20231214_C364924_32_364924.Opn.Pdf ( 2023 )

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
CARLONDA NAISHE SWOOPE, UNPUBLISHED
December 14, 2023
Plaintiff-Appellee,
v No. 364924
Wayne Circuit Court
CITIZENS INSURANCE COMPANY OF THE LC No. 21-011402-NF
MIDWEST,
Defendant-Appellant.
Before: LETICA, P.J., and O’BRIEN and CAMERON, JJ.
PER CURIAM.
In this interlocutory appeal arising under Michigan’s no-fault act, MCL 500.3101 et seq.,
defendant, Citizens Insurance Company of the Midwest, appeals by leave granted1 the order
denying its motion for summary disposition under MCR 2.116(C)(10) (no genuine question of
fact).2 We reverse and remand for further proceedings consistent with this opinion.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Plaintiff, Carlonda Naishe Swoope, was injured in an October 27, 2020 automobile
accident. Plaintiff was driving a car owned by a friend. At the time of the accident, she did not
have a valid driver’s license. Neither plaintiff, nor the car’s owner, maintained an automobile
insurance policy. As a result, plaintiff sought personal protection insurance (PIP) benefits for her
injuries through the Michigan Assigned Claims Plain (MACP). MACP assigned plaintiff’s claim
to defendant.
1
Swoope v Citizens Ins Co, unpublished order of the Court of Appeals, entered March 24, 2023
(Docket No. 364924).
2
Defendant also moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim),
but it is apparent from the order that the trial court denied summary disposition under subsection
(C)(10).
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Defendant denied coverage and plaintiff filed the instant complaint seeking payment for
PIP benefits. Thereafter, defendant moved for summary disposition, arguing there was no genuine
question of fact that plaintiff was unlawfully operating the car. The trial court denied the motion.
Defendant moved for reconsideration, but that motion was denied. This appeal followed.
II. UNLAWFUL OPERATION
Defendant argues the trial court erred in denying its motion for summary disposition under
MCR 2.116(C)(10) because there was no genuine question of fact plaintiff was unlawfully
operating the car, and therefore was not entitled to PIP benefits under the no-fault act. We agree.
A. STANDARD OF REVIEW
A (C)(10) motion for summary disposition “tests the factual sufficiency of the complaint.”
Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating these motions, “a
trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted
by the parties . . . in the light most favorable to the party opposing the motion.” Id. (citation
omitted). If the movant satisfies this burden,
The burden then shifts to the opposing party to establish that a genuine issue of
disputed fact exists. Where the burden of proof at trial on a dispositive issue rests
on a nonmoving party, the nonmoving party may not rely on mere allegations or
denials in pleadings, but must go beyond the pleadings to set forth specific facts
showing that a genuine issue of material fact exists. If the opposing party fails to
present documentary evidence establishing the existence of a material factual
dispute, the motion is properly granted. [Quinto v Cross & Peters Co, 451 Mich
358, 362-363; 547 NW2d 314 (1996).]
This case also involves issues of statutory interpretation, which we review de novo. PNC
Nat’l Bank Ass’n v Dep’t of Treasury, 285 Mich App 504, 505; 778 NW2d 282 (2009).
The paramount rule of statutory interpretation is that we are to effect the
intent of the Legislature. To do so, we begin with the statute’s language. If the
statute’s language is clear and unambiguous, we assume that the Legislature
intended its plain meaning, and we enforce the statute as written. In reviewing the
statute’s language, every word should be given meaning, and we should avoid a
construction that would render any part of the statute surplusage or nugatory.
[Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001)
(citations omitted).]
B. LAW AND ANALYSIS
Under the no-fault act, automobile insurers are required to provide PIP benefits for certain
injuries related to motor vehicle accidents. Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich
245, 252; 901 NW2d 534 (2017). “The no-fault act’s initial scope of coverage for PIP benefits is
set forth in MCL 500.3105(1) . . . .” Id. This statute states that insurers are “liable to pay benefits
for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle . . . .” MCL 500.3105(1). But, “[t]he no-fault act permits an insurer to
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avoid coverage of PIP benefits under certain enumerated circumstances.” Meemic Ins Co v
Fortson, 506 Mich 287, 303; 954 NW2d 115 (2020). MCL 500.3113(a) articulates one of these
circumstances:
A person is not entitled to be paid personal protection insurance benefits for
accidental bodily injury if at the time of the accident any of the following
circumstances existed:
(a) The person was willingly operating or willingly using a motor vehicle
or motorcycle that was taken unlawfully, and the person knew or should have
known that the motor vehicle or motorcycle was taken unlawfully. [MCL
500.3113(a).]
