DIALLO v. LaROCHELLE , 310 Mich. App. 411 ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
MAHMOUD DIALLO, FOR PUBLICATION
May 5, 2015
Plaintiff-Appellant, 9:10 a.m.
v No. 319680
Allegan Circuit Court
KELLY LAROCHELLE, Personal Representative LC No. 12-051007-ND
of the Estate of KENNETH WROZEK,
Defendant-Appellee,
and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
Before: METER, P.J., and SAWYER and BOONSTRA, JJ.
PER CURIAM.
In this no-fault insurance action, plaintiff (a Georgia resident) appeals the trial court’s
December 4, 2013 order, granting State Farm Mutual Automobile Insurance Company’s motion
for summary disposition under MCR 2.116(C)(8). We affirm.
On April 16, 2011, at approximately 2:45 a.m., Joseph Carrington was driving a truck
southbound in the southbound lane of US 131 in Dorr Township, Allegan County, Michigan.
Plaintiff was the owner of the truck that Carrington was driving. Wrozek was driving his vehicle
northbound in the southbound lane of US 131. Wrozek’s vehicle struck plaintiff’s truck head on.
Plaintiff alleged that at the time of the collision, Wrozek’s blood alcohol level was .20 and he
had morphine in his blood. Plaintiff alleged that Wrozek was a Michigan resident and that State
Farm was Wrozek’s insurer.
Plaintiff notified State Farm by letter that plaintiff had made a claim to State Farm for
damages resulting from losses arising from the collision. In this letter, plaintiff acknowledged
that State Farm had denied this claim and that State Farm had cited MCL 500.3135(3)(e) to
support its position that the maximum amount payable to plaintiff under the no-fault act was
$500. However, plaintiff argued in this letter that State Farm was obligated to pay plaintiff’s
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claim for economic loss pursuant to MCL 500.3135(3)(d). State Farm responded to plaintiff,
stating that MCL 500.3135(3)(d) did not apply to plaintiff’s claim. In response, plaintiff sent
State Farm another letter, again stating that plaintiff’s claim was valid pursuant to MCL
500.3135(3)(d).
Ultimately, plaintiff filed a complaint in the trial court against State Farm and the Estate
of Wrozek.1 In his complaint, plaintiff alleged that Wrozek’s driving at the time of the collision
breached his duty of care to plaintiff, that this breach caused harm to plaintiff, and that State
Farm—as Wrozek’s insurer—was obligated to pay the damages resulting from this harm.
Plaintiff alleged that his damages included the complete loss of his vehicle and loss of income
resulting from plaintiff’s inability to lease the vehicle. Plaintiff argued that he was entitled to
these damages under MCL 500.3135(3)(d). State Farm admitted that it insured Wrozek, but
argued that plaintiff was not entitled to benefits under MCL 500.3135(3)(d) because that statute
did not pertain to collision damage to a motor vehicle or to lost income resulting from such
damage. State Farm asserted that plaintiff’s claim was barred pursuant to MCL 500.3135(3)(e),
which limited plaintiff’s claim to $500; and, because State Farm already paid plaintiff $500 in
damages, State Farm alleged that plaintiff had no claim for further damages. Plaintiff
subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and MCR
2.116(C)(10). State Farm responded with its own motion for summary disposition pursuant to
MCR 2.116(C)(8) and MCR 2.116(C)(10),2 which was granted by the trial court pursuant to
MCR 2.116(C)(8). This appeal followed.
