Dgi v. Farm Bureau General Insurance Co of Mich

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
DGI, a legally incapacitated person, by Guardian UNPUBLISHED
PEARL IRWIN, August 24, 2023
Plaintiff-Appellee,
v No. 360819
Wayne Circuit Court
FARM BUREAU GENERAL INSURANCE LC No. 18-004580-NF
COMPANY OF MICHIGAN,
Defendant-Appellant,
and
GREAT WEST CASUALTY COMPANY,
Defendant,
and
OOIDA RISK RETENTION GROUP, INC.,
OWNER-OPERATOR SERVICES, INC., and
CERTAIN UNDERWRITERS AT LLOYD’S,
LONDON, SYNDICATE 4444 CNP,
Defendants-Appellees.
Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
Defendant Farm Bureau General Insurance Company of Michigan appeals as of right the
trial court’s final judgment in favor of plaintiff, a legally incapacitated person, which was entered
after the parties stipulated to the amount of damages. Farm Bureau challenges the trial court’s
denial of its motions for directed verdict and for summary disposition pursuant to MCR
2.116(C)(7) (collateral estoppel). For the reasons stated in this opinion, we affirm.
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I. BACKGROUND
For purposes of this appeal, the underlying facts are not in dispute. Plaintiff, a Michigan
resident, claims he suffered catastrophic injuries during a collision when he was operating a 1992
Kenworth semi-tractor trailer hauling freight in Ohio. The Kenworth tractor was registered and
titled to Droptine Trucking, LLC, of which plaintiff is the sole member. Plaintiff had a no-fault
policy for the tractor, but it was only a bobtail policy, i.e., a policy covering the tractor when it
was not hauling a load under dispatch. This policy was issued by OOIDA Risk Retention Group,
Inc.1
At the time of the accident, the Kenworth tractor was under a long-term lease to Better
Management Corporation, an Ohio corporation. Under the lease agreement, Droptine was to
secure bobtail liability insurance for the tractor, while Better Management was to “furnish and pay
the costs of public liability, bodily injury, property damage, and cargo insurance for the protection
of the public as required by all federal and state laws and regulation.” Great West Casualty
Company had issued an Ohio commercial insurance policy to Better Management that covered the
tractor. However, the policy did not provide Michigan personal protection insurance (PIP) benefits
given that the accident occurred in Ohio.2
Through his wife and guardian, Pearl, plaintiff brought suit seeking no-fault benefits
against Great West, OOIDA, and Farm Bureau, which insures plaintiff’s personal vehicles.
OOIDA was granted summary disposition because plaintiff was hauling a load under dispatch at
1
Plaintiff brought suit against OOIDA, Owner-Operator Services, Inc., and Certain Underwriters
at Lloyd’s of London Syndicate 444 CNP, which are interrelated entities. We will refer to these
entities collectively as OOIDA, as they were during the proceedings in the lower court.
2
The policy contained the following provision:
b. Out-of-State Coverage Extensions
While a covered “auto” is away from the state where it is licensed we will:
(1) Increase the Limit of Insurance for Covered Autos Liability Coverage
to meet the limit specified by a compulsory or financial responsibility law of the
jurisdiction where the covered “auto” is being used. This extension does not apply
to the limit or limits specified by any law governing “motor carriers” or passengers
or property.
(2) Provide the minimum amounts and types of other coverages, such as
No-Fault, required of out-of-state vehicles, by the jurisdiction where the covered
“auto” is being used. [Emphasis added.]
It is undisputed that the accident occurred in Ohio, which does not have a no-fault liability scheme.
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the time of the accident, and, thus, the bobtail policy did not apply. Great West was granted
summary disposition because the policy did not provide PIP coverage for plaintiff’s accident. This
left Farm Bureau as the only remaining insurer in this suit.
