EDWARD CARTER V FARMERS INSURANCE EXCHANGE
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STATE OF MICHIGAN
COURT OF APPEALS
FARMERS INSURANCE EXCHANGE,
UNPUBLISHED
November 17, 2009
Plaintiff-Appellee,
v
No. 284683
Wayne Circuit Court
LC No. 06-619478-CK
ANGELA HENDERSON, Conservator of
EDWARD CARTER, a Legally Incapacitated
Person, and CEDRIC LLOYD BLAIR,
Defendants,
and
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
EDWARD CARTER,
Plaintiff,
v
No. 284684
Wayne Circuit Court
LC No. 06-614939-NF
FARMERS INSURANCE EXCHANGE,
Defendant-Appellee,
and
AUTO CLUB INSURANCE ASSOCATION,
Defendant-Appellant.
Before: Wilder, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
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In these consolidated appeals, defendant Auto Club Insurance Association (“appellant”)
appeals by leave granted from the trial court’s order granting summary disposition in favor of
defendant Farmers Insurance Exchange (“appellee”). We reverse and remand for proceedings
consistent with this opinion.
Edward Carter (“Edward”), a pedestrian, was struck by an uninsured vehicle and suffered
serious injuries. Edward did not own a vehicle and purportedly did not reside with an individual
having a no-fault insurance policy. Consequently, appellee was assigned to handle the claim
through the Michigan Assigned Claims Facility. However, appellee asserted that appellant was
responsible for the claim. Specifically, appellee alleged that Edward’s sister, Rubie L. Carter,
(“Rubie L.”) was covered under a policy of insurance with appellant, and Edward resided with
her at the time of the accident. A declaratory action was filed to determine the insurance
company responsible for payment of insurance benefits. After hearing the cross-motions for
summary disposition, the trial court granted summary disposition in favor of appellee,
concluding that Edward resided part-time with his sister, Rubie L., and therefore, her insurance
company, appellant, was responsible for the claim based on dual domiciles.
Summary disposition decisions are reviewed de novo on appeal. White v Taylor
Distributing Co, Inc, 482 Mich 136, 139; 753 NW2d 591 (2008). When reviewing a motion for
summary disposition brought pursuant to MCR 2.116(C)(10), the court must examine the
pleadings, affidavits, depositions, admissions, and any other evidence in the light most favorable
to the nonmoving party and grant the benefit of any reasonable doubt to the opposing party. Id.
When ruling on a motion for summary disposition, the court does not assess the credibility of the
witnesses. Id. at 142. Therefore, inconsistencies in a statement given by a witness cannot be
ignored. Id. at 142-143. Rather, application of disputed facts to the law present proper questions
for the jury or trier of fact. Id. at 143. The disputed factual issue must be material to the legal
claims. Martin v Ledingham, 282 Mich App 158, 161; ___ NW2d ___ (2009).
Questions involving statutory interpretation are reviewed de novo by the appellate courts.
Renny v MDOT, 478 Mich 490, 495; 734 NW2d 518 (2007). The courts must give effect to the
Legislature’s intent by examining the plain language of the statute. Id. When the language of a
statute is unambiguous, judicial construction is neither permitted nor required. Id.
MCL 500.3114 governs entitlement to personal protection insurance benefits and
provides for the order of priority for payment of benefits. It provides, in relevant part:
(1) Except as provided in subsections (2), (3), and (5), a personal protection
insurance policy described in section 3101(1) applies to accidental bodily injury
to the person named in the policy, the person’s spouse, and a relative of either
domiciled in the same household, if the injury arises from a motor vehicle
accident. A personal injury insurance policy described in section 3103(2) applies
to accidental bodily injury to the person named in the policy, the person’s spouse,
and a relative of either domiciled in the same household, if the injury arises from
a motorcycle accident. When personal protection insurance benefits or personal
injury benefits described in section 3103(2) are payable to or for the benefit of an
injured person under his or her own policy and would also be payable under the
policy of his or her spouse, relative or relative’s spouse, the injured person’s
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insurer shall pay all of the benefits and is not entitled to recoupment from the
other insurer.
