Opinion
360091 360098
07-13-2023
OMAR AKEEM AMOS, Plaintiff-Appellee, v. PROGRESSIVE MARATHON INSURANCE COMPANY, Defendant-Appellant, and MICHIGAN HEAD &SPINE INSTITUTE, P.C., and ASCENSION ST. JOHN HOSPITAL, Intervening Plaintiffs-Appellees, and FARMERS INSURANCE EXCHANGE and USAA CASUALTY INSURANCE COMPANY, Defendants. OMAR AKEEM AMOS, Plaintiff-Appellee, and MICHIGAN HEAD &SPINE INSTITUTE, P.C., and ASCENSION ST. JOHN HOSPITAL, Intervening Plaintiffs-Appellees, v. PROGRESSIVE MARATHON INSURANCE COMPANY and FARMERS INSURANCE EXCHANGE, Defendants, and USAA CASUALTY INSURANCE COMPANY, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 20-012063-NF
Before: RICK, P.J., and SHAPIRO and LETICA, JJ.
PER CURIAM.
In these consolidated interlocutory appeals, in Docket No. 360091, defendant Progressive Marathon Insurance Company appeals by leave granted the trial court's order denying its motion for summary disposition. In Docket No. 360098, USAA Casualty Insurance Company also appeals by leave granted and challenges the order denying Progressive's motion for summary disposition, which USAA had adopted. We affirm.
I. BACKGROUND
On the evening of May 24, 2020, plaintiff Omar Amos took a bus to the home of his mother, Venus Amos, in Detroit. Venus was asleep when Omar arrived. Venus owned two vehicles, a 2011 Dodge Ram, insured by Progressive, and a Ford Edge, insured by USAA. Venus had left the keys to the Dodge Ram sitting out that evening. Omar testified that after entering Venus's house he saw the keys to the Dodge Ram and took them. It is undisputed that Venus did not give Omar express permission to drive her vehicle that night. Omar was driving the pickup truck on 8 Mile Road in Warren when he lost control and crashed into a light pole and a building. Omar was taken to Ascension St. John Hospital, which is an intervening plaintiff in this case. Venus woke up at approximately 9:00 a.m. the morning after the accident, and she discovered the truck was not parked in the driveway where she had left it and her keys were gone. Shortly after, Omar called Venus from the hospital and told her about the accident and that he was about to have surgery. Physicians employed by intervening plaintiff Michigan Head &Spine Institute (MHSI) performed spinal surgery on Omar's neck and upper back.
Venus filed a police report in which she reported the truck as stolen. She testified that she did so only because Progressive agents told her to, and she either withdrew her complaint with the Detroit Police Department or declined to press criminal charges against Omar. Progressive initially treated Venus's claim as a theft claim, but changed the type of claim to a collision after Venus informed Progressive she would not seek charges against Omar.
Omar sought personal protection insurance (PIP) benefits from Progressive, and Progressive denied the claim. Omar brought suit against Progressive, and the operative complaint also names USAA and Farmers Insurance Exchange as defendants. MHSI also filed a complaint against Progressive, USAA, and Farmers, alleging that they were liable to reimburse MHSI for the services it provided to Omar arising from the accident.
Omar applied for PIP benefits through the Michigan Automobile Insurance Placement Facility (MAIPF), and the MAIPF assigned his claim to Farmers Insurance Exchange.
Progressive moved for summary disposition under MCR 2.116(C)(10) (no question of material fact), arguing that Omar was ineligible for benefits under the no-fault act pursuant to MCL 500.3113(a) because Omar had unlawfully taken Venus's vehicle the night of the accident by taking it without Venus's permission. Progressive also argued that Omar unlawfully took Venus's vehicle by illegally driving it while unlicensed, in violation of MCL 257.301(1), and in violation of Michigan's operating under the influence statute, MCL 257.625. USAA also moved for summary disposition of Omar and MHSI's claims, adopting Progressive's arguments. Omar and MHSI argued in response that MCL 500.3113(a) did not bar their claims because Omar had previously driven Venus's truck and she had never denied him permission to do so.
Farmers filed a response to Progressive's summary disposition, which also concurred with Progressive's arguments.
