Michigan Court of Appeals; Docket # 339005; Unpublished
Judges Kelly, Meter, and O’Brien per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld the trial court’s grant of summary disposition in favor of Defendant GEIGO General Insurance Company (“GEICO”) regarding whether Plaintiff was disqualified for no-fault benefits for unlawful taking of a vehicle pursuant MCL 500.3113(a). The Court upheld the trial court’s grant of summary disposition because it found that there was no standing permission for Armando Mendoza (“Mendoza”) to use any of the Serba family’s vehicles, Mendoza did not receive permission from any Serba family member to use the vehicle, and the relevant testimony supporting Mendoza’s claim was inadmissible hearsay.
Mendoza was involved in a motor vehicle accident and suffered a traumatic brain injury as a result. Mendoza’s medical providers brought an action for reimbursement for PIP benefits from GEICO. Because of Mendoza’s brain injury he could not remember any of the events leading up to his taking of the Grand Prix involved into the accident, and so the events that led up to the accident were pieced together from the testimony of others.
Mendoza was friends with Lake Serba and staying with the Serba family in the days leading up to the accident. The Serba family consisted of Lake, his father Joseph Serba, his mother Elizabeth Serba, Lake’s brother Logan Serba (“Logan”), and his sister Emily Serba (“Emily”). The family had four vehicles including a 2001 Impala that Lake drove and a 2005 Grand Prix that Emily drove. Prior to the accident it was confirmed that Mendoza drove Lake’s 2001 Impala three times. Once to drive a mutual friend, Vivian Bjork, back home. There was conflicting testimony regarding whether Mendoza got permission to do so, however. Once to drive Lake and himself back to Lake’s house from Kalamazoo. And once several months before the accident. Each time Mendoza drove Lake’s Impala.
On the night of the accident Mendoza had just driven Lake and himself back from Kalamazoo in Lake’s Impala. When they returned to Lake’s house, Lake went to bed and Mendoza stayed up with Lake’s brother Logan playing video games. While the two were playing video games Mendoza twice asked Logan to drive him out to pick up some girls. Both times Logan said no. That night Mendoza took Emily’s 2005 Grand Prix to pick up Kaitlin Keeler (“Kaitlin”) and three other girls. Kaitlin testified that she asked Mendoza whose car he was using, and Mendoza told her that it was Lake’s car and he said he could use it. While driving with the four girls in the Grand Prix, Mendoza lost control of the vehicle and suffered the injuries that resulted in the lawsuit. Plaintiff Spectrum Health Hospitals (“Spectrum”) and others provided care to Mendoza and sought reimbursement from GEICO. GEICO denied benefits asserting that Mendoza was barred by MCL 500.3113(a) because he knowingly took the Grand Prix unlawfully. The trial court found for GEICO and Plaintiff appealed.
The Court of Appeals upheld the trial court’s grant of summary disposition because it found that there was no admissible evidence that Mendoza took the vehicle with permission. The Court explained that under MCL 500.3113(a) a plaintiff is barred from recovery if the plaintiff “knew or should have known that the motor vehicle . . .was taken unlawfully.” Further, the Michigan Supreme Court explained in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 516-17; 821 NW2d 117 (2012) that taken “unlawfully” was contrary to law. The two relevant criminal sections that make taking a vehicle “contrary to law” are MCL 750.413 and 750.414, which prohibit unauthorized taking of a vehicle. The Court explained that both require an actus reus and a mens rea. The Court first found that Mendoza had an actus reus because he was never given express permission to take the vehicle. Logan’s testimony was clear that he denied permission. The other family members all testified that they were asleep when Mendoza took the vehicle. The Court then found that Mendoza did not have a standing order of permission to take the vehicle. Mendoza had only been permitted to drive the Impala three times before the accident and he had never been given permission to drive the Grand Prix. Even if there was a standing order it would have been for the Impala because that was the only vehicle that Mendoza had been given permission to drive. Next, the Court found that Mendoza had a mens rea because he “willfully” took the vehicle when he knew he should not. Logan’s denial created a general denial that Mendoza should have known forbid him from taking the vehicles. Further, he had only been granted permission in the past, thus his taking of the vehicle was willful.
“Every member of the Serba household that interacted with Mendoza on the night of the accident or may have had authority to allow Mendoza to take the Grand Prix testified that they did not give Mendoza permission to take the Grand Prix on the night of the accident. . . .Plaintiffs’ argument is arguably consistent with the known facts, but there is simply no way to reasonably infer that Mendoza had “ongoing permission” to use the Grand Prix on the night of the accident. For instance, there is no evidence that Mendoza routinely took and used the Grand Prix and that the Serbas knew but did not object to it. . . . As explained, no one expressly gave Mendoza authority to take the Grand Prix on the night of the accident. And Mendoza’s use of the Serba family’s vehicles was not so pervasive for him to reasonably believe that he had ongoing permission to take and use them.”
The Court of Appeals then rejected the testimony of Kaitlin as inadmissible hearsay. Plaintiff argued that Kaitlin’s testimony was admissible hearsay because it demonstrated Mendoza’s believed he had permission, or that it demonstrated Mendoza’s state of mind at the time, or it was admissible under the “catch-all” category of 803(24) or 804(b)(7). The Court first rejected Plaintiff’s assertion that Kaitlin’s testimony demonstrated Mendoza believed he had permission because to believe he had permission Mendoza would have needed to have been granted actual permission. Thus, the testimony would be entered to prove the matter asserted and it would be hearsay. The Court next rejected Plaintiff’s assertion that Kaitlin’s testimony demonstrated Mendoza’s state of mind because case law did not allow the exception to be applied to past events. Finally, the Court rejected Plaintiff’s assertion that the testimony fell in the category of the catch all under 803(24) or 804(7) because there was more credible direct evidence that was not hearsay.
“In short, the underlying substantive fact of Mendoza’s statement to Keeler must be true for that statement to be probative of whether Mendoza believed he had permission to take the Grand Prix. . . . Because Mendoza’s statement to Keeler was about past events and did not relate to Mendoza’s “then existing state of mind, emotion, sensation, or physical condition,” it does not fall under MRE 803(3). . . . As explained in Katt, ‘nonhearsay evidence on a material fact will nearly always have more probative value than hearsay statements, because nonhearsay derives from firsthand knowledge. Thus, the residual exception normally will not be available if there is nonhearsay evidence on point.’”
Ultimately, the Court upheld trial court’s grant of summary disposition for GEICO.