
500.3114(3). This Court has applied the economic realities test in determining whether an
employment relationship exists for purposes of applying MCL 500.3114(3). The factors to be
considered in applying the economic realities test include: (1) control of the worker’s duties; (2)
payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an
integral part of the employer’s business toward the achievement of a common goal. Parham v
Preferred Risk Mutual Ins Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). An independent
contractor is “one who, carrying on an independent business, contracts to do work without being
subject to the right of control by the employer as to the method of work but only as to the result
to be accomplished.” Id. at 622-623. The trial court should have applied these factors to the
facts of this case to determine liability.
In contrast to the trial court and majority opinions, I do not find that Celina Mut Ins Co v
Lake States Ins Co, 452 Mich 84; 549 NW2d 834 (1996) applies to this case. In Celina, Robert
Rood was the sole proprietor of an unincorporated business called Rood's Wrecker & Mobile
Home Service. Rood was driving a wrecker truck owned by Rood's Wrecker & Mobile Home
Service while towing another wrecker owned by that entity. Celina Mutual Insurance Company
had issued the policy to Rood's Wrecker & Mobile Home Service while another insurer insured
three of Rood's personal vehicles. Our Supreme Court determined that Rood, as a sole
proprietor, was an employee for the purposes of MCL 500.3114(3). Thus, because Rood was an
employee of the employer covered by Celina’s policy, Celina was responsible for payment of
Rood’s PIP benefits.
In this case, the facts are markedly different. Plaintiff does not appear to be an employee
of Sweet Express. Rather, the record demonstrates that he was a self-employed trucker “who,
carrying on an independent business, contracts to do work without being subject to the right of
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control by the employer as to the method of work but only as to the result to be accomplished.”
Parham, supra at 622-623. In the course of his self-employment, plaintiff contracted with Sweet
Express to haul commodities. As noted, although the tractor-trailer was titled in plaintiff’s name,
it had been leased to Sweet Express. For purposes of MCL 500.3114(3), it is the relationship
between Sweet Express and plaintiff that must be examined.
To conclude otherwise would, in essence, rewrite the policy between defendant and
Sweet Express to potentially cover non-employees. This was not a risk assumed by defendant
nor did the Legislature, in providing limited coverage for corporate vehicles under MCL
500.3114(3), intend such a result.
Accordingly, I would reverse and remand for further proceedings.
/s/ Kirsten Frank Kelly
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