After hearing oral argument, the trial court denied Progressive's and USAA's summary disposition motions on the record. The court ruled that there was a question of fact whether Omar's taking of the vehicle was unlawful for the reasons stated by Omar and MHSI. The trial court denied both Progressive and USAA's motions for reconsideration.
Following the denial of Progressive's motion for reconsideration, the trial court entered a stipulated order allowing Ascension to intervene in this case.
II. ANALYSIS
Progressive and USAA argue that the trial court erred when it denied their motions for summary disposition because there is no question of material fact that Omar unlawfully took Venus's vehicle and his claim for PIP benefits is barred by MCL 500.3113(a). We disagree.
We review de novo a trial court's decision on a motion for summary disposition. See El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a claim and is properly granted when the proffered evidence fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hoffner v Lanctoe, 492 Mich. 450, 459; 821 N.W.2d 88 (2012). A genuine issue of material fact exists when the record leaves open issues of fact over which reasonable minds may differ. Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018). A court "considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, in a light most favorable to the party opposing the motion." Sanders v Perfecting Church, 303 Mich.App. 1, 4; 840 N.W.2d 401 (2013).
MCL 500.3113(a) 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:
(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 Priesman v Meridian Mut Ins Co, 441 Mich. 60; 490 N.W.2d 314 (1992), a plurality of the Supreme Court held that a fourteen-year-old son did not lose his statutory right to PIP benefits under MCL 500.3113(a) by taking his mother's automobile without her permission while she slept. The Court determined that the Legislature did not intend for MCL 500.3113(a) to preclude recovery of benefits in family "joyriding" situations:
Legislators generally are also parents and sometimes grandparents. Some may have had experience with children, grandchildren, nephews, nieces, and children of friends who have used a family vehicle without permission. Some may have themselves driven a family vehicle without permission. [Id. at 68.]
The Court was therefore not persuaded that the "evil" with which Legislature was concerned with in enacting MCL 500.3113 was
teenagers who "joyride" in their parents' automobiles, especially automobiles covered by no-fault insurance, [considering] that countless persons would be entitled, under the legislation they were drafting, to no-fault benefits without regard to whether they are obliged to purchase no-fault insurance or, if obliged to insure, do in fact do so. [Id.]
20 years later, however, in a 4-3 decision, the Supreme Court overruled Priesman and its progeny in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich. 503; 821 N.W.2d 117 (2012). In that case, the Court determined that the "the family-joyriding exception is not supported by the text of MCL 500.3113(a)." Id. at 533. The Court held "that the use of the phrase 'a person' in MCL 500.3113(a) clearly and plainly includes a family member who has taken a vehicle unlawfully, thereby precluding that person from receiving PIP benefits." Id. at 509. The Court also held "that any person who takes a vehicle contrary to a provision of the Michigan Penal Code-including MCL 750.413 and MCL 750.414, informally known as the 'joyriding' statutes- has taken the vehicle unlawfully for purposes of MCL 500.3113(a)." Id. Michigan's joyriding statutes, MCL 750.413 and MCL 750.414, both deem it unlawful to take a motor vehicle without authority. Id. at 518. "Because a taking does not have to be larcenous to qualify as unlawful, the phrase 'taken unlawfully' in MCL 500.3113(a) applies to anyone who takes a vehicle without the authority of the owner, regardless of whether that person intended to steal it." Id.
Spectrum Health involved consolidated cases. In Spectrum Health, a son was expressly forbidden by his father from driving the father's vehicle. The father allowed the son's girlfriend to drive the vehicle but also instructed her that the son was not allowed to drive the vehicle. Nonetheless, the girlfriend gave the son the car keys and he later crashed the vehicle into a tree. Id. at 512. In the other case, Progressive Marathon Ins Co v DeYoung, a wife had expressly prohibited her husband from driving vehicles owned by the wife given the husband's multiple drunk-driving convictions. Despite these "standing instructions," the husband used the vehicle while intoxicated and crashed the vehicle. Id. at 513. Applying its holdings in that case, the Spectrum Health Court held that both claimants were barred by MCL 500.3113(a) from recovering PIP benefits because they had been expressly prohibited from driving the respective vehicle. See id. at 524-525, 537-538.
Relying on Spectrum Health, Progressive and USAA argue that Omar unlawfully took Venus's vehicle contrary to MCL 750.413 and MCL 750.414. There is no dispute in this case that Omar was willingly using the vehicle. The question is whether did so unlawfully, i.e., without authority, and whether he knew or should or have known that it was unlawful.
