Universal Underwriters Insurance v. Kneeland , 235 Mich. App. 646 ( 1999 )

599 N.W.2d 519 (1999) 235 Mich. App. 646

UNIVERSAL UNDERWRITERS INSURANCE COMPANY, as subrogee of Betten Toyota, and Betten Toyota, Plaintiffs-Appellants,
v.
Nancy KNEELAND, Defendant-Appellee.

Docket No. 201034.

Court of Appeals of Michigan.

Submitted September 2, 1998, at Grand Rapids. Decided May 28, 1999, at 9:10 a.m. Released for Publication August 30, 1999.

Garan, Lucow, Miller, Seward & Becker, P.C. (by David N. Campos and Daniel S. Saylor), Detroit, for the plaintiffs.

Bensinger, Cotant, Menkes & Aardema, P.C. (by Dale L. Arndt), Grand Rapids, for the defendant.

Before: MARK J. CAVANAGH, P.J., and MURPHY and WHITE, JJ.

WHITE, J.

Plaintiffs, Universal Underwriters Insurance Company and Betten Toyota, appeal by leave granted the circuit court's order affirming the district court's grant of summary disposition to defendant, Nancy Kneeland. We reverse and remand.

I

The facts are undisputed. On November 15, 1993, defendant took her car to Betten Toyota to be repaired. On November 16, 1993, Betten Toyota loaned defendant a "courtesy car," a 1991 Previa, while her car was being repaired. On that date, defendant and a Betten Toyota employee signed a form entitled "Courtesy Car Agreement" that stated five terms:

1. Rental fee ONLY $28.00 per day.

2. Renter agrees to replace gasoline used.

3. Renter agrees to pay cash for rental charge.

4. Renter agrees to assume all responsibility for damages while vehicle is in his possession.

5. Renter agrees not to sublet or loan the car to anyone.

On November 20, 1993, while defendant was driving the Previa and was stopped at an intersection, two other vehicles collided and caused damage to the Previa. There is no claim that defendant was negligent. Universal paid $3,738.49 for the damage to the van, pursuant to an insurance policy it had issued to Betten Toyota, and became subrogated to Betten Toyota's rights. Betten Toyota paid the $1,000 deductible under the policy. Universal requested reimbursement from defendant, which she denied, and then filed suit against defendant alleging breach of contract. Betten Toyota later joined the case,^[1] seeking to recover its $1,000 deductible.

Universal filed a motion for summary disposition, relying on the express terms of the courtesy-car agreement. It reasoned that although the no-fault act abolished tort liability for the damage at issue, M.C.L. § 500.3135; MSA 24.13135, defendant's contractual liability remained. Universal directed the district court's attention to a Kent County case, Universal Underwriters Ins. Co. v. Stout, No. 92-78508 AV, in which, on almost identical facts, the circuit court ruled in favor of the plaintiff insurer.

In response, defendant asserted, inter alia, that plaintiffs were precluded from seeking recovery from defendant under Universal Underwriters Ins. Co. v. Vallejo, 436 Mich. 873, 461 N.W.2d 364 (1990), rev'g 179 Mich.App. 637, 446 N.W.2d 510 (1989), in which the Supreme Court held that an automobile dealership's subrogee could not maintain an action under an implied or express contractual bailment theory to seek recovery from a potential customer who was involved in an accident while test driving a dealership vehicle. Defendant also argues that Betten Toyota committed fraud by failing to inform defendant that she would not be covered under Betten Toyota's insurance, and that the agreement was ambiguous. Defendant requested that summary disposition be denied to plaintiffs and granted to her.

During the time the district court had the matter under advisement, this Court reversed the circuit court's decision in the Stout case. Universal Underwriters Ins. Co. v. Stout, unpublished opinion per curiam, issued February 2, 1996 (Docket No. 171069). The district court followed this Court's decision in Stout and granted summary disposition to defendant, dismissing Universal's claim.

After the parties stipulated that Betten Toyota's claim would be governed by the outcome of the final ruling on Universal's claim, plaintiffs filed an appeal in the circuit court. The circuit court upheld the district court's decision,^[2] and this Court granted plaintiffs' application for leave to appeal.