If benefits are not available through MCL 500.3114, insurance may be obtained through the
assigned claims plan. MCL 500.3172 provides in relevant part:
(1) A person entitled to claim because of accidental bodily injury arising out of
the ownership, operation, maintenance, or use of a motor vehicle as a motor
vehicle in this state may obtain personal protection insurance benefits through an
assigned claims plan if no personal protection insurance is applicable to the
injury, no personal protection insurance applicable to the injury can be identified,
the personal protection insurance applicable to the injury cannot be ascertained
because of a dispute between 2 or more automobile insurers concerning their
obligation to provide coverage or the equitable distribution of the loss, or the only
identifiable personal protection insurance applicable to the injury is, because of
financial inability of 1 or more insurers to fulfill their obligations, inadequate to
provide benefits up to the maximum prescribed. In such case unpaid benefits due
or coming due are subject to being collected under the assigned claims plan, and
the insurer to which the claims is assigned, or the assigned claims facility if the
claims is assigned to it, is entitled to reimbursement from the defaulting insurers
to the extent of their financial responsibility.
When a dispute arises between two or more automobile insurers regarding their obligation to
provide coverage, an action shall be filed for the circuit court to declare the rights and duties of
any interested party. MCL 500.3172(3).
In Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477, 486-487; 274
NW2d 373 (1979), the plaintiff was rendered a paraplegic following a one-vehicle accident while
a passenger in an automobile owned and operated by her sister. Earlier in the month before the
accident, the plaintiff, her husband, and their child moved to a travel trailer owned by her fatherin-law, and the trailer was located 40 to 50 feet from the father-in-law’s home. However, three
to four days before the accident, the plaintiff and her family stayed at the residence of her mother
so her sister would not be alone while her mother was on vacation. Id. When the accident
occurred, the plaintiff and her husband did not own a motor vehicle. Consequently, a declaratory
action was filed to determine which of three insurance companies was responsible for providing
personal injury protection insurance benefits. Before trial, the court dismissed the insurance
company representing the plaintiff’s mother. After trial, the court held that the insurer for the
plaintiff’s father-in-law was responsible for providing benefits and concluded that there was no
cause of action against the insurer for the plaintiff’s sister. Id. at 488-489.
On appeal, the father-in-law’s insurer conceded that the plaintiff was a relative for
purposes of the statute, but asserted that she was not domiciled in the same household. To
resolve the issue, the Supreme Court articulated a number of considerations to address to
determine the propriety of domicile:
Our review of both Michigan opinions and opinions of our sister state
courts first reveals the general principle that the terms “resident” of an insured’s
“household” or, to the same effect, “domiciled in the same household” as an
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insured, have “no absolute meaning”, and that their meaning “may vary according
to the circumstances”. The “legal meaning” of these terms must be viewed
flexibly, “only within the context of the numerous factual settings possible”.
Accordingly, both our courts and our sister state courts, in determining
whether a person is a “resident” of an insured’s “household” or, to the same
analytical effect, “domiciled in the same household” as an insured, have
articulated a number of factors relevant to this determination. In considering
these factors, no one factor is, in itself, determinative; instead, each factor must be
balanced and weighed with the others. Among the relevant factors are the
following: (1) the subjective or declared intent of the person of remaining, either
permanently or for an indefinite or unlimited length of time, in the place he
contends is his “domicile” or “household”; (2) the formality or informality of the
relationship between the person and the members of the household; (3) whether
the place where the person lives is in the same house, within the same curtilage or
upon the same premises; (4) the existence of another place of lodging by the
person alleging “residence” or “domicile” in the household[.] [Id. at 495-497
(internal citations and footnotes omitted).]
After examining the above factors in relationship to the facts of the case, the Supreme
Court affirmed the trial court’s determination that the appropriate “domicile” was with the
plaintiff’s father-in-law, James Workman, Sr.:
When the above factors are tested against the facts in the record in this
case, it is overwhelmingly clear, as the trial court held, that plaintiff was
“domiciled in the same household” as her father-in-law, James Workman, Sr.
First, the record reveals facts indicating it was plaintiff’s intention to
remain living in the trailer on the property of James Workman, Sr., for at least an
indefinite length of time. Plaintiff testified that although she, her husband and
child were temporarily staying with her younger sister in her mother’s home when
the accident occurred, if the accident had not happened, it was her family’s
intention to have gone back to the trailer and remain living there “for an indefinite
period of time”. Plaintiff further testified that she and her husband were not
looking for any other place to live and that she considered the trailer as her home.