The case proceeded to a four-day jury trial. On the second day of trial, Farm Bureau
questioned Pearl regarding plaintiff’s ownership of the Kenwood tractor. Eventually, the trial
court interrupted the testimony and ruled that plaintiff was an owner of the Kenwood tractor on
the basis that he “was on the title to the cab of this truck.” After the trial court ruled that plaintiff
was an owner of the Kenwood tractor, Farm Bureau moved for a directed verdict, arguing that,
because plaintiff was an owner of the tractor, and the tractor was uninsured, plaintiff was precluded
from receiving PIP benefits under MCL 500.3113(b). The trial court denied Farm Bureau’s motion
for directed verdict, determining that plaintiff maintained the necessary security through the carrier
coverage, his bobtail policy, and the Farm Bureau policy. Farm Bureau then agreed to a judgment
in the amount of $1,300,000, subject to Farm Bureau’s right to appeal the trial court’s rulings.
II. DISCUSSION
Farm Bureau argues that the trial court erred by denying its motion for directed verdict
because plaintiff was a constructive owner of the Kenwood tractor and failed to maintain the
required no-fault coverage on the vehicle. Farm Bureau also argues that the trial erred by denying
its motion for summary disposition because plaintiff’s claims were barred by collateral estoppel.
We disagree on both counts.3
A. NO-FAULT COVERAGE
Farm Bureau argues that plaintiff was precluded from receiving PIP benefits under MCL
500.3113(b) because at the time of the accident, plaintiff was an owner of an uninsured vehicle,
the Kenwood tractor, that he was operating during the accident. Plaintiff contends that he was not
a constructive owner of the tractor4 and that the Great West and OOIDA policies provided the
requisite coverage to satisfy MCL 500.3101. Because we agree with plaintiff that he was not a
constructive owner of the tractor in his individual capacity, we need not address whether the
requisite coverage existed.
3
We review de novo a trial court’s decision on a motion for a directed verdict. Taylor v Kent
Radiology, 286 Mich App 490, 499; 780 NW2d 900 (2009). “This Court examines all the evidence
presented and legitimate inferences that may be drawn therefrom in the light most favorable to the
nonmoving party to determine whether there was a question for the factfinder.” Moore v Detroit
Entertainment, LLC, 279 Mich App 195, 201; 755 NW2d 686 (2008). We also review de novo a
trial court’s decision on a motion for summary disposition and its application of the legal doctrine
of collateral estoppel. King v Munro, 329 Mich App 594, 598-599; 944 NW2d 198 (2019).
4
“An appellee, . . . without filing a cross-appeal, may urge an alternative ground for affirmance,
even if the alternative ground was considered and rejected by the lower court or tribunal.” Meisner
Law Group PC v Weston Downs Condo Ass’n, 321 Mich App 702, 713 n 3; 909 NW2d 890 (2017)
(quotation marks and citation omitted).
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“The purpose of the Michigan no-fault act is to broadly provide coverage for those injured
in motor vehicle accidents without regard to fault.” Iqbal v Bristol West Ins Group, 278 Mich App
31; 748 NW2d 574 (2008). “Under the no-fault act, an insurer is liable to pay [PIP] benefits [to
any Michigan resident] for accidental bodily injury arising out of the ownership, operation,
maintenance or use of a motor vehicle as a motor vehicle[.]” Dye by Siporin & Assoc, Inc v
Esurance Prop & Cas Ins Co, 504 Mich 167, 180; 934 NW2d 674 (2019) (quotation marks and
citation omitted). “Although designated as ‘personal protection insurance’ under the no-fault act,
PIP benefits are in fact statutory benefits, arising regardless of whether an injured person has
obtained a no-fault insurance policy.” Id. at 180-181.
MCL 500.3113 precludes a person from receiving PIP benefits if, at the time of the
accident, the owner of the vehicle involved in the accident did not have the proper insurance
coverage. Twichel v MIC Gen Ins Corp, 469 Mich 524, 527; 676 NW2d 616 (2004). Specifically,
MCL 500.3113(b) provides:
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:
* * *
(b) The person was the owner or registrant of a motor vehicle or motorcycle
involved in the accident with respect to which the security required by section 3101
or 3103 was not in effect.
