ST JOHN HOSPITAL & MEDICAL CENTER V FARMERS INSURANCE EXCHANGE
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STATE OF MICHIGAN
COURT OF APPEALS
ST. JOHN HOSPITAL & MEDICAL CENTER,
UNPUBLISHED
July 27, 2010
Plaintiff-Appellee,
v
No. 292218
Wayne Circuit Court
LC No. 08-105840-NF
FARMERS INSURANCE EXCHANGE,
Defendant-Appellant.
Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ.
PER CURIAM.
In this action for recovery of first-party no-fault benefits, defendant appeals as of right
from a judgment awarding plaintiff $30,401.75, after the court granted plaintiff’s motion for
partial summary disposition pursuant to MCR 2.116(C)(10). We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
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). A motion under MCR
2.116(C)(10) tests the factual sufficiency of a complaint. Id. at 120. A reviewing court must
consider the affidavits, depositions, admissions, and other documentary evidence submitted by
the parties and, viewing that evidence in the light most favorable to the nonmoving party,
determine whether there is no genuine issue of material fact and whether the moving party is
entitled to judgment as a matter of law. Id.
Garrick McMillon was injured while driving an automobile that was titled in his mother’s
name. At the time of the accident, the vehicle was uninsured. Defendant was assigned the claim
through the Assigned Claims Facility. The issue presented is whether McMillon may be
considered an “owner” of the vehicle under MCL 500.3101(2)(h)(i), because he was a person
“having use” of the vehicle “under a lease or otherwise, for a period that is greater than 30 days.”
If so, MCL 500.3113(b) bars recovery of first-party benefits because the vehicle was uninsured.
Under MCL 500.3101(2)(h), “ownership follows from proprietary or possessory usage,
as opposed to merely incidental usage under the direction or with the permission of another.”
Ardt v Titan Ins Co, 233 Mich App 685, 690-691; 593 NW2d 215 (1999). This case is similar to
Detroit Med Ctr v Titan Ins Co, 284 Mich App 490; 775 NW2d 151 (2009), in which this Court
set forth the relevant facts as follows:
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Taking facts discerned from interviews of [the injured party Maria]
Jimenez and Jose Gonzalez in the light most favorable to defendant, it was
established that Gonzalez had title to the car and canceled the insurance; he was
the father of Jimenez's two children and may have lived with her; the car was kept
at Jimenez's residence; she used the vehicle, primarily for grocery shopping,
approximately seven times over the course of about a month; she had to get
permission and the keys from Gonzalez to use the vehicle, although permission
may never have been denied; she fueled the car, but Gonzalez was otherwise
responsible for maintenance; and he had stopped using the vehicle, as he had use
of another. [Id. at 491-492.]
This Court concluded that Jimenez was not an “owner” of the vehicle, reasoning.
Here, Jimenez did not “hav[e] the use” of the vehicle “for a period that is
greater than 30 days.” There was no transfer of a right of use, but simply an
agreement to periodically lend. The permission was not for a continuous 30 days,
but sporadic. Similar to the vehicle in Chop [v Zielinski, 244 Mich App 677; 624
NW2d 539 (2001)], the car was kept at Jimenez's residence. Moreover, she
clearly had a significant relationship with Gonzalez such that permission to use
the vehicle apparently was never denied. However, unlike the driver in Ardt,
there was no evidence that Jimenez had “regular” use of the car. Also, contrary to
the plaintiff in Chop, Jimenez did not believe that she had any right of ownership
and she did not have unfettered use. She had to ask permission and had to be
given the keys. While there are facts in common with Chop and Ardt, these facts,
by themselves, do not establish ownership. The need for permission distinguishes
this case from Chop and Twichel [v MIC Gen Ins Corp, 469 Mich 524; 676 NW2d
616 (2004)], and the lack of any evidence of regular use distinguishes this case
from Ardt. Accordingly, the trial court did not err when it concluded that Jimenez
was not an owner of Gonzalez's vehicle. [Detroit Med Ctr, 284 Mich App at 493494.]
The evidence in this case established that McMillon did not have a right of use of the
vehicle, which was titled in his mother’s name, but rather was allowed to use the vehicle
periodically with his mother’s permission, which was sometimes denied. McMillon was
required to request permission to use the car and borrow the keys, and any permissive use given
was not for a continuous period. Accordingly, the trial court did not err in granting partial
summary disposition in favor of plaintiff.
Although defendant argues that cases such as Ardt, 233 Mich App 685, and Chop, 244
Mich App 677, are based on flawed reasoning because the requirement of proprietary or
possessory usage is not part of the statutory definition of owner, we are not persuaded that Ardt
and its progeny were wrongly decided.
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Affirmed.
/s/Karen M. Fort Hood
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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