Plaintiff argues that, because he is not seeking personal protection benefits and instead is
suing for economic damages, MCL 500.3165(3)(d), which provides an exception to the no-fault
act’s abolition of tort liability, applies in this case. We disagree. This Court reviews de novo a
trial court’s decision regarding a motion for summary disposition. Latham v Barton Malow Co,
480 Mich. 105, 111; 746 NW2d 868 (2008), reh den 481 Mich. 882 (2008). “A motion for
summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a complaint.” Gillie v
Genesee Co Treasurer, 277 Mich. App. 333, 344; 745 NW2d 137 (2007). “The motion should be
granted if no factual development could possibly justify recovery.” Beaudrie v Henderson, 465
1
LaRochelle, the personal representative of the estate, was not named as a party in the
complaint, because the estate did not exist at the time plaintiff filed the complaint. As a result,
State Farm raised an affirmative defense to the complaint, stating that direct actions against
insurers are prohibited pursuant to MCL 500.3030. However, instead of asking the trial court to
dismiss State Farm from the complaint, making plaintiff open an estate, and waiting for the
estate to give notice to State Farm, the parties ultimately stipulated that the trial court’s ruling
would act as a declaratory judgment regarding State Farm’s liability to the deceased driver rather
than a direct judgment against State Farm, resolving any procedural issues under MCL 500.3030.
After the estate was opened, LaRochelle was named as the personal representative and joined
this case as the defendant-appellee.
2
It is noted that the motion stated that State Farm was moving pursuant to MCR 2.116(I)(2);
however, based on its arguments, it is clear that State Farm actually moved for summary
disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10).
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Mich 124, 130; 631 NW2d 308 (2001). In addition, questions of statutory interpretation and
application are questions of law that this Court reviews de novo. Farmers Ins Exch v AAA of
Mich, 256 Mich. App. 691, 694; 671 NW2d 89 (2003).
“A party injured through the ownership, operation, maintenance, or use of a motor
vehicle must seek recovery within the strictures of the no-fault act.” Gunsell v Ryan, 236 Mich
App 204, 208; 599 NW2d 767 (1999), overruled on other grounds Frazier v Allstate Ins Co, 490
Mich. 381, 384; 808 NW2d 450 (2011). “The owner or registrant of a motor vehicle required to
be registered in this state shall maintain security for payment of benefits under personal
protection insurance, property protection insurance, and residual liability insurance.” MCL
500.3101. With few exceptions, under the no-fault act, MCL 500.3101 et seq., “tort liability
arising from the ownership, maintenance, or use within this state of a motor vehicle with respect
to which the security required by [MCL 500.3101] was in effect is abolished . . . .” MCL
500.3135(3); see also American Alternative Ins Co, Inc v York, 470 Mich. 28, 30; 679 NW2d 306
(2004) (“As part of the automobile no-fault insurance system enacted in 1972, our Legislature at
MCL 500.3135 abolished tort liability for harm caused while owning, maintaining, or using a
motor vehicle in Michigan.”) (citation omitted).
In this case, it is not disputed that plaintiff’s alleged injuries (loss of his truck) arose
through Wrozek’s “ownership, operation, maintenance, or use of a motor vehicle . . . .” Gunsell,
236 Mich. at 208. Therefore, plaintiff “must seek recovery within the strictures of the no-fault
act.” Id. It is also not disputed that the security required by MCL 500.3101 was in effect when
plaintiff sustained his alleged injuries. Therefore, according to the strictures of the no-fault act,
defendants are immune from tort liability unless an exception applies. American Alternative Ins
Co, 470 Mich. at 30. The only issue in this case is whether an exception applies allowing
plaintiff to sue defendant in tort for his economic damages. The exception at issue in this case is
set forth in MCL 500.3135(3)(d), which states as follows:
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 [MCL 500.3101] was in effect is abolished except
as to:
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(d) Damages for economic loss by a nonresident in excess of the personal
protection insurance benefits provided under [MCL 500.3163(4)]. Damages
under this subdivision are not recoverable to the extent that benefits covering the
same loss are available from other sources, regardless of the nature or number of
benefit sources available and regardless of the nature or form of the benefits.
[MCL 500.3135(3)(d).]
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MCL 500.3163(4) states as follows:
If an insurer of an out-of-state resident is required to provide benefits under
subsections (1)3 and (3)4 to that out-of-state resident for an accident in which the
out-of-state resident was not an occupant of a motor vehicle registered in this
state, the insurer is only liable for the amount of ultimate loss sustained up to
$500,000.00. Benefits under this subsection are not recoverable to the extent that
benefits covering the same loss are available from other sources, regardless of the
nature or number of benefit sources available and regardless of the nature or form
of the benefits. [MCL 500.3163(4).]