In relevant part, MCL 750.413 provides that "[a]ny person who shall, wilfully and without authority, take possession of and drive or take away . . . any motor vehicle, belonging to another, shall be guilty of a felony ...." MCL 750.414 similarly provides, in relevant part, that "[a]ny person who takes or uses without authority any motor vehicle without intent to steal the same . . . is guilty of a misdemeanor ...."
Omar argues that this case is materially distinguishable from the other family joyriding cases because, unlike the two claimants in Spectrum Health for instance, he was not expressly prohibited from using the vehicle. The insurers argue that this is irrelevant because Omar had not obtained express permission from his mother to use the vehicle on the night in question. However, no Michigan court has held that a family vehicle is necessarily taken without authority if a family member uses the vehicle without obtaining express permission. Even though the "family joyriding exception" has been overruled, it remains true that the permissibility of one family member borrowing a vehicle from another is based on the nuances of the particular familial relationship and those relationships, while not dispositive, are highly relevant to the question of implied authority and the driver's understanding . It is not for courts to declare that families may not allow use of a vehicle through implied permission based on the circumstances. The statute's language does not require that a family member obtain express permission each and every time before using another family member's vehicle. Moreover, it is not enough that a family member may have known that they did not have permission. The Legislature could have stated that the driver merely needed to know that he was taking the vehicle "without permission." Instead, it required knowledge that the act was "unlawful." MCL 500.3113(a). It is clear that if an unrelated person takes someone else's vehicle without permission they would know that doing so is unlawful. And the same is true when a person uses a rental vehicle that they have not rented and as to which the rental company has not granted express permission. However, it is not always true in the case of a family member who could reasonably conclude that using a family member's car without explicit permission would be acceptable to the owner. Accordingly, when there has not been an express prohibition by the vehicle's owner, whether there was "authority" to use the vehicle will necessarily turn on the circumstances of each case and generally require a factual determination.
In this case, Omar testified that he had used his mother's vehicle multiple times and that on each occasion he had asked for permission before doing so. Omar believed that he did need Venus's permission to use the vehicle, but there was never a time when he asked for permission and she denied the request. Further, the record is unclear whether Venus ever expressed any policy regarding the vehicle to Omar, and MCL 500.3113(a) "examines the legality of a taking from the driver's perspective[.]" Spectrum Health, 492 Mich. at 522. From Omar's perspective, his mother had granted him permission to use the vehicle every time he had asked to do so. When he arrived at his mother's home on May 24, 2020, she was sleeping and therefore he could not ask for her permission without waking her. In that sense, this case presents the question whether Omar should have awoken his sleeping mother to ask for permission to use the vehicle, or whether considering the circumstances and his history with the vehicle, he reasonably believed that he had implied permission to do so. Resolution of familial situations such as this is plainly a matter best left to a jury.
Progressive and USAA argue that a driver may not assume they had permission to use a vehicle under the "should have known" standard as articulated in Ahmed v Tokio Marine America Ins Co, 337 Mich.App. 1; 972 N.W.2d 860 (2021). In that case, the plaintiff was injured while driving his wife's rental car and sought PIP benefits from the defendant. Id. at 4-5. Because the plaintiff was an unlicensed driver, he was expressly forbidden by the rental car agreement from driving the car. Id. Thus, the plaintiff was expressly unauthorized to drive the car by the vehicle's owner, i.e., the rental car company, but he did not have actual knowledge that he lacked authority. Id. This Court concluded that,
[u]nder the "should have known" standard, plaintiff was obligated to determine the scope of the authorization that the owner, Meade Lexus, had set under the rental agreement for a nonparty such as himself to take and drive the car. Stated another way, plaintiff knew that his wife, who was the party to the contractual agreement with Meade Lexus, was not the owner of the car and that any authority to use the car could only be based on the terms set by the owner. Thus, before simply driving off, plaintiff was obligated to learn the terms of the rental agreement; he "should have known" the terms 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. 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. at 26 (emphasis added).]
