Waleed Youhanna v. Auto Club Insurance Association ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WALEED YOUHANNA, UNPUBLISHED
April 30, 2019
Plaintiff,
and
MENDELSON ORTHOPEDICS, PC and
OMEGA REHAB SERVICES, LLC,
Intervening Plaintiffs,
v No. 342436
Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, LC No. 16-000282-NF
Defendant,
and
HUDSON INSURANCE COMPANY,
Defendant-Appellant,
and
AMERISURE INSURANCE COMPANY,
Defendant-Appellee.
SILVER PINE IMAGING, LLC,
Plaintiff,
v No. 342736
Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, LC No. 16-004895-NF
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Defendant,
and
HUDSON INSURANCE COMPANY,
Defendant-Appellant,
and
AMERISURE INSURANCE COMPANY,
Defendant-Appellee.
Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.
PER CURIAM.
In these consolidated appeals, defendant Hudson Insurance Company (Hudson) appeals
as of right the trial court’s stipulated order of dismissal, challenging a previous order granting
defendant Amerisure Insurance Company’s (Amerisure) motion for summary disposition. We
affirm.
I. FACTS
This is an action to determine the priority of insurers under Michigan’s no-fault act, MCL
500.3101 et seq. The underlying facts are essentially undisputed. In 2015, plaintiff Waleed
Youhanna purchased a commercial tractor-trailer and registered the truck in his name and the
name of his business, Wally Transportation, Inc. (Wally). Wally purchased from Hudson a
policy of no-fault insurance known as a “bobtail” policy. “Bobtailing” is trucking vernacular for
driving a tractor without an attached trailer. Hunt v Drielick, 496 Mich. 366, 373; 852 NW2d 562
(2014). The purpose of a “bobtail” policy generally is to provide insurance coverage when the
tractor is being operated without a trailer. Id. at 376.
On September 1, 2015, Wally leased the tractor-trailer to Safe Transport, LLC (Safe
Transport), and thereafter plaintiff drove the tractor-trailer to deliver loads for Safe Transport.
Safe Transport had purchased a policy of no-fault insurance issued by Amerisure. The
Amerisure policy listed four tractor-trailers as “covered autos” under the policy, but did not
include the tractor-trailer leased to Safe Transport by Wally. On September 14, 2015, plaintiff
agreed to transport a load in the tractor-trailer for Safe Transport from Livonia to Louisiana.
Early the next morning, while driving the tractor-trailer through Tennessee, plaintiff was injured
in an accident that occurred when another tractor-trailer hit the back of his vehicle.
Plaintiff initiated this action against defendant Auto Club Insurance Association (Auto
Club), from whom plaintiff had purchased a policy of no-fault insurance covering his personal
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vehicle, seeking payment of personal protection insurance (PIP) benefits for his injuries arising
from the collision. Plaintiff’s medical providers, intervening-plaintiffs Mendelson Orthopedics,
PC and Omega Rehab Services, LLC, intervened in the action before the trial court. Plaintiff
thereafter amended his complaint, adding Hudson, and later adding Amerisure, as defendants.
Meanwhile, another medical provider, plaintiff Silver Pine Imaging, LLC, initiated an action
against Auto Club, Hudson, and Amerisure, seeking reimbursement for medical costs incurred in
treating plaintiff. The two actions were consolidated before the trial court.
The three insurers moved for summary disposition. Auto Club moved for summary
disposition under MCR 2.116(C)(10), arguing that it was not first in priority because it insured
plaintiff regarding plaintiff’s personal automobile only. Amerisure moved for summary
disposition under MCR 2.116(C)(8) and (10), arguing that is was not obligated to pay PIP
benefits to plaintiff because the vehicle in question was not covered under its policy with Safe
Transport. Hudson also moved for summary disposition, contending that under MCL
500.3114(3), plaintiff, as an employee of Safe Transport, was entitled to PIP benefits from
Amerisure as the insurer of the furnished vehicle. The trial court granted summary disposition to
Auto Club and Amerisure.1 The trial court thereafter denied Hudson’s motion for
reconsideration of its order granting Amerisure summary disposition. Hudson now appeals to
this Court.
II. DISCUSSION
Hudson contends that the trial court erred in granting Amerisure2 summary disposition.
Hudson argues that the trial court incorrectly determined that plaintiff’s tractor-trailer was not
covered by the Amerisure policy at the time of plaintiff’s accident, and that Amerisure therefore
was not liable for payment of plaintiff’s PIP benefits. We disagree.
A. STANDARDS OF REVIEW
We review de novo the trial court’s decision to grant or deny summary disposition.
Dawoud v State Farm Mut Auto Ins Co, 317 Mich. App. 517, 520; 895 NW2d 188 (2016). A
motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the
complaint; we accept all well-pleaded factual allegations as true and construe them in a light
1
At the hearing on the motions, the trial court stated on the record that it was denying Hudson’s
motion for summary disposition, but our review of the record has not revealed an order to this
effect.