To resolve the issue whether MCL 500.3135(3)(d) provides plaintiff an exception to the
no-fault act’s abolition of tort liability, MCL 500.3135(3)(d) and MCL 500.3163(4) must be
interpreted. The primary goal of statutory construction is to determine the intent of the
Legislature by reasonably considering the purpose and goal of the statute. Frankenmuth Mut Ins
Co v Marlette Homes, Inc, 456 Mich. 511, 515; 573 NW2d 611 (1998). To determine the
Legislature’s intent, this Court looks at the specific language of the statute. Gauntlett v Auto-
Owners Ins Co, 242 Mich. App. 172, 177; 617 NW2d 735 (2000). Construction of a statute is
appropriate where reasonable minds could differ regarding the statute’s meaning. Id. If the
language of the statute is unambiguous, however, then no further construction is required and
“the statute must be enforced as written.” Sun Valley Foods Co v Ward, 460 Mich. 230, 236; 596
NW2d 119 (1999), reh den 461 Mich. 1205 (1999). “A statute is not ambiguous merely because
a term is undefined. . . .” Mayor of Cadillac v Blackburn, 306 Mich. App. 512, 516; 857 NW2d
529 (2014).
This Court “presume[s] that every word of a statute has some meaning and must avoid
any interpretation that would render any part of the statute surplusage or nugatory.” Mich Farm
Bureau v Dep’t of Environmental Quality, 292 Mich. App. 106, 132; 807 NW2d 866 (2011). “As
far as possible, effect should be given to every sentence, phrase, clause, and word.” Id. When
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“An insurer authorized to transact automobile liability insurance and personal and property
protection insurance in this state shall file and maintain a written certification that any accidental
bodily injury or property damage occurring in this state arising from the ownership, operation,
maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is
insured under its automobile liability insurance policies, is subject to the personal and property
protection insurance system under this act.” MCL 500.3163(1).
4
“Except as otherwise provided in subsection (4), if a certification filed under subsection (1) or
(2) [“A nonadmitted insurer may voluntarily file the certification described in subsection (1).”]
applies to accidental bodily injury or property damage, the insurer and its insureds with respect
to that injury or damage have the rights and immunities under this act for personal and property
protection insureds, and claimants have the rights and benefits of personal and property
protection insurance claimants, including the right to receive benefits from the electing insurer as
if it were an insurer of personal and property protection insurance applicable to the accidental
bodily injury or property damage.” MCL 500.3163(3).
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the Legislature “incorporates by reference a provision of an existing statute,” that provision
becomes part of the statute. Jager v Rostagno Trucking Co, Inc, 272 Mich. App. 419, 423; 728
NW2d 467 (2006), lv den 477 Mich. 1108 (2007). This Court may consult a dictionary to define
terms that are undefined in the statute. Koontz v Ameritech Servs, Inc, 466 Mich. 304, 312; 645
NW2d 34 (2002). Further, “[t]erms contained in the no-fault act are read ‘in light of its
legislative history and in the context of the no-fault act as a whole.’ ” Proudfoot v State Farm
Mut Ins Co, 254 Mich. App. 702, 708; 658 NW2d 838 (2003), vacated on other grounds 469 Mich.
476 (2003) (quotation marks omitted), quoting Guantlett, 242 Mich. App. at 179. Courts should
not abandon common sense when construing a statute. Id.