II

Plaintiffs argue that because defendant was loaned an automobile on the basis of her express agreement to assume all responsibility for any damage to the vehicle, plaintiffs have a valid contractual right of recovery, independent of any rights based on tort or bailment, that is unaffected by the liability-limiting provisions of the no-fault act. Plaintiffs maintain that Vallejo^[3] is not applicable because it involved a bailment, which gives rise only to a fault-based claim for recovery, and did not involve an express contract, and because statutorily mandated liability coverage is different from the optional collision coverage involved here. We agree.^[4]

A

The no-fault act abrogated tort liability arising from the ownership, maintenance, or use of a motor vehicle, except with respect to certain circumstances that are inapplicable here,^[5] but did not abolish contractual liability. Kinnunen v. Bohlinger, 128 Mich.App. 635, 638, 341 N.W.2d 167 (1983); Nat'l Ben Franklin Ins. Co. v. Bakhaus Contractors, Inc., 124 Mich.App. 510, 513, 335 N.W.2d 70 (1983).

In Kinnunen, supra, the plaintiffs agreed to allow the defendants to use a horse trailer to transport a pony. The trailer was damaged in an automobile accident while in the defendants' possession. The plaintiffs brought a suit alleging breach of contract, including breach of an agreement to return the trailer in the same condition as when taken, and breach of a specific contract to repair the damaged trailer. The defendants brought a motion for summary disposition, asserting that the plaintiffs' claim was barred by the no-fault act. The circuit court granted the motion, but this Court reversed, stating in pertinent part:

This case presents a unique question: Does the Michigan no-fault automobile insurance act bar an action for recovery of property damages arising out of a motor vehicle accident, where the parties entered into a legally enforceable contract both before and after the accident making defendants responsible for returning a trailer in an undamaged state?

There is no question that, absent the no-fault act, plaintiffs and defendants had the right to enter into an enforceable contract whereby plaintiffs would promise to provide the benefits of their trailer to defendants in consideration for defendants' promise to assume all liability for any damages that might occur to said trailer while in defendants' possession. Since we are reviewing an order for summary judgment ... we assume that factual developments would establish the existence of a contract or contracts.

However, M.C.L. § 500.3135(2); MSA 24.13135(2) provides that tort liability arising from the ownership, maintenance, or use within the state of a motor vehicle is abolished except as to certain circumstances which are inapplicable herein. It is this provision upon which defendants and the trial court relied in concluding that plaintiffs' action was barred....

... [H]aving reviewed plaintiffs' complaint, we find [unlike the trial court] that plaintiffs premised their theory of recovery upon defendants' failure to comply with the terms of a contractual agreement and not upon defendants' negligent ownership, maintenance, or use of a motor vehicle, although it was through defendants' use of a motor vehicle that damages were incurred. Therefore, we find that plaintiffs' claim is not barred.

In so ruling, we adhere to the principle that statutes which abolish the common law should be narrowly construed. MCL 500.3135; MSA 24.13135 clearly and unequivocally states that "tort liability" is partially abrogated. The term "tort liability" is clear and unambiguous and does not include liability that may arise out of a legally enforceable contract. Had the Legislature intended to abrogate contractual liability as well, the words any "liability arising out of the ownership, maintenance, or use of a motor vehicle" could easily have been substituted. We conclude that under a straightforward reading of the statutory language of § 3135 of the no-fault act, contractual liability is not abolished by said section even where said liability arises out of the ownership, maintenance, or use of a motor vehicle. [Id. at 637-639, 341 N.W.2d 167 (citation omitted).]

Similarly, in Ben Franklin, supra, the plaintiff insurer's subrogor, an equipment company, owned a loader that it loaned to the defendant. The defendant loaded the loader onto its tractor, and, while the loader was being transported on a public roadway, it struck an overpass and was extensively damaged. The plaintiff insurer paid for the damage and then brought an action against the defendant, alleging negligence, breach of express and implied warranties, and breach of the bailment agreement. The defendant argued in a motion for summary judgment that plaintiff's claims were barred by the no-fault act. The circuit court granted the motion. However, this Court reversed, noting:

Plaintiff argues first that since M.C.L. § 500.3123(1); MSA 24.13123(1) excludes damages to the contents of vehicles operated upon a public highway from property protection insurance benefits under the no-fault act, plaintiff is entitled to pursue its common-law tort remedies. We agree that the loader was a content of defendant's tractor at the time of the accident. The damage to the loader, however, arose out of defendant's use of its tractor as a motor vehicle. Tort liability for property damage arising from the use of a motor vehicle in this state has been abolished, unless the damage is intentionally caused. MCL 500.3135; MSA 24.13135; Citizens Ins. Co. of America v. Tuttle, 411 Mich. 536, 544, 309 N.W.2d 174 (1981). Thus, defendant is not liable in tort for damage to the loader which may have been caused by defendant's negligent operation of its tractor.