Ahmed is materially distinguishable on the ground that there was a legally binding document that, in effect, expressly prohibited the plaintiff from operating the vehicle. As discussed, Omar was not expressly prohibited from driving his mother vehicle's and there was certainly no document he could consult to determine whether she would deny permission on any particular occasion. And his mother was the owner of the vehicle, not a "third party" like the renter in Ahmed. Further, Omar's use of the vehicle was based on more than a "mere assumption." Id. That decision was informed by his history with the vehicle, including that he each time he had asked to use the vehicle his mother said yes. Progressive and USAA's attempt to import isolated statements from Ahmed-decided in the context of rental car agreements-and import them to the present case is unpersuasive. Indeed, the insurers' reliance on Ahmed in this manner is simply a different way of arguing that a plaintiff must obtain express permission each time they use a family member's vehicle. For the reasons discussed, this position is untenable and it ignores the reality that families often do not articulate hard-and-fast rules that must be followed in all circumstances.
We acknowledge that there are some inconsistencies in Omar and Venus's testimony and that the record allows for reasonable inferences that can be drawn against them. However, at this stage we must view the evidence in a light most favorable to Omar as the nonmoving party. Doing so, we conclude that reasonable minds could differ whether the vehicle was taken unlawfully and whether Omar knew or should have known that the taking was unlawful.
Progressive and USAA alternatively argue that Omar unlawfully took Venus's vehicle by driving while unlicensed in violation of MCL 257.301(1), and in violation of Michigan's operating under the influence statute, MCL 257.625. However, this Court's decision in Monaco v Home Owners Ins Co, 317 Mich.App. 738; 896 N.W.2d 32 (2016), makes clear that MCL 500.3113(a) only prohibits PIP benefits on the basis of an unlawful taking of a vehicle and not when one unlawfully operates the vehicle of another.
Omar's blood alcohol level when taken at the hospital was above the legal limit.
Monaco involved a situation where the injured claimant, who was 15 years old, had a permit to drive that would only authorize her to drive if accompanied. She instead drove a family vehicle unaccompanied and was injured. Id. at 741-742. Her mother initially testified that the claimant took the car without permission, but then changed her testimony and stated that she had given her daughter permission to take the car. Id. at 743. The insurer argued that MCL 500.3113(a) barred recovery of PIP benefits because it was unlawful for the mother the give the daughter permission to drive under the Michigan Vehicle Code (MVC), MCL 257.1 et seq. Id. at 749. This Court disagreed, observing that
[t]he distinction between unlawfully taking a motor vehicle and unlawfully using a vehicle was recognized in Rambin v Allstate Ins Co, 495 Mich. 316, 331; 852 N.W.2d 34 (2014), wherein the Supreme Court stated that "the unlawful use of a vehicle . . . is not relevant under the unlawful taking language in MCL 500.3113." And this Court has observed that, with respect to the language in MCL 500.3113(a), "[c]learly, the terms 'take' and 'use' are not interchangeable or even synonymous; obtaining possession of an object is very different from employing that object or putting it into service." Amerisure Ins Co v Plumb, 282 Mich.App. 417, 428; 766 N.W.2d 878 (2009), abrogated in part on other grounds by Rambin, 495 Mich. at 323-324 n 7. [Monaco, 317 Mich.App. at 749.]
Accordingly, this Court held that although it was undisputed that the daughter's use of the vehicle violated the MVC, those violations had no bearing on the daughter's authority to take the vehicle and therefore did not implicate MCL 500.3113(a). Id. at 749-750.
Applying Monaco to the instant case, that Omar had a suspended license and was intoxicated is not relevant to whether the taking of the vehicle was unlawful. While Omar's use of the vehicle may have been unlawful, that is distinct from an unlawful taking. Accordingly, Progressive and USAA's argument that Omar's violations of the MVC render the taking of the vehicle per se unlawful is without merit. We acknowledge that the Ahmed Court expressed disagreement with Monaco and contemplated the need for a conflict panel regarding that decision. See Ahmed, 337 Mich.App. at 19 n 8. However, we do not share those concerns. In Spectrum Health, the Supreme Court stated that "the term 'unlawful' can only refer to the Michigan Penal Code[.]" Spectrum Health, 492 Mich. at 517 n 22. The Supreme Court further explained that a vehicle is taken unlawfully "if it is taken without the authority of its owner." Id. at 518 n 25. Accordingly, this Court's holding in Monaco that the unlawful use or operation of a vehicle under the MVC has no bearing on the phrase "taken unlawfully" as used in MCL 500.3113(a) appears to be a straightforward application of the Supreme Court's statements in Spectrum.