First, personal protection benefits are described in MCL 500.3107. Amy v MIC Gen Ins
Corp, 258 Mich. App. 94, 98 n 2; 670 NW2d 228 (2003), rev’d on other grounds Stewart v State,
471 Mich. 692 (2004), reh den 471 Mich. 1213 (2004). Therefore, the phrase “personal protection
benefits” needs no interpretation. Hayes v Neshewat, 477 Mich. 29, 35; 729 NW2d 488 (2007)
(“When a statute specifically defines a given term, that definition alone controls.”). Specifically,
personal protection benefits are for expenses such as those incurred for an injured person’s care,
lost income from work that an injured person would have performed within three years after the
accident, and expenses for services in lieu of the services the injured person would have
performed if not for the injury. MCL 500.3107(1). This Court has interpreted the term
“nonresident” under the no-fault act to refer to a person who is a resident of a state other than
Michigan. McGhee v Helsel, 262 Mich. 221, 222; 686 NW2d 6 (2004). The no-fault act does not
define the term “economic loss;” therefore, a dictionary may be used. Koontz, 466 Mich. at 312.
Economic loss is “[a] monetary loss such as lost wages or lost profits.” Black’s Law Dictionary
(10th ed).
Next, under the specific language of MCL 500.3135(3)(d), Gauntlett, 242 Mich. App. at
177, tort liability is abolished except as to “[d]amages for economic loss by a nonresident in
excess of the personal protection insurance benefits provided under [MCL 500.3163(4)].” MCL
500.3135(3)(d). This provision must be looked at as a whole to avoid rendering any part of it
surplusage or nugatory. Mich Farm Bureau, 292 Mich. App. at 132. When looked at as a whole,
it is clear that the provision contains the restrictive clauses “by a nonresident” and “in excess of
the personal protection insurance benefits provided under [MCL 500.3163(4)].” MCL
500.3135(3)(d). According to the last antecedent rule of statutory construction, “a modifying or
restrictive word or clause contained in a statute is confined solely to the immediately preceding
clause or last antecedent, unless something in the statute requires a different interpretation.”
Greater Bethesda Healing Springs Ministry v Evangel Builders & Constr Managers, L.L.C., 282
Mich. App. 410, 414; 766 NW2d 874 (2009). For example, in Greater Bethesda, this Court
interpreted the meaning of MCR 3.602(I), which stated that “[a]n arbitration award filed with the
clerk of the court designated in the agreement or statute within one year after the award was
rendered may be confirmed by the court . . . .” Id. at 412. Pursuant to the last antecedent rule,
this Court concluded that the phrase “within one year after the award was rendered” applied to
the immediately preceding reference to the filing of the award with the court clerk. Id. at 414. It
did not apply to the subsequent reference to confirmation by the court, so as to require that the
confirmation (rather than filing) occur within the one year period. Id.
In MCL 500.3135(3)(d), the phrase “[d]amages for economic loss” is the last antecedent
before the phrases “by a nonresident” and “in excess of the personal protection insurance
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benefits provided under [MCL 500.3163(4)].” MCL 500.3135(3)(d). Pursuant to the last
antecedent rule, the phrases “by a nonresident” and “in excess of the personal protection
insurance benefits provided under [MCL 500.3163(4)]” apply to the phrase “[d]amages for
economic loss.” Greater Bethesda Healing Springs Ministry, 282 Mich. App. at 414. Therefore,
the phrase “[d]amages for economic loss” refers to damages for economic loss “by a nonresident
in excess of the personal protection insurance benefits provided under [MCL 500.3163(4)].” Id.
So, plaintiff as a non-resident could only recover for economic damage in excess of the benefits
provided under MCL 500.3163(4).