This statutory exclusion for PIP benefits is only relevant to plaintiff’s claim if he is
considered the tractor’s “owner,” which is defined by the no-fault act, in relevant part, as:
(i) 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.
* * *
(iii) A person that holds the legal title to a motor vehicle or motorcycle,
other than a person engaged in the business of leasing motor vehicles or
motorcycles that is the lessor of a motor vehicle or motorcycle under a lease that
provides for the use of the motor vehicle or motorcycle by the lessee for a period
that is greater than 30 days. [MCL 500.3101(3)(l)(i) and (iii).]
A vehicle may have more than one owner under the no-fault act. Ardt v Titan Ins Co, 233 Mich
App 685, 691-692; 593 NW2d 215 (1999).
The parties agree that Droptine was an owner of the tractor as the legal title holder, MCL
500.3101(3)(l)(iii), and that Better Management was an owner of the tractor as a long-term lessee,
MCL 500.3101(3)(l)(i). Farm Bureau, however, argues that plaintiff should also be considered a
constructive owner of the tractor under MCL 500.3101(3)(l)(i) because he had use of the tractor
for a period greater than 30 days. Plaintiff contends that this argument disregards the separate
corporate structure he created for purposes of his trucking business.
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It is well settled that “[a] corporation is its own ‘person’ under Michigan law, an entity
distinct and separate from its owners, even when a single shareholder holds ownership of the entire
corporation.” Hills & Dales v Pantig, 295 Mich App 14, 20; 812 NW2d 793 (2011). See also
Cedric Kushner Promotions, Ltd v King, 533 US 158, 163; 121 S Ct 2087; 150 L Ed 2d 198 (2001)
(“[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations,
powers, and privileges different from those of the natural individuals who created it, who own it,
or whom it employs.”). “Although a limited liability company is not a corporation under Michigan
law, it is nonetheless true that the rules regarding corporate form apply equally to limited liability
companies.” Salem Springs, LLC v Salem Twp, 312 Mich App 210, 223; 880 NW2d 793 (2015).
We have previously set forth the standards governing limited liability companies:
First, a limited liability company is a separate legal entity and “has all powers
necessary or convenient to effect any purpose for which the company is formed.”
MCL 450.4210. Second, ownership in a limited liability company is made up of
one or more members. MCL 450.4102(p). Third, “[a] membership interest is
personal property” and “[a] member has no interest in specific limited liability
company property.” MCL 450.4504(1), (2). Fourth, a person who is a member or
manager of a limited liability company is not ordinarily liable “for the acts, debts,
or obligations” of the company. MCL 450.4501(4). And Fifth, a manager of the
limited liability company “is an agent” of the company.[5] MCL 450.4406.
[Dawley v Hall, 319 Mich App 490, 496-497; 902 NW2d 435 (2017), vacated on
other grounds 501 Mich 166 (2018) (first two alterations in original, some citations
omitted).]
“Under Michigan law, the activities of an agent are ordinarily attributed to the principal and not to
the agent himself.” Id. at 498.
When determining whether a person is an owner, the proper focus is on the nature of the
person’s right to use the vehicle for a period greater than 30 days. Twichel, 469 Mich at 527. The
question thus becomes who is the operative “person” that had the right to use the tractor, Droptine
or plaintiff in his individual capacity. See Booth Newspapers, Inc v Wyoming City Council, 168
Mich App 459, 474; 425 NW2d 695 (1988) (“As a general rule, the term ‘person’ in a statute is
defined as including corporations unless such a construction would be inconsistent with the
manifest intent of the Legislature.”).
As noted: “A member has no interest in specific limited liability company property.” MCL
450.4504(2). See also Hollins v Brierfield Coal & Iron Co, 150 US 371, 383; 14 S Ct 127; 37 L
Ed 1113 (1893) (“[A corporation] holds its property as any individual holds his, free from the
touch of a stockholder who, though equitably interested in, has no legal right to, the property.”).
