HEIDI ALLEN V STATE FARM MUTUAL AUTO INS COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
HEIDI ALLEN, as Conservator of the Estate of
October 4, 2005
Lapeer Circuit Court
LC No. 03-032939-NF
STATE FARM MUTUAL AUTOMOBILE
Official Reported Version
Before: Borrello, P.J. and Bandstra and Kelly, JJ.
KELLY, J. (concurring).
I agree with the lead opinion that Benjamin Strother is not a "family member" of the
insured, Heidi Allen, as that term is used in the joyriding family member exception articulated in
Priesman v Meridian Mut Ins Co, 441 Mich 60; 490 NW2d 314 (1992), and Butterworth Hosp v
Farm Bureau Ins Co, 225 Mich App 244; 570 NW2d 304 (1997). However, although I concur
with the result reached by the lead opinion, I write separately to note that the joyriding family
member exception does not appear in the plain language of the no-fault act, MCL 500.3101 et
seq. Rather, it was effectively inserted into the statute by the appellate courts of this state.
Under MCL 500.3113, first-party no-fault personal protection insurance (PIP) benefits1
are precluded under certain circumstances. MCL 500.3113 provides, in relevant part:
A person is not entitled to be paid personal protection insurance benefits
for accidental bodily injury if at the time of the accident any of the following
The statutory phrase is "personal protection insurance benefits," but they are also known as
"first-party" or "PIP" benefits. McKelvie v Auto Club Ins Ass'n, 459 Mich 42, 44 n 1; 586 NW2d
(a) The person was using a motor vehicle or motorcycle which he or she
had taken unlawfully, unless the person reasonably believed that he or she was
entitled to take and use the vehicle.
Under MCL 500.3113(a), PIP benefits will be denied if (1) a person takes a vehicle unlawfully
and (2) that person also did not have a reasonable basis for believing that he or she could take
and use the vehicle. Bronson Methodist Hosp v Forshee, 198 Mich App 617, 626; 499 NW2d
Although the term "taken unlawfully" is not defined in the statute, in Priesman, three
members of our Supreme Court created a judicial exception to MCL 500.3113(a) for "joyriding"
family members, generally, teenagers taking their parents' vehicles without permission. The
three justices2 believed that because joyriding was such a common occurrence in families,
benefits should not be denied in that situation, because that was not what the Legislature
presumably intended. Priesman, supra at 68.
Dissenting Justice Griffin, with Justices Brickley and Riley concurring, criticized this
conclusion. After noting that "[w]hen the language of a statute is certain, clear and
unambiguous, it is to be applied as written," Justice Griffin stated:
The majority departs from these principles to conclude that because
legislators "generally are also parents and sometimes grandparents" and "[s]ome
may have had experience with children, grandchildren, nephews, nieces, and
children of friends who may have used a family vehicle without permission," they
did not intend to exclude coverage in case such as this. Although such an
argument may have emotional appeal, it is not supported by the language of
[MCL 500.3113(a)], nor by the legislative history of that provision. [Id. at 72-73
Justice Griffin further observed that the "proper guide for this Court's interpretation is not the
general or ideal role of the family in our society, but the specific language of the statute selected
by the Legislature." Id. at 73 n 13.
Priesman is not binding precedent because only three justices concurred in the reasoning
of the lead opinion. Under the doctrine of stare decisis, a plurality decision—one in which a
majority of the justices participating do not concur in the reasoning—is not binding precedent.
Swickard v Wayne Co Med Examiner, 438 Mich 536, 570 n 15; 475 NW2d 304 (1991) (opinion
by Levin, J.); Negri v Slotkin, 397 Mich 105, 109-110; 244 NW2d 98 (1976); Summers v Detroit,
206 Mich App 46, 50; 520 NW2d 356 (1994). Nonetheless, this Court, in Butterworth, followed
and adopted the reasoning of the lead opinion in Priesman. In so doing, this Court held that
when a vehicle is taken by a family member, benefits will only be denied under MCL
500.3113(a) if there was an actual intent to steal the vehicle. Butterworth, supra at 249-250.
Justice Boyle concurred in the result only.
Neither the majority opinion nor the concurring opinion discussed the fact that the Legislature
deliberately chose to use the term "taken unlawfully," rather than any other term to indicate that
a larcenous intent was required to preclude benefits.
Although bound by the rule of law in Butterworth pursuant to MCR 7.215(J)(1), I
disagree with its reasoning. I do not believe there is any authority that permits this Court to limit
the application of MCL 500.3113(a) only to car thefts, given the clear terms adopted by the
Legislature. "Had the Legislature intended to exempt from [MCL 500.3113(a)] all joyriding
incidents, it would have chosen to use a different term than 'unlawful taking,' such as 'steal' or
'permanently deprive.'" Mester v State Farm Mut Ins Co, 235 Mich App 84, 88; 596 NW2d 205
(1999). As noted in Priesman, supra at 66-67, the Legislature refused to follow the language of
the Uniform Motor Vehicle Accident Reparations Act, a model act that excluded coverage for
"converters" of vehicles. The Legislature instead chose a term, "taken unlawfully," that
encompasses crimes other than larceny or stealing of a motor vehicle. "The Legislature is
presumed to have intended the meaning it has plainly expressed, and if the expressed language is
clear, judicial construction is not permitted and the statute must be enforced as written."
Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002). Courts may not
rewrite the plain language of the statute and substitute their own policy decisions for those
already made by the Legislature. DiBenedetto v West Shore Hosp, 461 Mich 394, 405; 605
NW2d 300 (2000).
An unlawful taking does not require an intent to permanently deprive the owner of the
vehicle to constitute an offense. There are two crimes that involve the unlawful driving or taking
of motor vehicles, but do not require the intent to steal. Both MCL 750.413 and MCL 750.414
are generically referred to as "joyriding" offenses. MCL 750.413 prohibits the unlawful driving
away of an automobile; the offense "requires an intent to take or drive the vehicle away but not
to steal the vehicle." Mester, supra at 88, citing People v Davis, 36 Mich App 164, 165; 193
NW2d 393 (1971). In other words, the offense requires the "specific intent to take possession of
the vehicle unlawfully, . . . and punishes conduct that does not rise to the level of larceny where
an intent to permanently deprive the owner of the property is lacking." Mester, supra at 88,
citing People v Lerma, 66 Mich App 566, 568, 570; 239 NW2d 424 (1976). MCL 750.414
prohibits the use of an automobile without authority and without the intent to steal. Butterworth,
supra at 249.
It is uncontested that Strother took the vehicle without permission, but without the
intention to permanently deprive Allen of her vehicle. Accordingly, I believe that even if
Strother were a member of Allen's family, he would be precluded from recovering PIP benefits
pursuant to the plain language of MCL 500.3113(a). Thus, I agree with the lead opinion that the
trial court did not err in granting defendant's motion for summary disposition.
/s/ Kirsten Frank Kelly