In addition, she testified that her family’s mailing address was the same as her
father-in-law’s. Second, the record reveals facts indicating that the relationship
between plaintiff, her husband and child, and her father-in-law’s family was
informal and friendly. Plaintiff testified that she was welcome to use and did use
all of the facilities of the house (i.e., telephone, washers and dryers, and
electricity, by cord from the house to the trailer), that her family ate meals with
the senior Workman’s family, and that during the day she and her child were “in
and out” of the house. Third, the record reveals that the trailer in which plaintiff
and her family lived was unquestionably on the same premises, or property, as her
father-in-law’s house, and that the trailer belonged to her father-in-law. The
trailer was located 40 to 50 feet from the house. The electrical power for the
trailer was supplied by a cord attached to the house and water for the trailer was
provided by means of a hose connected to the house. Furthermore, testimony
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established there was no fence of physical barrier of any type between the house
and the trailer. Fourth, the record reveals that plaintiff and her family had left the
apartment they were living in prior to moving into the trailer and had no intention
of returning there (or to any other lodging).
For these reasons, we hold that plaintiff was under § 3114(1) of the NoFault Act, “a relative of [and] domiciled in the same household” as her father-inlaw, James Workman, Sr. Accordingly, we affirm the trial court’s conclusion that
Community Services Insurance Company is responsible to plaintiff for personal
injury protection insurance benefits under the No-Fault Act. [Id. at 497-498.]
In the present case, the testimony regarding Edward’s domicile at the time of the accident
conflicted. The application for bodily injury benefits provided a Glynn Street address where
Edward’s mother, Rubie P. Carter, resided. The applicant submitted that Edward did not reside
with any relative on the date of the accident, but rather, that he resided with an unnamed
girlfriend at the address listed as his mother’s. However, an affidavit submitted in support of a
claim for benefits provided that Edward resided at the Glynn Street address with his mother and
his sister, Rubie L. During his deposition, Edward admitted that he had difficulties with his
memory and that he resided in both places. However, he acknowledged that his driver’s license
listed the Glynn Street residence as his address. Edward’s sister, Rubie L., provided an affidavit
that Edward resided on Glynn Street at the time of the accident, and that he did not reside with
her on Normile Street. However, in her deposition, Rubie L. provided testimony that Edward
resided at both places. She explained that she provided different testimony in her deposition
because she feared that her rates would increase. Edward’s other sister, Angela Henderson,
testified that Edward stayed at both residences and had clothes at both homes.
Because of the inconsistencies in the affidavits and deposition testimony, the trial court
improperly granted summary disposition. Inconsistencies in statements given by witnesses
cannot be ignored. White, supra. Rather, the trial court had the obligation to weigh the criteria
set forth in the Workman decision against the credibility of the witnesses and their varying
statements in deposition, affidavits, and other documentary evidence. Id. Indeed, in the
Workman decision, the Supreme Court affirmed the trial court’s factual determination of the
appropriate domicile following trial. Accordingly, we reverse the trial court’s decision and
remand for proceedings consistent with this opinion.
Furthermore, the trial court erred in ruling as a matter of law that Edward’s “part-time
[residence] with his sister [Rubie L.]” was sufficient to establish dual domiciles that invoked
statutory coverage pursuant to MCL 500.3114(1). The statute provides personal protection
insurance to a person “named in the policy, the person’s spouse, and a relative of either
domiciled in the same household.” The plain language of the statute does not provide for “dual
domiciles.” Renny, supra. Terms used in a statute must be given their plain and ordinary
meaning, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich
572, 578; 683 NW2d 129 (2004). The term “domicile” is defined as “a place of residence, house
or home… a permanent legal residence.” Random House Webster’s College Dictionary (2000),
p 391. Additionally, the courts have held that a person can have only one domicile that is the
place where there is a true fixed permanent and principal establishment to which the person has
the intention to return. See Henry v Henry, 362 Mich 85, 101-102; 106 NW2d 570 (1960);
Beecher v Detroit Common Council, 114 Mich 228, 230; 72 NW 206 (1897). Accordingly, we
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remand for the trial court to resolve the factual disparity regarding Edward’s domicile for
purposes of the no-fault act.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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