Vincent Smith v. Patonia Merritt

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
VINCENT SMITH, UNPUBLISHED
August 15, 2019
Plaintiff-Appellee,
and No. 342594
Wayne Circuit Court
MICHIGAN PAIN MANAGEMENT, LLC, LC No. 14-009865-NI
PHYSIOFLEX, PLLC, CITY XPRESS, LLC and
OAKLAND PHYSICAL THERAPY,
Intervening Plaintiffs,
v
PATONIA MERRITT,
Defendant,
and
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION,
Defendant/Third-Party Plaintiff-
Appellant,
and
GEICO INDEMNITY COMPANY,
Third-Party Defendant.
Before: LETICA, P.J., and M. J. KELLY and BOONSTRA, JJ.
PER CURIAM.
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Defendant, Suburban Mobility Authority for Regional Transportation,1 appeals by right
the trial court’s February 15, 2018 order reinstating plaintiff’s case and dismissing all claims
pursuant to a contingent arbitration award. Defendant’s appeal challenges the trial court’s earlier
denial of defendant’s motion for summary disposition under MCR 2.116(C)(10). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of injuries sustained by plaintiff when the bus in which he was a
passenger (which was owned by defendant) was struck by a vehicle driven by Patonia Merritt
(Merritt), causing plaintiff to be thrown forward over the seat in front of him. Plaintiff injured
his neck, back, right arm, and right leg in the accident. Plaintiff sought no-fault benefits from
defendant, which denied his claim.2
On July 31, 2014, plaintiff filed a complaint against defendant and Merritt for no-fault
benefits. On June 16, 2015, defendant moved the trial court to add third-party defendant Geico
Indemnity Company (Geico) as a necessary party. Defendant argued that plaintiff was domiciled
with Smith at the time of the accident, and therefore that Smith’s automobile insurer, Geico, was
the highest priority insurer. On July 27, 2015, plaintiff filed an amended complaint to add a
claim against Geico for breach of contract.
Plaintiff testified at his deposition that he was “kind of homeless” at the time of the
accident. He stated that although he had periodically lived with his sister, Julia Smith, for
several years, he had been staying with his girlfriend, Barbara Bailey, at the time of the accident
and only started living again with Smith after the accident; however, during the same deposition,
plaintiff also answered “yes” when he was asked whether he was living with Smith at the time of
the accident. Plaintiff’s employer had both Smith’s and Bailey’s addresses on file for plaintiff.
Most of plaintiff’s mail went to Smith’s address, but his paychecks were sent to Bailey’s address.
Plaintiff’s state identification card listed Smith’s address. Smith testified that plaintiff would
periodically live with her, but that he was not living with her on the date of the accident; yet
plaintiff was “always welcome” at Smith’s home. Plaintiff stored clothing in Smith’s garage and
would stay in a spare bedroom when he stayed with Smith.
On April 1, 2016, the trial court held oral argument on motions for summary disposition
filed by defendant and Geico. Geico argued that plaintiff’s claim was barred by the one-year-
back rule of MCL 500.3145(1). The trial court agreed and dismissed plaintiff’s claim against
Geico. However, the trial court denied defendant’s motion for summary disposition, concluding
that the evidence established that there was a dispute as to whether plaintiff was domiciled with
Smith at the time of the accident, and that plaintiff’s domicile was therefore a question of fact for
the jury.
1
Defendant Patonia Merritt and third-party defendant Geico Indemnity Company are not parties
on appeal; therefore, we refer to defendant Suburban Mobility for Regional Transportation as
“defendant.”
2
Defendant is self-insured.
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The parties subsequently agreed to arbitrate the remaining issues in the case while
defendant appealed the trial court’s ruling on defendant’s motion for summary disposition. The
trial court ultimately granted plaintiff’s motion to reinstate the case, ordering that the claims be
dismissed “pursuant to the Contingent Arbitration Agreement entered into between the parties
and the arbitration awards which may hereinafter be rendered if Defendant SMART’s appeals on
the insurance priority/domicile issues are denied.”
This appeal followed.
