WILLIAM BLAKE V ESURANCE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM BLAKE, Personal Representative of
the Estate of JAMES HARDY III,
UNPUBLISHED
November 6, 2007
Plaintiff-Appellant,
v
No. 275036
Wayne Circuit Court
LC No. 06-605529-NF
ESURANCE INSURANCE COMPANY,
Defendant-Appellee,
and
PROGRESSIVE INSURANCE COMPANY,
Defendant.
Before: Owens, P.J., and Bandstra and Davis, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order that granted defendant Esurance
Insurance Company’s motion for summary disposition pursuant to MCR 2.116(C)(10). We
affirm in part, reverse in part, and remand. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Plaintiff’s decedent was fatally injured while riding a motorcycle. An automobile that
left the scene allegedly caused the accident. This appeal concerns plaintiff’s attempt to recover
uninsured motorist benefits and personal injury protection benefits under a policy issued by
defendant to the mother of the decedent, Beverly Hardy.
Defendant filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10).
Defendant asserted that an exclusion to uninsured motorist coverage applies and that plaintiff
was not the real party in interest with respect to the recovery of survivors’ loss benefits. The trial
court granted defendant summary disposition, based in part on a determination of the decedent’s
residency, an issue that had not been challenged by defendant.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
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I. Uninsured Motorist Coverage
On appeal, plaintiff contends that the trial court erred in determining that plaintiff’s
decedent “owned” the motorcycle for the purposes of applying the following exclusion to
uninsured motorist coverage:
A.
We do not provide Uninsured Motorists Coverage for “bodily
injury” sustained:
1.
By an “insured” while “occupying,” or when struck by, any motor
vehicle owned by that “insured” which is not insured for this coverage under this
policy. . . .
Plaintiff contends that the exclusion did not apply because plaintiff’s decedent was not
the legal title owner of the motorcycle. The motorcycle was registered in the name of Latanya
Harris. Plaintiff relies on Auto-Owners Ins Co v Hoadley, 201 Mich App 555; 506 NW2d 595
(1993), an action for personal protection benefits following a motorcycle accident in which the
Court discussed the definitions of “owner,” “motorcycle” and “motor vehicle” in the no-fault act,
MCL 500.3101(2).
However, plaintiff’s argument is flawed because the provisions of the no-fault act are not
applicable in determining uninsured motorist coverage. “Uninsured motorist benefit clauses are
construed without reference to the no-fault act because such insurance is not required under the
act.” Twichel v MIC Gen Ins Corp, 469 Mich 524, 533; 676 NW2d 616 (2004). Where there is
nothing in the plain language of the policy to support the application of a statutory definition of
“owner” to the nonstatutory uninsured motorist coverage, the statutory definition should not be
imported into the policy. Id. at 534.
As explained in Twichel, supra, dictionary definitions of ownership indicate “possession,
control, and dominion are among the primary features of ownership.” Although the motorcycle
was registered in Harris’s name, she provided a statement, confirmed with an affidavit attesting
to the accuracy of the transcription, indicating that plaintiff’s decedent purchased the motorcycle,
kept it in his possession, and made all of the payments. The motorcycle was registered in her
name because plaintiff’s decedent was unable to get credit approval in the amount that he
required. She did not have a set of keys for it and had never ridden it. He arranged for the
insurance. Under these circumstances, which plaintiff did not dispute, the trial court correctly
concluded that plaintiff’s decedent “owned” the motorcycle.
II. Personal Injury Protection Benefits
On appeal, plaintiff argues that the trial court erred in ruling as a matter of law that the
benefits were not available because the decedent did not reside with Beverly Hardy. We agree
with plaintiff that the record showed a question of fact concerning the decedent’s residence.
The State of Michigan Traffic Crash Report lists the decedent’s address as “6682
Lakeview Blvd, Apt 16206, Detroit [sic] 48185.” The Detroit Police Department Crime Report
lists the decedent’s address as 16145 Heyden, Detroit 48228. The decedent’s driver’s license
listed his address as 6682 Lakeview Blvd Apt 16206, Westland, Michigan 48185. Beverly
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Hardy testified that as of May of 2005, the decedent was living with her on Heyden. He had his
own bedroom and slept there the night before the accident; he never lived anywhere else. The
decedent’s father, James Hardy, Jr., also testified that in the five years before the accident, the
decedent never lived anywhere else. According to the recorded statement of Harris, confirmed
by her affidavit, the decedent lived on Heyden Street with his mother, but the time period to
which Harris was referring is unclear. And, when the interviewer discussed insurance on the
motorcycle and referenced the decedent providing an address of 7320 Wilderness Park in
Westland, Harris responded, “That was his address. He was living between there and I guess his
mother’s house. I don’t know that address.” The conflicting evidence presented a genuine issue
of material fact concerning the decedent’s residence, and the trial court erred in resolving the
issue as a matter of law.