There is no dispute that the tractor was company property, and therefore the right to use the tractor
belonged to Droptine, separate and distinct from plaintiff as an individual. If there was evidence
that plaintiff used the vehicle for personal use, we would conclude that he had, in his capacity as
Droptine’s principal, given himself permission to use the vehicle for his personal use and agree he
was a constructive owner if that right of use was for a period of more than 30 days. See Ardt, 233
5
As Droptine’s sole member, plaintiff was also the manager. See MCL 450.4401.
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Mich App at 690-691 (holding that “having the use” of the vehicle refers to “proprietary or
possessory usage, as opposed to merely incidental usage under the direction or with the permission
of another.”). However, in this case, the record is devoid of any evidence that plaintiff ever used
or had the right to use the tractor in his individual capacity for a period of 30 days or more.
Plaintiff’s wife, Pearl, estimated that plaintiff drove the tractor for work four to six days a week or
80 to 100 hours a week and was home with the tractor parked in the driveway about two days a
week. The reasonable inference is that when plaintiff was not working, the tractor remained parked
in his driveway and was not used for any personal purpose. Farm Bureau has not proffered any
evidence to the contrary to create a question of fact on this issue. Accordingly, we conclude, the
record evidence in this case does not establish that plaintiff used the tractor under any
circumstances other than in relation to Droptine’s business.
Farm Bureau relies heavily on Pearl’s testimony that plaintiff owned the tractor. Notably,
there is no indication that Pearl was specifically testifying that plaintiff owned the tractor
personally, as opposed to referring to Droptine’s ownership of the vehicle. Regardless, a lay
witness may not testify to a legal conclusion or question of law to be decided by a court. See MRE
701; Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692, 704; 513 NW2d 230 (1994). Farm
Bureau also relies on the tractor being parked in plaintiff’s home driveway when not in use.
However, plaintiff is listed as Droptine’s resident agent and his home address was used as
Droptine’s registered office. See MCL 450.4207(1); MCL 450.4203(1)(c). Therefore, the parking
of the tractor at plaintiff’s home does not by itself indicate personal use or ownership.6
Farm Bureau maintains that precluding recovery of PIP benefits in this case is required
under a straightforward application of MCL 500.3113(b), MCL 500.3101(3)(l), and the statutes’
interpretative caselaw. However, in the published cases relied on by Farm Bureau, there was PIP
coverage under either the bobtail policy or the commercial carrier policy, and so whether the
plaintiff was precluded from recovering under his personal policy was not at issue. See Besic v
Citizens Ins Co of the Midwest, 290 Mich App 19; 800 NW2d 93 (2010); Integral Ins Co v Maersk
Container Service, Co, Inc, 206 Mich App 325; 520 NW2d 656 (1994).7 Accordingly, this issue
must be decided on the basis of the rules regarding corporate form. We respect the corporate form
of a single-member LLC as much as we do for multicorporate entities. See Salem Springs, LLC,
312 Mich App at 223. Farm Bureau does not argue that the corporate veil should be pierced in
6
That plaintiff listed depreciation of the tractor on his personal tax return is also unremarkable.
For income tax purposes, single-member limited liability companies are generally disregarded as
entities separate from its owner. See IRS, Single Member Limited Liability Companies
https://www.irs.gov/businesses/small-businesses-self-employed/single-member-limited-liability-
companies (last accessed August 15, 2023).
7
As far as unpublished opinions, Farm Bureau relies on Guraj v Connecticut Indemnity Ins Co,
unpublished per curiam opinion of the Court of Appeals, issued February 23, 2006 (Docket
No. 257509), but there is no indication that the truck driver in that case had formed a limited
liability company or other entity for his trucking business. To the contrary, this Court in Guraj
noted that “[p]laintiff does not dispute that he was the owner of the semi-truck involved in the
accident . . . .” Id. at 3.