II. STANDARD OF REVIEW
“This Court reviews de novo a decision to grant or deny a motion for summary
disposition.” Grange Ins Co of Mich v Lawrence, 494 Mich. 475, 489; 835 NW2d 363 (2013).
“Summary disposition under MCR 2.116(C)(10) is appropriately granted where no genuine issue
of material fact remains and the moving party is entitled to judgment as a matter of law.” Id. at
489-490. A motion for summary disposition under MCR 2.116(C)(10) challenges the “factual
adequacy of a complaint on the basis of the entire record, including affidavits, depositions,
admissions, or other documentary evidence.” Gorman v American Honda Motor Co, Inc, 302
Mich. App. 113, 115; 839 NW2d 223 (2013). “The court must consider all of the admissible
evidence in a light most favorable to the nonmoving party.” Lockwood v Twp of Ellington, 323
Mich. App. 392, 401; 917 NW2d 413 (2018).
III. ANALYSIS
Defendant argues that, as a matter of law, plaintiff was domiciled in Smith’s household
on the date of the accident, that Geico therefore was the highest priority insurer, and that the trial
court accordingly erred by denying its motion for summary disposition.3 We disagree.
“The unambiguous language of MCL 500.3114(1) simply states that a personal protection
insurance policy . . . 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. . . .” Id. “[T]he no-
fault act does not define the term ‘domiciled.’ ” Grange, 494 Mich. at 492. “A domicile
determination is generally a question of fact; however, where the underlying material facts are
not in dispute, the determination of domicile is a question of law for the circuit court.” Id. at
490. “Michigan courts have defined “domicile” to mean the place where a person has his true,
fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has
the intention of returning.” Id. at 493 (citation and quotation marks omitted). “[A] person may
have only one domicile, but more than one residence.” Id. at 494.
To determine domicile, Michigan courts apply a “multi-factor test . . . in which no one
factor is determinative.” Grange, 494 Mich. at 497; see also Workman v Detroit Auto Inter-
3
It is not disputed that, if defendant was found to have been domiciled with Smith, Geico would
be the higher-priority insurer. See MCL 500.3114(1), (4); Corwin v DaimlerChrysler Ins Co,
296 Mich. 242, 254-256; 819 NW2d 68 (2012).
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Insurance Exch, 404 Mich. 477, 496-497; 274 NW2d 373 (1979), and Dairyland Ins Co v Auto
Owners Ins Co, 123 Mich. App. 675, 682; 333 NW2d 322 (1983). In Workman, our Supreme
Court set forth four factors to be considered when determining a person’s domicile:
(1) the subjective or declared intent of the person of remaining, either
permanently or for an indefinite or unlimited length of time, in the place he
contends is his “domicile” or “household” (2) the formality or informality of the
relationship between the person and the members of the household (3) whether
the place where the person lives is in the same house, within the same curtilage or
upon the same premises, (4) the existence of another place of lodging by the
person alleging “residence” or “domicile” in the household. [Citations omitted.]
This Court has also set forth the following factors to determine a person’s domicile:
(1) the person’s mailing address; (2) whether the person maintains possessions at
the insured’s home; (3) whether the insured’s address appears on the person’s
driver’s license and other documents; (4) whether a bedroom is maintained for the
person at the insured’s home; and (5) whether the person is dependent upon the
insured for financial support or assistance. [Williams v State Farm Mut Auto Ins
Co, 202 Mich. App. 491, 494-495; 509 NW2d 821 (1993), citing Dobson v Maki,
184 Mich. App. 244, 252; 457 NW2d 132 (1990), and Dairyland, 123 Mich. App. at
682.]
With regard to the first Workman factor, the subjective or declared intent of the person to
remain at the home he contends to be his domicile or household, plaintiff gave inconsistent
answers at his deposition concerning whether he lived with Smith at the time of the accident (or
whether, alternatively, he lived with Bailey or was homeless). Plaintiff completed an affidavit
and an interrogatory stating that his address, at the time of the accident, was Smith’s address.