Although Monaco, 317 Mich.App. 738, was decided under the previous version of MCL 500.3113(a), the current statute does not lend itself to the Ahmed Court's interpretation that driving the vehicle of another in contravention of the MVC constitutes an unlawful taking. There is nothing from the text of 2014 PA 489 to indicate that the Legislature intended to expand the definition of "taken unlawfully" to include using the vehicle of another in violation of the MVC.
Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
LETICA, J. (dissenting).
I respectfully dissent. The circuit court erred when it denied Progressive and USAA's motions for summary disposition and subsequent motions for reconsideration because there was no genuine issue of material fact on this record that plaintiff Omar Amos (Omar) was willfully operating a motor vehicle he unlawfully took from his mother Venus and that he knew or should have known he took it unlawfully.
To distinguish plaintiff Omar Amos from his mother Venus Amos (Venus), I refer to them by their first names.
I agree with the majority's recitation of the procedural background and its standard of review.
On Sunday May 24, 2020, the day before Memorial Day, Venus went to bed at about 8:30 p.m. Thirty-two-year-old Omar recalled taking the 8-Mile Grand River bus to Venus's house as the sun was setting. By 10:12 p.m., a crash involving Venus's vehicle was reported to police. Omar, whose driver's license had been suspended for years, had been driving Venus's vehicle. Omar rear-ended a vehicle stopped for a red light, jumped a curb, and toppled a light pole before striking a building. Two additional adult occupants in Venus's vehicle, Omar's female acquaintance and her brother, fled after the crash. The acquaintance's brother returned to the scene and was transported to the hospital. Omar was seriously injured and subsequent hospital testing showed that he was positive for tetrahydrocannabinol (THC) and had a 0.171 blood-alcohol level, twice the legal limit.
Omar testified that he spent his time equally between the homes of his mother and the mother of his child. Earlier, however, Omar told a Progressive employee that he did not often stay at Venus's home, perhaps "once every two weeks or something like that." In deciding a motion for summary disposition under MCR 2.116(C)(10), this Court views conflicting evidence "in the light most favorable to the nonmoving party." Ahmed v Tokio Marine America Ins Co, 337 Mich.App. 1, 78; 972 N.W.2d 860 (2021) (quotation marks and citation omitted).
Although no additional information was provided about when Omar arrived on the bus or when the sun set, governmental records reflect sunset occurred at 8:56 p.m. <https://gml.noaa.gov/grad/solcalc/sunrise.html> (accessed July 5, 2023). See MRE 201.
During Venus's subsequent deposition, she testified she purchased that vehicle in February 2018. Venus had two sets of keys, which she typically kept in her bag or in a safe place, usually her bedroom dresser. But, on the date of the accident, Venus felt unwell and she could have put the keys anywhere. During Omar's deposition, Omar testified that he did not have keys to Venus's vehicle and that if he wanted to take and use it, he had to get the keys from Venus. Omar told a Progressive employee that he saw Venus's keys on the table on the night of the accident and took them.
Before the accident, Omar did not keep count of the number of times he had driven Venus's vehicle, but it was "[n]ot that many." When offered the option of choosing whether he had driven the vehicle once or twice or "a handful of times" or on a "regular basis," Omar responded: "I'll just go with a handful." When asked why he was permitted to use the car on those occasions, Omar responded "the main number one reason" was "to spend some time with [his] son."
During an earlier telephone call with Progressive's representative, when offered the choice between "one to two" or "five or more times," Omar thought it was "one or two." See footnote 2.
At Omar's deposition, he testified that his son was four; however, Omar did not provide a birthdate for the child. Because Omar's deposition was taken eight months after the accident, it is unclear whether the child was three or four years old when the accident occurred.
Omar also testified that "before using" Venus's vehicle, he had to ask her for permission to do so. And when questioned about whether he had to ask for permission "each time" he "wanted to take and use" Venus's vehicle, Omar answered: "Absolutely. Yes." Omar further testified that there was never a time he took Venus's vehicle without asking Venus for permission. Yet, on the night of the accident, Omar frankly acknowledged that he did not seek Venus's permission to use her vehicle. Instead, he took the keys to Venus's vehicle from Venus's home while Venus slept, and drove off without her permission. Due to the accident, Omar could not recall the exact time he drove off in Venus's vehicle.