Plaintiff argues next that even if its cause of action in tort based on alleged negligent operation of a motor vehicle is barred by the no-fault act, its alternative theories state claims upon which relief can be granted. Plaintiff has not taken pains to explain its alternative theories on appeal. While we note that bailment actions sound in property law and breach of warranty actions sound in contract, plaintiff argues on appeal that it is seeking recovery for property damage which arose out of defendant's breach of "its warranties or duties under its contract of bailment". In this case, therefore, it appears that plaintiff's breach of warranties theory is inseparable from its bailment theory, plaintiff's claim being based on contract principles.

We agree that the no-fault act does not abolish contractual liability.... Nothing in the no-fault system relieves a motor vehicle operator of liability which he may have incurred in contract. It was within the powers of the contracting parties to agree on which party would assume the risk of damage to the loader. Plaintiff's theory that defendant breached express and implied warranties in the governing contract of bailment does, therefore, state a claim upon which relief can be granted. [124 Mich.App. at 511-513, 335 N.W.2d 70.][^[6]]

B

These authorities notwithstanding, defendant relies on the Supreme Court's order of peremptory reversal in Vallejo, supra.

1

The defendant in Vallejo was a potential customer of an automobile dealership who was involved in an accident while test driving a vehicle. The dealer's insurer paid for the damage to the vehicle (less the dealer's deductible) and brought a subrogation action against the defendant customer. The complaint alleged that the defendant "expressly and/or impliedly" agreed to return the vehicle "in the same condition as it was when he took possession" and that he "fail[ed] to keep the property safe and free from any damage." 179 Mich.App. at 640, 446 N.W.2d 510. It further alleged:

That the above-described business relationship between Defendant Vallejo and Martin Chevrolet Sales, Inc., constitutes a contract as a result of the express and/or implied bailment agreement reached between the parties. [Id. at 640-641, 446 N.W.2d 510.]

The defendant moved for summary disposition, arguing that the defendant's test drive of the vehicle with the permission of Martin Chevrolet did not constitute a bailor-bailee contract and that the plaintiff's claims were barred by the no-fault act. Id. at 639, 446 N.W.2d 510. The circuit court granted the defendant's motion. This Court reversed, stating that "the [no-fault] act did not abolish contractual liability for losses arising from the use of a motor vehicle." The Court explained:

In the present case, plaintiff sought to impose liability against defendant for losses incurred as a result of defendant's breach of a bailment contract. It follows, therefore, that plaintiff's contract claim was not barred by the no-fault act. [179 Mich.App. at 642, 446 N.W.2d 510.]

This Court further stated:

That a bailment contract may be created under circumstances such as those present in this case is not in any way surprising. Defendant was given the temporary use of the car owned by Martin Chevrolet for the special purpose of test driving it. Clearly, an implicit, though perhaps unwritten, prerequisite of such use was that defendant agreed to return the car in the same condition it was in when driven away from the dealership. [Id. at 643-644, 446 N.W.2d 510.]

The opinion also quotes from 8 Am. Jur. 2d, Bailments, § 62, p. 798 the statement that "the word ``contract' is used in a broad sense." 179 Mich.App. at 644, 446 N.W.2d 510. The Court concluded that the dealer's insurer had stated a valid claim for a "breach of bailment contract." Id. at 645, 446 N.W.2d 510.

The Supreme Court, however, peremptorily reversed:

In lieu of granting leave to appeal, the August 21, 1989, judgment of the Court of Appeals is reversed, and the case is remanded to the Saginaw Circuit Court for entry of judgment in favor of the defendant. MCR 7.302(F)(1). Although the trial court gave the plaintiff insurer numerous opportunities to explain, with specific factual allegations, how its conclusory allegation of an express or implied contract of bailment differentiated this case from any other situation in which a permissive user of a car is involved in a collision and therefore cannot return the car to its owner in an undamaged condition, the plaintiff repeatedly failed to do so. Under these circumstances, we think the trial court correctly granted the defendant's motion for summary disposition. By operation of the pertinent insurance statutes, e.g., M.C.L. § § 257.520(b)(2); MSA § 9.2220(b)(2) ^[7] and M.C.L. § § 500.3009; MSA § 24.13009[^[8]], the defendant appears to have been insured by the plaintiff against the very loss at issue in this case, since a standard automobile policy typically insures such a permissive driver" against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of" a motor vehicle. [436 Mich. 873, 461 N.W.2d 364.]

Relying on this Court's unpublished decision in Stout, defendant argues that the instant case is controlled by Vallejo, and that in Vallejo the Supreme Court concluded that allegations of an express or implied contract of bailment did not differentiate the case from any other where a permissive driver of a car is involved in a collision, so that, in the instant case, the presence of an express contract is irrelevant. We disagree.

