ARTHUR BURNETT JR V FARMERS INS EXCHANGE
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STATE OF MICHIGAN
COURT OF APPEALS
ARTHUR BURNETT, JR.,
UNPUBLISHED
July 17, 2008
Plaintiff-Appellee,
v
No. 278647
Wayne Circuit Court
LC No. 06-617948-NF
FARMERS INSURANCE EXCHANGE,
Defendant-Appellant.
Before: Saad, C.J., and Fort Hood and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment for plaintiff following the grant of
plaintiff’s motion for partial summary disposition on the issue of vehicle ownership. We affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
The trial court’s ruling on a motion for summary disposition is reviewed de novo. Kefgen
v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). Statutory interpretation is a
question of law that is reviewed de novo on appeal. Van Reken v Darden, Neef & Heitsch, 259
Mich App 454, 456; 674 NW2d 731 (2003).
An insurer is liable to pay benefits for accidental bodily injury arising out of the
ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL
500.3105(1). If a person is entitled to claim benefits under § 3105 but no personal protection
insurance is applicable to the injury, the person may recover benefits through an assigned claims
plan. MCL 500.3172(1). A person who is disqualified from receiving benefits under a policy
pursuant to §§ 3105 through 3116 is likewise disqualified from receiving benefits under the
assigned claims plan. MCL 500.3173.
MCL 500.3113(b) provides:
A person is not entitled to be paid personal protection insurance benefits
for accidental bodily injury if at the time of the accident . . . [t]he person was the
owner or registrant of a motor vehicle . . . involved in the accident with respect to
which the security required by section 3101 . . . was not in effect.
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There is no dispute that the vehicle at issue in this case, which was registered to
plaintiff’s mother, was required to be insured under MCL 500.3101(1), but was not insured. We
must determine whether plaintiff qualifies as an owner of that vehicle.
MCL 500.3101(2)(g)(i) provides that an owner includes “[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.” In Ardt v Titan Ins Co, 233 Mich App 685, 690-691; 593 NW2d 215 (1999), this Court
stated that when ownership is predicated on this subsection,
“having the use” of a motor vehicle . . . 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. [Footnote omitted.]
In Ardt, the plaintiff was the title owner of the uninsured vehicle. The plaintiff’s son
Robert, who lived with the plaintiff, was driving the truck when he was involved in an accident.
Id. at 687. The plaintiff testified that her son “drove the truck only a few times and then
normally only for such minor purposes as having it washed, albeit over the space of more than
thirty days,” whereas a defense witness’s testimony indicated that “Robert was a regular driver
of the truck for more than thirty days.” Id. at 689. In light of the construction of the statute, this
Court determined that “the spotty and exceptional pattern of Robert’s usage to which [his
mother] attested may not be sufficient to render Robert an owner of the truck” but “the regular
pattern of unsupervised usage to which the defense witness attested may well support a finding
that Robert was an owner for purposes of the statute” and, therefore, a question of fact existed
for the jury. Id. at 691.
Where the undisputed evidence shows that the driver has nearly exclusive use of the
vehicle for more than 30 days, using it for his or her regular transportation needs, the driver is
considered an owner as a matter of law. Kessel v Rahn, 244 Mich App 353, 357-358; 624 NW2d
220 (2001); Chop v Zielinski, 244 Mich App 677, 680-682; 624 NW2d 539 (2001).
The Supreme Court has since held that the person “having the use” of the vehicle need
not actually have used it for more than 30 days. Indeed, the person need not have used the
vehicle at all. “The statute merely contemplates a situation in which the person is renting or
using a vehicle for a period that is greater than thirty days.” Twichel v MIC Gen Ins Corp, 469
Mich 524, 530-531; 676 NW2d 616 (2004) (emphasis in original). The focus is “on the nature of
the person’s right to use the vehicle” at the inception of the arrangement. Id. at 530-531.
The evidence in this case was not sufficient to create a genuine issue of fact regarding
plaintiff’s ownership of the vehicle and, therefore, the trial court properly granted summary
disposition for plaintiff on that issue. The evidence showed that plaintiff lived with his mother,
the titled owner of the uninsured vehicle. He did not have keys to the car or even have access to
the two sets of keys, which were in his parents’ possession or locked in their bedroom. He did
not have permission to use the car as needed and when he asked to use the car, his requests were
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denied. He had used the car no more than five times since it was purchased, and then only at his
mother’s request to run an errand for her. This evidence clearly indicates that there was no
arrangement between plaintiff and his mother under which plaintiff had a continuing right to use
the vehicle for more than 30 days. At most, they had a series of discrete arrangements under
which plaintiff was given the right to use the vehicle for a limited time for a limited purpose. In
other words, plaintiff’s use of the vehicle was “spotty and exceptional” rather than regular and
unsupervised. Therefore, the trial court did not err in finding that there was no genuine issue of
fact regarding plaintiff’s ownership of the vehicle and properly granted judgment for plaintiff on
that issue.
Affirmed.
/s/ Henry William Saad
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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