2
We reject Amerisure’s suggestion that this Court lacks jurisdiction to hear these appeals
because Hudson did not file a cross-claim against it in the trial court and is therefore not an
“aggrieved party” under MCR 7.203(A). See Tevis v Amex Assurance Co, 283 Mich. App. 76, 79-
80; 770 NW2d 16 (2009), in which this Court held that, in a priority dispute between two
defendant insurers, the insurer held liable by the trial court to pay PIP benefits had suffered a
particularized injury that affected its pecuniary interest, and it therefore was an aggrieved party
under MCR 7.203(A) with respect to that ruling.
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most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich. 109, 119-120; 597 NW2d
817 (1999). A motion for summary disposition under this section is properly granted when,
considering only the pleadings, the alleged claims are clearly unenforceable as a matter of law
and no factual development could justify recovery. Id. at 120. When reviewing an order
granting summary disposition under MCR 2.116(C)(10), we consider all documentary evidence
submitted by the parties in the light most favorable to the nonmoving party. Id. Summary
disposition pursuant to MCR 2.116(C)(10) is warranted when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Id.
The question of the priority of insurers under the no-fault act is one of statutory
interpretation that we review de novo. See Titan Ins Co v American Country Ins Co, 312 Mich
App 291, 296; 876 NW2d 853 (2015). The construction and interpretation of an insurance
policy is a question of law that we also review de novo. Hunt, 496 Mich. at 372.
B. PRIORITY UNDER THE NO-FAULT ACT
The purpose of the Michigan no-fault act, MCL 500.3101 et seq., is to ensure
compensation of persons injured in motor vehicle accidents. Allstate Ins Co v State Farm Mut
Auto Ins Co, 321 Mich. App. 543, 552; 909 NW2d 495 (2017). The sections of the act governing
priority, MCL 500.3114 and MCL 500.3115, determine the party against whom a person injured
in a motor vehicle accident may claim benefits. Covenant Med Ctr, Inc v State Farm Mut Auto
Ins Co, 500 Mich. 191, 215; 895 NW2d 490 (2017). To determine the priority of insurers liable
for PIP benefits under the no-fault act in this case, we look to MCL 500.3114, which provides, in
relevant part:
(1) Except as provided in subsections (2), (3), and (5), a personal
protection insurance policy described in section 3101(1) [MCL 500.3101(1)]
applies to accidental bodily injury to the person named in the policy, the person’s
spouse, and a relative of either domiciled in the same household, if the injury
arises from a motor vehicle accident. . . .
* * *
(3) An employee . . . who suffers accidental bodily injury while an
occupant of a motor vehicle owned or registered by the employer, shall receive
personal protection insurance benefits to which the employee is entitled from the
insurer of the furnished vehicle.
MCL 500.3101(2)(k)(i), as in effect at the time of plaintiff’s injuries, defined an “owner”
of a vehicle to include “[a] person renting a motor vehicle or having the use of a motor vehicle,
under a lease or otherwise, for a period that is greater than 30 days.” Because plaintiff was an
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employee3 injured while an occupant of a motor vehicle “owned” by Safe Transport by virtue of
its lease with Wally, MCL 500.3114(3) applies to dictate that plaintiff “shall receive personal
protection insurance benefits to which [he] is entitled from the insurer of the furnished vehicle.”
Besic v Citizens Ins Co, 290 Mich. App. 19, 32; 800 NW2d 93 (2010), quoting MCL 500.3114(3).
The question, then, is who is the insurer of the furnished vehicle in this case. Hudson
argues that because Amerisure issued a policy of no-fault insurance to Safe Transport, Amerisure
is the insurer of the vehicle from whom plaintiff is entitled to receive PIP benefits under MCL
500.3114(3) as an employee suffering accidental bodily injury while an occupant of a vehicle
owned by Safe Transport. The parties do not dispute, however, that the Amerisure policy issued
to Safe Transport explicitly covers just four vehicles, none of which is the vehicle Safe Transport
leased from Wally in which Youhanna was injured.
When ascertaining the scope of coverage provided by an insurance policy, traditional
principles of contract interpretation apply, and we determine and give effect to the intent of the
parties. Auto-Owners Ins Co v Churchman, 440 Mich. 560, 566; 489 NW2d 431 (1992). We
read the policy as a whole and construe the language in accordance with the plain and ordinary
meaning of the language to avoid technical or strained construction. Radenbaugh v Farm
Bureau Gen Ins Co, 240 Mich. App. 134, 138; 610 NW2d 272 (2000). Contractual language is
ambiguous if it is reasonably susceptible of more than one interpretation. Barton-Spencer v
Farm Bureau Life Ins Co of Mich, 500 Mich. 32, 40; 892 NW2d 794 (2017). If the contract is
ambiguous, we construe the policy against the insurer in favor of coverage. Radenbaugh, 240
Mich. App. at 139.
Hudson argues that the “after acquired vehicle” provision of the Amerisure policy
provides for coverage in this instance. That section of the Amerisure policy provides, in relevant
part:
B. Owned Autos You Acquire After The Policy Begins
* * *
2. But, if Symbol 46 is entered next to a coverage in Item Two of the
Declarations, an “auto” you acquire will be a covered “auto” for that coverage
only if:
a. We already cover all “autos” that you own for that coverage or it
replaces an “auto” you previously owned that had that coverage; and
b. You tell us within 30 days after you acquire it that you want us to cover
it for that coverage.