2

Vallejo is distinguishable from and does not govern the instant case. Unlike the instant case, there is no indication that there was an express contract in Vallejo. The plaintiff insurer in Vallejo sought to recover from the customer who test drove the vehicle under a common-law bailment theory, 179 Mich.App. at 639, 446 N.W.2d 510 while plaintiffs in the instant case sought to recover under a contract theory based on the written agreement defendant signed stating that she agreed to "assume all responsibility for damages" while the vehicle was in her possession.

Defendant erroneously equates her express agreement assuming all responsibility for damages to the vehicle with the "express or implied contract of bailment" in Vallejo. We do not read the Supreme Court's order in Vallejo as a blanket rejection of all contract claims seeking to hold a permissive user responsible for damage to a borrowed vehicle. Rather, we understand the order as rejecting the insurer's effort to convert a simple, permissive-user, tort-liability case into a contract case by alleging an express or implied contract of bailment, without providing specific factual allegations that would support such a distinction. Stated differently, in any permissive user case, except the unusual one in which a bailment is expressly disavowed, it can be alleged that there is an implied or express contract of bailment, and therefore an enforceable contractual duty. The Supreme Court declined to recognize such broad-based contractual liability in these circumstances. The Court's express reference to the insurer's failure to support with factual allegations its efforts to differentiate the case from any other permissive-user situation implies that if the insurer had successfully demonstrated the existence of an express contractual assumption of responsibility for damage to the vehicle, the defendant might not have been granted summary disposition. Thus, Vallejo did not say that the existence of an express contract would not differentiate the case from any other permissive-user situation. Rather, it suggested that the potential for a different result did exist, but that the plaintiff insurer had failed to provide proof sufficient to support a different result.

We further observe that in a bailment situation, in the absence of a contractual duty to the contrary, a bailee is not an insurer of the property. Gray Eagles, Inc. v. Lucchesi, 37 Mich.App. 322, 323, 194 N.W.2d 373 (1971). Thus, the Supreme Court's reluctance to recognize an exception to the no-fault act's abrogation of tort immunity for such ordinary negligence whenever an implied or express contract of bailment is alleged, without regard to whether there is an express contractual undertaking to assume responsibility, is understandable.

3

Lastly, defendant asserts that in Vallejo the Supreme Court found that recovery by the insurer was precluded because the insurance statutes require coverage for permissive users. To be sure, the Supreme Court's reference in Vallejo to "pertinent insurance statutes, e.g., M.C.L. § 257.520(b)(2); MSA 9.2220(b)(2) and M.C.L. § 500.3009; MSA 24.13009" (see notes 6 and 7, supra,) as operating to provide coverage to the permissive user is troubling in that the distinction plaintiffs draw, correctly in our opinion, between the mandatory coverage addressed in those provisions and the optional collision coverage involved here was present as well in Vallejo. Insurance coverage for vehicle collision damage is not statutorily mandated and is expressly excluded from the requirements of the financial responsibility act. MCL 257.520(g); MSA 9.2220(g). However, the Vallejo Court did not purport to hold that these statutes preclude enforcement of a contractual undertaking that does not contravene statutory requirements or that they require that the permissive user be covered for collision damage. Rather, the Court appeared to assume that the defendant was covered, stating "the defendant appears to have been insured by the plaintiff ... since a standard automobile policy typically insures such a permissive driver...." In the instant case, defendant makes no allegation that she is insured for this risk under the terms of Universal's policy, and the policy is not in the record or otherwise before this Court. Indeed, we express no opinion with regard to issues relating to the actual insurance coverage present in this case.^[9] Further, defendant does not argue that her contractual undertaking violates Michigan's no-fault insurance act, M.C.L. § 500.3101 et seq.; MSA 24. 13101 et seq., see State Farm Mut. Auto. Ins. Co. v. Enterprise Leasing Co., 452 Mich. 25, 549 N.W.2d 345 (1996), and asserts only that the instant case is indistinguishable from Vallejo and Stout, which, defendant argues, hold that no action lies against a permissive user of a loaner vehicle because insurance statutes require the owner of the vehicle to provide coverage that covers permissive users. We reject this argument for the reasons stated and conclude that the district and circuit courts erred in concluding that Vallejo precludes plaintiffs from maintaining an action based on defendant's express contractual undertaking in the instant case.

