Michigan Court of Appeals; Docket #354725; Unpublished
Judges Rick, Murray, and Shapiro; 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In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendant Citizens Insurance Company of the Midwest’s (“Citizens”) motion for summary disposition, seeking dismissal of Plaintiff Joseph Mull’s first-party action against it. The Court of Appeals held that Mull’s taking of the motorcycle he was operating when he crashed into a motor vehicle was unlawful for purposes of MCL 500.3113(a). In so holding, the Court relied on Mull’s testimony that he “wasn’t supposed to take the motorcycle” and did not ask the motorcycle’s owner before doing so “because he knew she would say no.”
Joseph Mull crashed into a motor vehicle while operating a motorcycle belonging to his girlfriend, Melissa Dutz. Mull subsequently filed a claim for no-fault PIP benefits with Citizens—the insurer of the motor vehicle Mull crashed into—but Citizens denied his claim and moved for summary disposition in his resultant first-party action, arguing that Mull was operating an unlawfully taken motorcycle at the time of the crash, for purposes of MCL 500.3113(a). In support of its argument, Citizens relied on statements made by Mull during a recorded interview with one if its representatives on the day of the accident, in which he said, “I took [the motorcycle] like a bad boy[,] I wasn’t supposed to take it[,]” and “It’s taken without her knowledge or permission.” Furthermore, Citizens relied on Mull’s deposition testimony, in which he confirmed that Dutz would not have allowed him to ride the motorcycle if he had asked permission. In response to Citizens’ motion, Mull argued that, because Dutz never explicitly told him that he could not take the motorcycle, a genuine issue of material fact existed as to whether his taking of the motorcycle was unlawful for purposes of MCL 500.3113(a). The trial court denied defendant’s motion, stating only that, “ ‘[t]here is a question of fact as to whether Plaintiff’s use of the motorcycle was lawful.’ ”
The Court of Appeals reversed the trial court’s summary disposition order, observing, preliminarily, that the current standard for determining whether a taking is lawful for purposes of MCL 500.3113(a) is whether the taker “ ‘knew or should have known’ that he did not have authority to use the vehicle.” The Court held that Mull’s deposition testimony and the statements he offered in his conversation with Citizens’ representative on the day of the collision proved, conclusively, that he knew or should have known that he did not have authority to use Dutz’s motorcycle. After all, he admitted as much.
“Plaintiff’s main argument is, because Dutz never explicitly told plaintiff he was not allowed to use the motorcycle, he cannot be precluded from recovery under the statute. Although this argument may have had merit under the previous version of the statute, it fails under the current ‘knew or should have known’ standard. Ahmed, ___ Mich App ___; slip op at 12. Under the applicable statute, the evidence presented reveals no genuine issue of material fact that plaintiff at least should have known he did not have authority to use the motorcycle. Plaintiff and Dutz testified plaintiff’s poor health precluded him from driving the motorcycle, and had not used the motorcycle in many years. Plaintiff admitted he did not have permission to use the motorcycle, and Dutz confirmed that fact. To that point, plaintiff considered himself a ‘bad boy’ for using the motorcycle without Dutz’s permission. The undisputed material facts presented to the trial court, considered in the light most favorable to plaintiff, show plaintiff knew or should have known he was operating the motorcycle unlawfully.”