Venus confirmed Omar's understanding of when Omar could use her vehicle. When asked if it was "fair to say that if Omar wanted to borrow and use [Venus's vehicle] . . . he had to come and ask for [her] permission," Venus answered: "Yes." And Venus confirmed that Omar asked for her permission on those handful of occasions that he used her vehicle before the accident. Venus also confirmed that on the day of the accident Omar did not ask for permission before taking her vehicle because she was asleep. Finally, when asked if "Omar ever discussed with [Venus] that he knew he should not have taken" her vehicle, Venus testified that he had and that Omar "told [Venus] he was sorry for doing that."
II. APPLICABLE LAW
As the majority recognizes, in pertinent part, MCL 500.3113 provides:
A person is not entitled to be paid personal protection insurance [(PIP)] 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).]
Our Supreme Court has held that "any person who takes a vehicle contrary to a provision of the Michigan Penal Code-including MCL 750.413 and MCL 750.414, informally known as the 'joyriding' statutes-has taken the vehicle unlawfully within the meaning of MCL 500.3113(a)." Spectrum Health Hosps v Farm Bureau Mut Ins Co, 492 Mich. 503, 537; 821 N.W.2d 117 (2012). Both joyriding statutes prohibit the taking of a motor vehicle without the authority of the owner. MCL 750.413; MCL 750.414. The term "authority' in the context of the joyriding statutes means "the 'right to control, command or determine.'" Rambin v Allstate Ins Co, 495 Mich. 316, 332; 852 N.W.2d 34 (2014), quoting Random House Webster's Dictionary (1996), superseded by statute as recognized by Ahmed v Tokio Marine America Ins Co, 337 Mich.App. 1, 25; 972 N.W.2d 860 (2021). In relevant part, MCL 750.413 provides that "[a]ny person who shall, wilfully and without authority, take possession of and drive or take away . . . any motor vehicle, belonging to another, shall be guilty of a felony ...." MCL 750.414 similarly provides, in relevant part, that "[a]ny person who takes or uses without authority any motor vehicle without intent to steal the same . . . is guilty of a misdemeanor ...." Although MCL 750.414 "prohibits the unauthorized use or taking of a motor vehicle, it does not require a showing that the perpetrator intended to permanently deprive the owner of the vehicle." Rambin, 495 Mich. at 329.
After Rambin, the Legislature amended MCL 500.3113(a). 2014 PA 489. The original version of the statute contained a safe harbor provision for one who unlawfully took a vehicle but "reasonably believed that he or she was entitled to take and use the vehicle." 1986 PA 93. In Ahmed, this Court concluded that MCL 500.3113(a), as amended, eliminated the safe harbor provision contained in the former version of the statute. Ahmed, 337 Mich.App. at 23. Under the new standard, it is no longer sufficient for a person seeking PIP benefits to show he lacked actual knowledge that he did not have authority from the owner to take the vehicle. Id. at 25. For purposes of applying MCL 500.3113(a), a person has unlawfully taken a vehicle under MCL 750.414 if the person did not take steps to determine whether the owner had granted him authority to take the vehicle. Id. at 26-27.
2014 PA 489 only amended the scienter requirement for MCL 750.414 as it relates to litigation concerning the application of MCL 500.3113(a), and the legislation did not amend the mens rea necessary to prove a violation of MCL 750.414 in criminal cases. Ahmed, 337 Mich.App. at 26 n 12.
In Ahmed, the plaintiff was injured while driving a rental car and sought PIP benefits from the defendant. Ahmed, 337 Mich.App. at 4-5. The car was rented by the plaintiff's wife, who gave the plaintiff permission to drive the vehicle. Id. The plaintiff was not licensed to drive when the accident occurred. Id. at 5. Under the express terms of the contract, which the plaintiff never read, unlicensed drivers were expressly forbidden from driving the car. Id. Thus, the plaintiff was expressly not authorized to drive the car by the vehicle's owner, the rental car company, but he did not have actual knowledge that he lacked authority. Id. This Court concluded that, under the "should have known" standard, the plaintiff was obligated to learn the terms of the contract and could not merely assume he was permitted to take the car. Id. at 26-27. This Court explained that "[t]he 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. at 27.