In Ahmed v Tokio Marine America Ins Co, 337 Mich App 1, 10; 972 NW2d 860 (2021),
this Court set forth a three-prong test to evaluate claims under MCL 500.3113(a). Ahmed held that
“the disqualification applies to any person (1) willingly operating or willingly using a motor
vehicle or motorcycle that (2) was unlawfully taken by someone, and (3) the person seeking
benefits knew or should have known that the motor vehicle was taken unlawfully.” Id. (quotation
marks omitted). This “should have known” standard requires a person to determine whether they
have permission to take a vehicle “because a person may not simply take what he knows to be
another’s property without taking any steps to determine if the owner authorized the taking.” Id.
at 27. Indeed, “the mere assumption or supposition that it must be permissible to take a third
party’s property, without more, does not satisfy the ‘should have known’ standard of MCL
500.3113(a).” Id.
“[A]ny violation of the criminal law that leads to a taking of a motor vehicle will constitute
an ‘unlawful taking’ for purposes of MCL 500.3113(a).” Id. at 11 n 5. Violations of criminal law
include certain provisions of the Michigan Vehicle Code, MCL 257.1 et seq. For example, MCL
257.301 concerns the legality of operating a vehicle without a valid driver’s license. It states, in
part: “[A]n individual shall not drive a motor vehicle on a highway in this state unless that
individual has a valid operator’s or chauffeur’s license with the appropriate group designation and
indorsements for the type or class of vehicle being driven or towed.” MCL 257.301(1). Violations
of this statute are considered “unlawful” for purposes of MCL 500.3113(a) because there are
related criminal penalties. See MCL 257.901; see also Ahmed, 337 Mich App at 20 n 8 (“Violation
of [MCL 257.301 and MCL 257.310e(4)] was ‘unlawful’ . . . because there are associated criminal
penalties.”).
Defendant’s motion for summary disposition focused on the second and third prong of the
Ahmed test.3 It moved for summary disposition, in part, because plaintiff admitted she did not
have a valid driver’s license at the time of the accident. In support of this assertion, defendant
attached plaintiff’s deposition testimony in which she admitted she did not have a valid license.
3
On appeal, the parties agree the first prong—whether plaintiff operated the vehicle willingly—is
not at issue.
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This information satisfied the second prong because operating a vehicle without a valid license is
unlawful for purposes of MCL 500.3113(a).
This evidence also satisfied the third prong, whether plaintiff knew or should have known
the motor vehicle was taken unlawfully. Plaintiff testified she knew her license was suspended
when she took the vehicle and therefore she should have understood that driving the vehicle
without a valid license was unlawful. See, e.g., Ahmed, 337 Mich App at 26-27 (drivers should
know their driving status). Plaintiff also admitted during her deposition that the vehicle’s owner
did not give her permission to drive the car. As noted above, the “should have known” standard
is only satisfied if the plaintiff took any steps to determine whether “the owner authorized the
taking.” Id. at 27. By plaintiff’s own admission, she failed to take any steps to ensure the taking
was authorized. Accordingly, defendant satisfied its preliminary burden to demonstrate that there
existed no genuine question of fact for a jury to resolve.
The burden then shifted to plaintiff to demonstrate a genuine question of material fact to
be resolved at trial. Although plaintiff presented some documentary evidence in support of her
response to the motion for summary disposition, none of this evidence showed she had a valid
driver’s license at the time of the accident. Moreover, she offered no evidence showing the
vehicle’s owner authorized her use of the vehicle. She, therefore, failed to meet her burden as the
nonmoving party. Quinto, 451 Mich at 362-363. Summary disposition should have been granted
on this basis, and the trial court erred when it concluded otherwise.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Anica Letica
/s/ Colleen A. O’Brien
/s/ Thomas C. Cameron
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