Defendant argues that even if this Court determines that the trial court’s ruling was
erroneous, this Court should not reverse the dismissal of plaintiff’s claim for survivors’ loss
benefits because plaintiff was not the real party in interest to pursue that claim. This argument
was the focus of defendant’s motion for summary disposition with respect to the personal
protection benefits.
An action must be prosecuted in the name of the real party in interest. MCR 2.201(B).
“A real party in interest is one who is vested with the right of action on a given claim, although
the beneficial interest may be in another.” Hofmann v Auto Club Ins Ass’n, 211 Mich App 55,
95; 535 NW2d 529 (1995). A personal representative may sue in his own name without joining
the party for whose benefit the action is brought. MCR 2.201(B)(1). However, MCR
2.201(B)(1) does not allow a personal representative to sue on behalf of a person on a claim that
has no relationship to the estate. Noble v McNerney, 165 Mich App 586, 601-602 n 4; 419
NW2d 424 (1988).
MCL 500.3108 governs survivors’ loss benefits, which are losses and expenses to
“dependents”:
Except as provided in subsection (2), personal protection insurance
benefits are payable for a survivor's loss which consists of a loss, after the date on
which the deceased died, of contributions of tangible things of economic value,
not including services, that dependents of the deceased at the time of the
deceased's death would have received for support during their dependency from
the deceased if the deceased had not suffered the accidental bodily injury causing
death and expenses, not exceeding $20.00 per day, reasonably incurred by these
dependents during their dependency and after the date on which the deceased died
in obtaining ordinary and necessary services in lieu of those that the deceased
would have performed for their benefit if the deceased had not suffered the injury
causing death. . . .
MCL 500.3110 addresses the requirements for being a “dependent.”
(1) The following persons are conclusively presumed to be dependents of
a deceased person:
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(a) A wife is dependent on a husband with whom she lives at the time of
his death.
(b) A husband is dependent on a wife with whom he lives at the time of
her death.
(c) A child while under the age of 18 years, or over that age but physically
or mentally incapacitated from earning, is dependent on the parent with whom he
lives or from whom he receives support regularly at the time of the death of the
parent.
(2) In all other cases, questions of dependency and the extent of
dependency shall be determined in accordance with the facts as they exist at the
time of death.
(3) The dependency of a surviving spouse terminates upon death or
remarriage. The dependency of any other person terminates upon the death of the
person and continues only so long as the person is under the age of 18 years,
physically or mentally incapacitated from earning, or engaged full time in a
formal program of academic or vocational education or training.
The decedent’s estate was not within the categories conclusively presumed to be a dependent.
The facts as they exist at the time of death, MCL 500.3110(2), do not support a determination
that the estate was a dependent of the decedent; the estate did not exist at the time of death.
In response to defendant’s argument in its motion for summary disposition, plaintiff
stated: “That concerning survivor benefits, as the estate consist [sic] of dependents, there exist
[sic] a create [sic] a genuine issue of material fact that a financial loss to the Plaintiff resulted
from James Hardy, III’s fatal injuries.” By this, plaintiff seems to contend that the fact that
beneficiaries of the estate include dependents means that the estate may be deemed a dependent.
However, plaintiff does not cite any authority to support that contention, and this Court need not
develop the argument and search for authority to support it. Mitcham v Detroit, 355 Mich 182,
203; 94 NW2d 388 (1959).
With respect to plaintiff’s request for survivors’ loss benefits, the trial court reached the
right result, albeit for the wrong reason. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d
229 (2000). However, inasmuch as defendant did not challenge plaintiff’s right to recover other
personal protection benefits, including medical and funeral expenses, the trial court’s summary
disposition order rejecting those claims is reversed.
We affirm in part, reverse in part, and remand. We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ Richard A. Bandstra
/s/ Alton T. Davis
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