III. ANALYSIS
In this case, the undisputed facts show that 32-year-old Omar, whose license to drive had been suspended for years, was prohibited from taking Venus's vehicle on the day of the accident without her permission and that he knew or should have known his taking was prohibited.
It is a crime for a vehicle owner to "knowingly permit . . . [her vehicle] . . . to be operated on a highway or other place open to the general public or generally accessible to motor vehicles . . . within this state by a person whose license . . . is suspended . . ., except as permitted under" the Motor Vehicle Code, MCL 257.1 et seq. See MCL 257.904(2). The penalty for that offense depends on the number of prior convictions for the same offense and whether it causes another person to suffer a serious impairment of body function or death. See MCL 257.904(3) and (7).
Venus owned the vehicle, having purchased it in February 2018. Omar did not have keys to Venus's vehicle, and, if he wanted to take and use it, he had to get the keys from Venus. Despite knowing that Omar's license was suspended, Venus let Omar use her vehicle on a "handful" of occasions over 2-1/4 years to spend time with his young son.
Omar testified that "before using" Venus's vehicle, he had to ask her for permission. And, when asked whether he had to request permission "each time" he "wanted to take and use" Venus's vehicle, Omar answered: "Absolutely. Yes." (Emphasis added). Except for the night of the accident, Omar never took Venus's vehicle without asking Venus for permission. That night, Omar did not ask Venus for permission. Instead, he took the keys to Venus's vehicle from Venus's home while Venus slept and drove off. Because MCL 500.3113(a) "examines the legality of a taking from the driver's perspective," Spectrum Health, 492 Mich. at 522, this ends the inquiry of whether Omar unlawfully took Venus's vehicle without authority and whether he knew or should have known that he took it unlawfully.
Although the majority posits "that families often do not articulate hard-and-fast rules that must be followed in all circumstances," this family had a hard-and-fast rule in place. More specifically, Omar had to ask Venus for permission to use her vehicle and she had to give Omar express permission before he could drive her vehicle.
In any event, Venus confirmed Omar correctly understood the condition under which he could use her vehicle. "[I]f Omar wanted to borrow and use" her vehicle, "he had to come and ask for [her] permission." And, in fact, Omar had asked Venus for her permission on those handful of occasions that he had used her vehicle before the accident. On the night of the accident, however, Omar did not ask Venus for permission before he took her vehicle because she was asleep. Finally, when she and Omar discussed that "he knew he should not have taken" her vehicle, Omar "told [Venus] he was sorry for doing that." In other words, Omar apologized to Venus for failing to obtain her approval to use her vehicle because he knew he should not have taken it before securing her permission.
Appellees, however, argue that there was no unlawful taking in this case given Omar and Venus's subsequent affidavits and Venus's deposition testimony that she would have allowed Omar to take the vehicle that night if he had asked. In Omar's affidavit, he averred: "On the date of the accident, I was of the belief I had permission to use my mother's vehicle." In Venus's affidavit, she averred:
Appellees collectively refers to Omar and the service providers seeking recovery of PIP benefits.
4. That Omar normally requested permission when using my vehicle. However, I did not require him to obtain permission before taking or using my vehicle.
5.... If Omar would have asked to use the vehicle I would have granted him permission to use my vehicle on May 24, 2020.
Because these affidavits directly conflicted with Omar and Venus's deposition testimony, namely, that Omar had to request permission from Venus before he used her vehicle, they cannot create a genuine issue of material fact. See Dykes v William Beaumont Hosp, 246 Mich.App. 471, 479482; 633 N.W.2d 440 (2001) (It is well-established that a party may not create a question of fact by making assertions in an affidavit that are contrary to prior deposition testimony.).
Appellees also point to Venus's deposition testimony as demonstrating that Venus would have permitted Omar to take the vehicle that night if he had asked to do so. It is true that, during Venus's deposition, MSHI's attorney asked Venus whether, absent "psychic foreknowledge of this accident," she "would . . . have given [Omar] permission to use [her vehicle,]" if he had "woken [her] up that evening and asked to use" it. It is also true that Venus answered affirmatively.Later, however, Progressive's counsel followed up on Venus's response, and Venus, who recognized that Omar's driver's license was suspended, further explained that she allowed Omar to take her vehicle "to go see his little boy." Venus then clarified that she would not have allowed Omar to take her car for any other reason.
