Rp Harris Cheema v. Progressive Marathon Insurance Company

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
HARRIS CHEEMA and OVERLAND UNPUBLISHED
TRANSPORTATION, LLC, September 29, 2022
Plaintiffs-Appellants,
v No. 355910
Wayne Circuit Court
PROGRESSIVE MARATHON INSURANCE LC Nos. 18-014071-NF;
COMPANY and STATE FARM MUTUAL 19-003321-NF
AUTOMOBILE INSURANCE COMPANY,
Defendants-Appellees,
and
GOLDEN INSURANCE AGENCY, LLC, and SAM
SAEIDI,
Defendants.
Before: JANSEN, P.J., and CAMERON and RICK, JJ.
CAMERON, J. (concurring in part and dissenting in part).
I agree with the majority that a material question of fact exists as to whether Progressive
Marathon Insurance Company was entitled to rescind the insurance policy and that the common-
law doctrine of election of remedies does not bar Progressive from asserting rescission. However,
I respectfully disagree with the majority’s conclusion that there was a material question of fact as
to whether Harris Cheema was a constructive owner of the Odyssey.
Under MCL 500.3101(3)(l)(i), a constructive owner is any “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.” This Court has previously determined that “having the use” of a motor vehicle “means
using the vehicle in ways that comport with concepts of ownership.” Ardt v Titan Ins Co, 233
Mich App 685, 690; 593 NW2d 215 (1999). The Ardt Court noted that “ownership follows from
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proprietary or possessory usage, as opposed to merely incidental usage under the direction or with
the permission of another.” Id. at 691 (emphasis omitted).
Some factors to consider when determining whether an individual’s use of a vehicle is
sufficient to establish constructive ownership of that vehicle include: (1) whether the purported
owner’s use of the vehicle was regular or periodic, id.; (2) whether use of the vehicle was exclusive
or shared, Kessel v Rahn, 244 Mich App 353, 357-358; 624 NW2d 220 (2001); (3) whether the
purported owner required permission to use the vehicle, Detroit Med Ctr v Titan Ins Co, 284 Mich
App 490, 491-492; 775 NW2d 151 (2009); (4) whether the purported owner performed
maintenance on the vehicle and paid to fuel the vehicle, id. at 492; Kessel, 244 Mich App at 357-
358; (5) where the vehicle was regularly parked, Chop v Zielinski, 244 Mich App 677, 681; 624
NW2d 539 (2001); and (6) whether the purported owner thought that it had a legal right to the
vehicle, id. at 681-682.
In this case, Cheema established Overland in 2017, and Overland’s address was the same
address as Cheema’s address. Cheema was the sole owner of the company, and he alone controlled
the company’s operations. The Odyssey was garaged at Cheema’s residence, and Cheema
possessed the only keys to the vehicle. Cheema testified that he controlled who drove the vehicle
and that he and his brother maintained it.1 Although Cheema initially denied that he used the
Odyssey for anything other than business, he later admitted that he “[m]ostly” used it for business
and acknowledged that he would “sometimes . . . drive the vehicle [to] do errands and stuff.”
Tellingly, at the time of the accident, Cheema was in the process of completing a personal errand.
Although Cheema sometimes transported patients, he testified that he was not paid per hour like
his other employees. Rather, Cheema paid himself a salary of $4,000 per month. Based on this
undisputed evidence, which establishes that Cheema exercised unfettered access and control over
the Odyssey, I would conclude that Cheema was a constructive owner of the Odyssey.
/s/ Thomas C. Cameron
1
Cheema agreed that Overland reimbursed his brother if he paid for maintenance fees out of
pocket.
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