This conclusion is supported under the legal maxim known as expressio unius est
exclusio alterius. Hoestman Gen Contracting, Inc v Hahn, 474 Mich. 66, 74; 711 NW2d 340
(2006). This maxim means “the expression of one thing is the exclusion of another.” Id. at 74 n
8. For example, in Gray v Chrostowski, 298 Mich. App. 769, 771; 828 NW2d 435 (2012), the
plaintiff alleged that the defendant intentionally caused her harm by purposefully colliding with
her vehicle. The plaintiff did not maintain insurance on her vehicle, and attempted to bring suit
against the defendant under MCL 500.3135(3)(a), which is an exception to the no-fault act’s
abolition of tort liability and applies in cases of “[i]ntentionally caused harm to persons or
property.” Id. at 773, quoting MCL 500.3135(3)(a). The defendant argued that the plaintiff’s
claim was barred pursuant to MCL 500.3135(2)(c), which stated in relevant part as follows:
“For a cause of action for damages pursuant to [MCL 500.3135(1)] . . . [d]amages shall not be
assessed in favor of a party who was operating his or her own vehicle” without insurance as
required under MCL 500.3101. Id. However, citing the maxim expressio unius est exclusio
alterius, this Court held that because MCL 500.3135(2)(c) exclusively referenced causes of
action under MCL 500.3135(1), this indicated that the Legislature intended to limit the
application of MCL 500.3135(2)(c) solely to claims arising under MCL 500.3135(1). Id. at 777.
This Court noted as follows: “Indeed, had the Legislature intended to limit an uninsured
motorist’s ability to recover damages arising from intentionally caused harm, it could have
included language in [MCL 500.3135(2)] indicating as much.” Id. Therefore, this Court held
that MCL 500.3135(2)(c) did not bar a cause of action under MCL 500.3135(3)(a). Id. at 779.
In this case, the Legislature mentioned “damages for economic loss” and then in the same
sentence stated “in excess of the personal protection insurance benefits provided under [MCL
500.3163(4)].” MCL 500.3135(3)(d). Pursuant to expressio unius est exclusio alterius, this
indicates that the Legislature intended the phrase “damages for economic loss” to refer only to
economic losses in excess of losses provided for through personal protection insurance benefits
under MCL 500.3136(4) and no other economic damages may be pursued under MCL
500.3135(3)(d). Gray, 298 Mich. App. at 777. The term “excess” is defined as “[t]he amount or
degree by which something is greater than another.” Black’s Law Dictionary (10th ed). The
verb “provide” means “to make available” or “to supply or equip[.]” Random House Webster’s
College Dictionary (1991). If the Legislature had intended MCL 500.3135(3)(d) to permit a
cause of action in tort for economic loss separate from consideration of the personal protection
insurance benefits provided under MCL 500.3163(4), it could have used language indicating as
much. Gray, 298 Mich. App. at 777. The fact that the Legislature did not use such language
indicates that the Legislature intended the phrase “damages for economic loss” to refer only to
those damages over or greater than those supplied under MCL 500.3163(4). Id.
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In addition, interpreting MCL 500.3135(3)(d) to allow a nonresident to sue for economic
damages of a type other than the personal protection benefits provided under MCL 500.3163(4)
would be to abandon common sense, and common sense should not be abandoned in statutory
construction. Guantlett, 242 Mich. App. at 179. Specifically, under MCL 500.3135, residents of
Michigan cannot sue for such economic damages; therefore, it would lack common sense to
construe MCL 500.3135(3)(d) as allowing nonresidents to sue for such economic damages. Id.
And, such an interpretation would contravene one of the purposes of the no-fault act, which is to
reduce the number of personal injury tort suits related to motor vehicles. Proudfoot, 254 Mich
App at 707. Interpreting MCL 500.3135(3)(d) in such a way as to contravene this purpose would
violate the rule that “[t]erms contained in the no-fault act are read in light of its legislative
history and in the context of the no-fault act as a whole.” Id. at 708 (quotation marks omitted).
Next, because MCL 500.3163(4) is incorporated by reference into MCL 500.3135(3)(d),
this Court must interpret MCL 500.3163(4) to fully understand the Legislature’s intent in MCL
500.3135(3)(d). Jager, 272 Mich. App. at 423. In other words, MCL 500.3135(3)(d) only applies
to damages for economic loss exceeding the personal protection benefits provided under MCL
500.3163(4); therefore, to determine precisely what damages for economic loss MCL
500.3135(3)(d) refers to, this Court must determine what personal protection benefits are
provided under MCL 500.3163(4). Id. MCL 500.3163(4) states in relevant part as follows:
If an insurer of an out-of-state resident is required to provide benefits under [MCL
500.3163(1)] and [MCL 500.3163(3)] to that out-of-state resident for an accident
in which the out-of-state resident was not an occupant of a motor vehicle
registered in this state, the insurer is only liable for the amount of ultimate loss
sustained up to $500,000.00. [MCL 500.3163(4).]