We reverse the grant of summary disposition in defendant's favor and remand to the district court for entry of judgment in plaintiffs' favor unless it determines that defendant has defenses that have not yet been addressed, in which case the court shall conduct proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[1] The parties stipulated the consolidation of Betten Toyota's claim with that of Universal Underwriters.

[2] The circuit court said:

[T]he no-fault system is designed as a substitute for common law tort remedies. Nothing in the no-fault system relieves a motor vehicle operator of liability that she may have incurred in contract.

* * *

[T]hat's an attractive proposition. And, frankly, I'm inclined, to a large extent, to agree with it. But, on the other hand, it... does not appear to be ... my responsibility to change the law in the state of Michigan.... I feel constrained to follow the opposite line of cases which is most directly set forth in Universal Underwriters Ins. Co. v. Vallejo, supra which is also relied upon, although it's not controlling it certainly is persuasive because it deals with the exact situation that we have here of the Stout decision where a permissive user signed an express contract assuming responsibility for damages.

* * *

And, Stout said, our Supreme Court noted in Vallejo that allegations of an express or implied contract [of] bailment did not differentiate the case from any other where a permissive driver of a car is involved in a collision.

* * *

[T]he reason for all this is the no-fault law, or the statute which is relied on is [MCL] 257.520(b)(2) [MSA 9.2220(b)(2)] which requires that every policy of liability insurance insure the named insured and any other permissive driver liability imposed by law for damages arising out of the ownership maintenance or use of the vehicle. Although the statute cited by the Supreme Court does not specifically apply to collision damages the Supreme Court applied it in Vallejo where collision damages were at issue, and they found the decision to be controlling; I do, as well.

[3] The Stout Court relied on Vallejo in reversing the grant of summary disposition to the plaintiffs. The district court in the instant case relied on Stout, and the circuit court relied on Stout and Vallejo. As noted above, Stout is an unpublished opinion of this Court and is of no precedential value. It is mentioned only because it was relied on by the district and circuit courts, and it will not be discussed further.

[4] We recognize that Vallejo also involved collision coverage but do not read Vallejo as having been decided on the basis of any statutory requirements. See section II B 3, infra.

[5] MCL 500.3135(3); MSA 24.13135(3), formerly M.C.L. § 500.3135(2); MSA 24.13135(2), provides in pertinent part:

Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101 was in effect is abolished except as to:

(a) Intentionally caused harm to persons or property....

(b) Damages for noneconomic loss as provided and limited in subsections (1) and (2).

(c) Damages for allowable expenses, work loss, and survivor's loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections....

(d) Damages up to $500.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (4). [Emphasis added.]

[6] See also Hengartner v. Chet Swanson Sales, Inc., 132 Mich.App. 751, 348 N.W.2d 15 (1984), which involved the question whether the no-fault act or the Motor Vehicle Service and Repair Act, M.C.L. § 257.1301 et seq.; MSA 9.1720(1) et seq., controlled when an owner sued the service facility that repaired the brakes on her automobile. The repair shop relied on § 3135 of the no-fault act to disclaim liability. This Court held that the service and repair act was controlling because it was both more specific and more recent, id. at 756, 348 N.W.2d 15, and further stated:

Finally, we note that MCL 500.3135; MSA 24.13135 does not bar actions based on breach of contract or breach of warranty.... Nonfeasance of a contractual obligation supports only an action on the contract; misfeasance of a contractual obligation or breach of a duty distinct from a contract can support an action on both tort and contract theories.... Here, plaintiff's complaint alleged a contractual relationship between the parties, and the allegations in the complaint are sufficient to support recovery on contract theories as well as on tort theories. [132 Mich.App. at 758, 348 N.W.2d 15 (emphasis supplied).]

[7] Section 520 of the financial responsibility act provides in pertinent part:

(a) A "motor vehicle liability policy" as used in this chapter, shall mean an owner's or operator's policy of liability insurance, certified ... as proof of financial responsibility, and issued ... by an insurance carrier duly authorized to transact business in this state ...

(b) Such owner's policy of liability insurance:

* * *

(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle ... as follows: $20,000 because of bodily injury to or death of 1 person in any 1 accident....

[8] MCL 500.3009; MSA 24.13009 provides in pertinent part:

(1) An automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall not be delivered or issued ... unless the liability coverage is subject to a limit, exclusive of interest and costs, of not less than $20,000 because of bodily injury to or death of 1 person in any 1 accident....

[9] We also observe that it is not alleged that defendant does not have, or that a person in defendant's position would be unable to secure, insurance that would provide coverage for this risk, and no public policy argument is made to us on the basis of such an allegation.