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this case or that any other reason exists for why Droptine’s corporate separateness should not be
respected. For the reasons discussed, it is clear that Droptine was the operative “person” that had
the right to use the tractor and that plaintiff was at all times acting as Droptine’s agent with respect
to his use of the tractor. Accordingly, we affirm the trial court’s denial of a directed verdict on the
basis that plaintiff was not a constructive owner of the vehicle.8
B. COLLATERAL ESTOPPEL
Farm Bureau also argues that the trial court erred in denying its motion for summary
disposition on the basis of collateral estoppel. Specifically, Farm Bureau contends that plaintiff’s
claims were barred by collateral estoppel because his claims for damages for injuries suffered in
the subject accident had already been litigated in a third-party negligence case in Ohio. We
disagree.
“Generally, for collateral estoppel to apply three elements must be satisfied: (1) a question
of fact essential to the judgment must have been actually litigated and determined by a valid and
final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue;
and (3) there must be mutuality of estoppel.” Monat v State Farm Ins Co, 469 Mich 679, 682–
684; 677 NW2d 843 (2004) (citations and quotations omitted). “[W]here collateral estoppel is
being asserted defensively against a party who has already had a full and fair opportunity to litigate
the issue, mutuality is not required.” Id. at 680-681.
Here, the only issue in dispute is whether a question of fact essential to the judgment was
actually litigated and determined by a valid, final judgment. Farm Bureau relies on Monat, in
which the plaintiff was collaterally estopped from bringing a first-party action on the basis of a
previously decided third-party negligence action. See id. at 681, 695. However, in that case, the
jury specifically found that the plaintiff was not injured. Id. In the instant case, the jury in
plaintiff’s third-party negligence case only found that the accident did not proximately injure
plaintiff.
Under Ohio law, “[t]he rule of proximate cause requires that the injury sustained shall be
the natural and probable consequence of the negligence alleged[.]” Jeffers v Olexo, 43 Ohio St 3d
140, 143; 539 NE2d 614 (1989) (quotation marks and citation omitted). “An injury is the natural
and probable cause of the negligent conduct if the injury might and should have been foreseen.”
Inskeep v Columbus Zoological Park Ass’n, 2023-Ohio-288; 207 NE3d 876, 883 (Ohio App,
2023). By contrast, a no-fault insurer is liable to pay PIP benefits “for accidental bodily injury
arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,
subject to the provisions of this chapter.” MCL 500.3105. “[T]he term ‘arising out of’ does not
require as strict a showing of causation as does the concept of proximate cause.” Buckeye Union
Ins Co v Johnson, 108 Mich App 46, 50; 310 NW2d 268 (1981).
8
Whether Farm Bureau may seek to recover the PIP benefits as a subrogee of Droptine is not
before us. See MCL 500.3177. The sole issue in this appeal is whether plaintiff is disqualified
from receiving PIP benefits.
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In a subsequent action, the ultimate issue to be determined must be identical as that
involved in the first action, not merely similar. Rental Props Owners Ass’n of Kent Co v Kent Co
Treasurer, 308 Mich App 498, 529; 866 NW2d 817 (2014). Based on the evidence that Farm
Bureau presented with its motion for summary disposition on the basis of collateral estoppel, it
does not appear that the issue to be decided in this case was identical to the issue involved in the
Ohio case. Unlike the jury in Monat, the Ohio jury did not specifically find that plaintiff had not
been injured. Rather, the jury decided that the accident caused by the defendants did not
proximately cause plaintiff’s injuries. Included in that inquiry was whether plaintiff’s injuries
were a foreseeable and probable consequence of the defendants’ negligence. Jeffers, 43 Ohio St
3d at 143. The jury did not determine whether the injuries arose out of plaintiff’s use of the tractor.
The jury may have determined that plaintiff was in fact injured, but the defendants were not the
“proximate cause” of the injury, or it may have concluded that plaintiff was not injured. However,
based on the evidence Farm Bureau presented, the trial court properly denied the motion. Farm
Bureau failed to adequately support its assertion that the issue to be determined in this case was
identical to the issue involved in the Ohio case. Therefore, the trial court did not err in denying
Farm Bureau’s motion for summary disposition.
Affirmed.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ James Robert Redford
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