Because MCL 500.3163(1) and MCL 500.3163(3) are referenced in MCL 500.3163(4),
this Court must ascertain their meanings to interpret the meaning of MCL 500.3163(4). Jager,
272 Mich. App. at 423. The Michigan Supreme Court has interpreted MCL 500.3163(1) to
require insurers licensed to transact automobile liability insurance in Michigan to file a
certificate. Mills v Auto-Owners Ins, Inc, 413 Mich. 567, 569; 321 NW2d 651 (1982). This
certificate certifies that accidental bodily injury or property damage occurring in Michigan
resulting from the use of a motor vehicle by a nonresident whom the insurer insures will be
subject to the no-fault act. MCL 500.3163(1). This Court has interpreted MCL 500.3163(1) to
subject such an insurer to “the rights and immunities under the no-fault act for personal and
property protection . . . .” Tienda v Integon Nat’l Ins Co, 300 Mich. App. 605, 613; 834 NW2d
908 (2013), quoting Tevis v Amex Assurance Co, 283 Mich. App. 76, 85; 770 NW2d 16 (2009).
Likewise, this Court has interpreted MCL 500.3163(3) to mean that, when an insurer files a
certificate pursuant to MCL 500.3136(1), not only is that insurer subject to the rights and
benefits of the no-fault act, but that insurer’s insured and its claimants also have such benefits.
Tevis, 283 Mich. App. at 84-85. Thus, the Legislature intended under MCL 500.3163(4) that
when an insurer is required to provide benefits under the no-fault act pursuant to MCL
500.3163(1) or MCL 500.3163(3) “for an accident in which the out-of-state resident was not an
occupant of a motor vehicle registered in this state, the insurer is only liable for the amount of
ultimate loss sustained up to $500,000.00.” MCL 500.3163(4).
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To summarize, if an insurer of a nonresident is required to provide benefits under the no-
fault act pursuant to MCL 500.3163(1) or MCL 500.3163(3), then the insurer is liable for an
amount no greater than $500,000. MCL 500.3163(4). If an insured person or a claimant has
economic loss that would have been provided under MCL 500.3163(4) as personal protection
insurance benefits but for the $500,000 limit, that person may bring an action in tort under MCL
500.3135(3)(d) for the amount of economic loss above the $500,000 limit unless such damages
are recoverable from other sources. MCL 500.3135(3)(d); Greater Bethesda Healing Springs
Ministry, 282 Mich. App. at 414; Gray, 298 Mich. App. at 771.
In this case, it is clear that MCL 500.3135(3)(d) does not provide plaintiff a cause of
action. Because plaintiff was never provided personal protection benefits under MCL
500.3163(4), it is impossible for plaintiff to be entitled to pursue economic damages in excess of
those provided under MCL 500.3163(4). As discussed supra, MCL 500.3135(3)(d) provides an
exception to the no-fault act’s abolition of tort liability only to the extent a plaintiff is suing for
economic loss that exceeds benefits already provided for under MCL 500.3163(4). Greater
Bethesda Healing Springs Ministry, 282 Mich. App. at 414; Gray, 298 Mich. App. at 771. Because
plaintiff is not attempting to bring suit for economic loss in excess of benefits already provided
for under MCL 500.3163(4), MCL 500.3135(3)(d) does not apply and plaintiff has no cause of
action under that statute. Greater Bethesda Healing Springs Ministry, 282 Mich. App. at 414;
Gray, 298 Mich. App. at 771. Therefore, there is “no factual development [that] could possibly
justify recovery” and the trial court did not err in granting State Farm’s motion for summary
disposition under MCR 2.116(C)(8). Beaudrie, 465 Mich. at 130.
Affirmed. Defendant may tax costs.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Mark T. Boonstra
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