The traffic report also listed Smith’s address for plaintiff. Smith testified that the last time
plaintiff lived with her before the accident was in 2011. But Smith testified that, while plaintiff
had stayed with her on occasion in 2013, he did not live with her during the month before the
accident. It is unclear whether plaintiff subjectively intended to remain at Smith’s home; there
was conflicting evidence presented regarding whether plaintiff was even living with Smith on the
date of the accident, much less whether he intended to remain there.
The second and third Workman factors, the formality of the relationship between the
person and other members of the household, and whether the place where the person lives is in
the same house, within the same curtilage or upon the same premises, do not significantly aid the
analysis in this case. Plaintiff and Smith were siblings, and therefore had a personal relationship;
however, based on the testimony of both plaintiff and Smith, plaintiff’s presence in Smith’s
home had a somewhat informal basis; no leases, written agreements, or other evidence of a
formal landlord/tenant relationship were introduced. Smith testified that plaintiff was aware that
he could always stay at her home because he was her brother; however, he came and went from
the home depending on what his living situation was at the time. Smith testified that when
plaintiff lived in her home, he stayed in a spare bedroom.
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The fourth Workman factor, the existence of another place of lodging by the person
alleging residence or domicile in the household, favors a finding that plaintiff was not domiciled
in Smith’s home. On the date of the accident, plaintiff woke up at Bailey’s home, and was
heading back to her home when the bus accident occurred. Plaintiff received his paychecks at
Bailey’s home, and Smith testified that plaintiff had not stayed at her house during the month
before the accident. Therefore, there is evidence that plaintiff had another place of lodging other
than Smith’s home.
The first Dairyland factor, a person’s mailing address, is neutral because there is
evidence that plaintiff used both Smith’s and Bailey’s addresses to receive mail. Plaintiff
testified that he provided both Smith’s address and Bailey’s address to his employer. Plaintiff’s
paychecks at the time of his accident were either being given to plaintiff personally or sent to
Bailey’s address. Plaintiff received a 2013 tax form from his employer that listed Bailey’s
address. However, plaintiff also testified that most of his mail was sent to Smith’s address.
The second Dairyland factor, whether the person maintains possessions at the insured’s
home, favors a finding that plaintiff was domiciled with Smith. Plaintiff testified that he kept
clothing and personal items at Smith’s home at the time of the accident, and that he kept a stereo
in Smith’s garage. Smith testified that she stored a few of plaintiff’s belongings in her garage,
but that she was unaware of what they were because they were kept in boxes.
The third Dairyland factor, whether the insured’s address is listed on the plaintiff’s
driver’s license and other documents, weighs in favor of finding that plaintiff was domiciled with
Smith. Plaintiff had a state identification card at the time of the accident, which listed Smith’s
address. Moreover, most of plaintiff’s mail was sent to Smith’s address.
With regard to the fourth Dairyland factor, whether a bedroom is maintained for the
person at the insured’s home, plaintiff testified that he had his own bedroom at Smith’s home.
Smith testified that she had two bedrooms at her home, and that when plaintiff would stay with
her, he stayed in the spare bedroom; however, Smith testified that plaintiff did not keep personal
belongings in the bedroom because the room was already furnished and plaintiff would use
whatever belongings were already in the bedroom. Therefore, although plaintiff had a place to
stay with Smith, it is not clear whether Smith “maintained” the bedroom for plaintiff or merely
maintained it as a spare bedroom.
The fifth Dairyland factor, whether the person is dependent upon the insured for financial
support or assistance, weighs against finding that plaintiff was domiciled with Smith. There is
no evidence that plaintiff was dependent on Smith for financial support or assistance.
In sum, viewing the evidence in the light most favorable to the non-movant, Lockwood,
323 Mich. App. at 401, there is a genuine issue of material fact regarding plaintiff’s domicile at
the time of the accident. Some factors weigh in favor of finding that plaintiff was domiciled with
Smith at the time of the accident, while other factors weigh against that finding. Because
domicile is generally a question for the jury when there is a factual dispute, Grange, 494 Mich. at
490, we conclude that the trial court did not err by denying defendant’s motion for summary
disposition.
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Affirmed.
/s/ Anica Letica
/s/ Michael J. Kelly
/s/ Mark T. Boonstra
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