3
The parties do not dispute that the priority language of MCL 500.3114 extends to a plaintiff
who works as a self-employed independent contractor as described in Besic v Citizens Ins Co,
290 Mich. App. 19, 32; 800 NW2d 93 (2010).
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Hudson argues that plaintiff’s tractor-trailer falls under this provision because Safe
Transport insured all the automobiles it owned through Amerisure, Safe Transport acquired
ownership of plaintiff’s tractor-trailer through a lease with Wally Transportation, and plaintiff’s
injury occurred within 30 days of Safe Transport acquiring plaintiff’s tractor-trailer. The parties
do not dispute that Safe Transport never notified Amerisure that it wanted to add plaintiff’s
tractor-trailer as a covered vehicle under the Amerisure policy. But Hudson contends that the
after acquired vehicle provision of the policy provided a 30-day grace period in which plaintiff’s
tractor-trailer was automatically covered.
Hudson’s argument relies on this Court’s holding in Hobby v Farmers Ins Exchange, 212
Mich. App. 100; 537 NW2d 229 (1995). There, this Court held that the insurance policy in that
case provided automatic insurance coverage for a replacement vehicle during a 30-day “grace
period” following the acquisition of the replacement vehicle, despite the insurer not having been
notified. The language of the policy in that case stated that coverage was provided for the
replacement of the insured’s vehicle “which is acquired by you after the effective date of this
policy, when it replaces the vehicle described in the Declarations. We must be told about it
within 30 days after the date of acquisition.” Id. at 101. This Court held that the insurer was
obligated under the policy to provide PIP benefits, stating:
This is a classic description of the operation of a grace period during which
insurance is continued in force until it expires by the terms of the contract, i.e.,
thirty-one days after acquisition of a replacement vehicle unless notice has been
given. Where notice is not given within the thirty-day contractual period, as in
this case, the insurance is canceled on the thirty-first day by the terms of the
contract, but that does not void coverage agreed upon by the parties for the first
thirty days after acquisition. When an insured is involved in an accident, the
rights created under the insurance policy become fixed on the date of the accident,
and the parties may not retroactively cancel the coverage. Id. at 104.
However, this Court observed that the insurer in Hobby “contracted to provide insurance
coverage with or without notice for thirty days, so its risk is not in any way increased or altered
by this holding,” and that the policy language in that case did not “provide that the automatic
insurance agreement is void or does not apply if notice is not furnished.” Id. at 103. In doing so,
this Court distinguished the language of the policy in Hobby from the language of the policy in
Auto-Owners Ins Co v Winter, 188 Mich. App. 230; 469 NW2d 314 (1991). In Winter, the
defendant was involved in an accident in a newly acquired vehicle. The insurance policy in that
case provided for coverage for newly acquired vehicles, but also provided that the policy did not
apply “unless the named insured or spouse notifies the Company within 30 days following the
acquisition of an additional automobile. . .” Id. at 232.
In this case, the Amerisure policy specifies that an automobile that was acquired after the
policy went into effect will be covered under that policy “only if” two conditions are met, one
condition being that Safe Transport notify Amerisure to add the newly acquired vehicle to the
policy. Unlike the situation in Hobby, which involved a replacement vehicle, the tractor-trailer
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at issue in this case was, like the vehicle involved in Winter, an after-acquired vehicle.4 The
policy language in this case is also distinct from the policy language in Hobby and comparable to
the policy language of Winter, with the policy in Winter stating that coverage does not take effect
“unless” notice is given the insurer, and the policy here stating that it takes effect “only if” notice
is given. The effect of these provisions is the same—coverage will not occur in the absence of
notice. We therefore conclude that, as in Winter, and unlike Hobby, the policy language in this
case did not create a grace period that affords coverage despite the failure of Safe Transport to
advise Amerisure of its intention to add the vehicle to the existing policy.
We also reject Hudson’s argument that the after acquired vehicle provision of the
Amerisure policy is ambiguous because it is equally susceptible of meaning either that coverage
was automatically extended for the newly acquired vehicle during the 30-day notice period, or
that coverage was not provided unless Safe Transport notified Amerisure within 30 days to add
the vehicle to the policy. Again, a contractual term is ambiguous only if it is equally susceptible
of more than one meaning. Barton-Spencer, 500 Mich. at 40. Here, the Amerisure policy
provides that an automobile that is acquired after the policy becomes effective may be covered
under that insurance policy “only if” certain conditions are met. Because we perceive only one
meaning of this language, we decline to find it ambiguous.
Affirmed.
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
/s/ Michael F. Gadola
4
One can readily understand why an insurer would insist upon notice before agreeing to increase
its risk by covering an additional, after-acquired, vehicle, though the language of the Amerisure
policy at issue here appears to require notice for both replacement and after-acquired additional
vehicles.
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