It appears that Venus was unaware that Omar was drinking or using marijuana before the accident. At Omar's deposition, Omar himself denied drinking alcohol or smoking marijuana on the day of the accident. After the accident, however, hospital test results showed that Omar was positive for THC and had a 0.17 blood-alcohol level, more than two times the legal limit.
See footnote 8.
Venus went to sleep around 8:30 p.m. and the vehicle crash was reported by 10:12 p.m. Omar was traveling on 8 Mile Road, a route he typically took to his son's home. The shortest distance between Venus's home and the home where Omar's child lived was over seventeen miles and required approximately thirty minutes to reach via vehicle. Omar's adult passengers were not deposed, and therefore, provided no additional information about whether Omar actually visited his three- or four-year-old son that night.
Regardless, before our Supreme Court's decision in Spectrum, 492 Mich. at 523, an owner's statement after the accident that he or she would have given consent and allowed the driver to take the vehicle was one factor in determining whether there was an unlawful taking under MCL 500.3113(a). Landon v Titan Ins Co, 251 Mich.App. 633, 649; 651 N.W.2d 93 (2002). When Landon was decided, whether a vehicle owner had authorized a taking was determined by applying the test for whether consent had been given under the vehicle owner's liability statute, MCL 257.401, which presumes the owner gave his or her consent to the driver. Bronson Methodist Hosp v Forshee, 198 Mich.App. 617, 623-626; 499 N.W.2d 423 (1993), overruled by Spectrum, 492 Mich. at 523. In Spectrum, our Supreme Court overruled Bronson, narrowing the circumstances under which a person can claim to have lawfully taken a vehicle and eliminating the presumption of consent for purposes of MCL 500.3113(a). Spectrum, 492 Mich. at 523. Thus, even under the previous, more forgiving standard for determining the lawfulness of a taking, Venus's after-the-fact consent would not be dispositive in this case. Under the current version of MCL 500.3113(a), one runs afoul of MCL 750.414 when he takes a motor vehicle and knows or should have known that "the owner prohibited the taking." Ahmed, 337 Mich.App. at 25-26. And, again, the lawfulness of the taking is determined by whether the person was prohibited from taking the vehicle when the taking actually occurred. Id. at 13-15. In this case, Omar was prohibited from taking Venus's vehicle without obtaining her prior assent.
In denying appellants' motions for summary disposition, the trial court judge expressed his concern that Omar would be left without PIP benefits despite his serious injuries and explained that if the judge's child took his vehicle without his knowledge while he slept, he would be upset, but that it would not necessarily mean that he would not have permitted his child to take the vehicle. The trial court's hypothetical failed to recognize that the deposition testimony in this case established that this parent and adult "child" had a mutual understanding that this adult "child" was not permitted to take the car without asking this parent for permission, which this adult "child" failed to obtain, especially considering this adult "child's" status as a suspended driver.
See footnote 8.
The majority seems to suggest that absent an express written agreement prohibiting driving altogether in a familial setting, permission is a fluid concept and an after-the-fact approval suffices. Doing so ignores Venus and Omar's straightforward deposition testimony. On this record, there is no dispute that Omar did not actually have Venus's permission to take her vehicle. Omar unequivocally testified that he knew he needed his mother's prior permission before taking her vehicle, the same permission he had secured on those rare occasions when he had asked to use her vehicle over the course of more than two years. Nor could Omar simply assume that he had permission to take a vehicle from its owner. Ahmed, 337 Mich.App. at 27. And, even if Omar had assumed that Venus would have granted permission had he asked, the facts are that Omar knew that he needed Venus's permission to drive her vehicle each and every time and that he knew he took her vehicle without her permission while she was sleeping. Omar even apologized to Venus after they discussed that he should not have taken her vehicle without permission. Accordingly, Omar unlawfully took Venus's vehicle contrary to the joyriding statutes and was willingly operating it when the accident occurred, meaning Omar is barred from recovering PIP benefits pursuant to MCL 500.3113(a).
For these reasons, the trial court erred when it denied appellants' motions for summary disposition and reconsideration. I would reverse and remand to the circuit court with instructions to enter an order granting appellants' motions for summary disposition.