Opinion
362651
06-08-2023
SPECTRUM HEALTH HOSPITALS, SPECTRUM HEALTH PRIMARY CARE PARTNERS, doing business as SPECTRUM HEALTH MEDICAL GROUP, and SPECTRUM HEALTH WORTH SERVICES, doing business as SPECTRUM HEALTH NEURO REHABILITATION SERVICES, Plaintiffs-Appellants, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee.
UNPUBLISHED
Kent Circuit Court LC No. 21-004265-NF
Before: MARKEY, P.J., and MURRAY and FEENEY, JJ.
PER CURIAM
In this action brought by plaintiffs, Spectrum Health Hospitals, Spectrum Health Primary Care Partners, and Spectrum Health Worth Services (collectively, "Spectrum"), to recover no-fault insurance benefits for the medical care and treatment for Linda Lockett (now deceased), plaintiffs appeal as of right the trial court order granting summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact, movant entitled to summary disposition as a matter of law) in favor of defendant, Farmers Insurance Exchange. Plaintiffs argue on appeal that the trial court failed to adhere to the limitations of a proper review for a motion for summary disposition by not viewing the evidence in the light most favorable to plaintiffs and not making reasonable inferences in favor of plaintiffs. For reasons stated herein, we reverse the trial court's order granting defendant summary disposition and remand for further proceedings.
I. RELEVANT FACTS AND PROCEEDINGS
This case arises from a motor vehicle accident. Lockett was driving a vehicle when she lost control and struck a telephone pole. Two passengers were also inside of the vehicle. Lasondra Leffler, Lockett's friend, died from injuries sustained in the car accident. James Coleman, who was in a dating relationship with Lockett, was injured but survived the accident. Lockett suffered significant injuries and received treatment from plaintiffs until she died as a result of her injuries.
At the time of the accident, Lockett was not insured nor was she domiciled with a relative who had insurance; therefore, the vehicle was not covered by a policy of insurance. Defendant was the assigned insurer. Plaintiffs filed an application with defendant for personal injury protection (PIP) benefits on behalf of Lockett. Defendant denied payment. Subsequently, plaintiffs filed a complaint against defendant, which they later amended, seeking payment of nofault benefits.
The parties agreed that the registered owner of the uninsured vehicle was Lockett's daughter. Defendant moved for summary disposition under MCR 2.116(C)(10), however, claiming that Lockett was a constructive owner of the vehicle and excluded from receiving benefits on the basis of Coleman's testimony. Defendant referred to Coleman's testimony that Lockett kept the vehicle at the apartment for at least six weeks before the accident, had keys to the vehicle, used the vehicle a couple times a week for transportation, and did not ask for permission to use the vehicle as evidence of constructive ownership. Plaintiffs opposed the motion, arguing that defendant could not meet the burden to establish that Lockett was the constructive owner of the vehicle on the basis of Coleman's testimony alone because a closer look at Coleman's testimony indicated that he had no knowledge regarding Lockett's use of the vehicle, and use of the vehicle was essential to determine constructive ownership.
The trial court dispensed with oral arguments and granted defendant's motion for summary disposition stating that Coleman's testimony created an overall picture that strongly suggested Lockett's use of the vehicle comported with the concept of ownership. The court specifically noted that Coleman observed Lockett's use of the vehicle for more than 30 days and that he was in the best position to have knowledge regarding Lockett's use of the vehicle. The court explained that Coleman testified about several facts that would suggest ownership, including: his belief that it was Lockett's vehicle, the vehicle being at her apartment, Lockett had a set of keys, she put gas into the vehicle, he never saw anyone else use the vehicle, Lockett would use the vehicle whenever she needed to, and he never heard Lockett ask permission from someone else to use the vehicle. The court determined that Lockett's vehicle usage exhibited a regular pattern of unsupervised usage and that nearly all the factors the court must consider when analyzing ownership weighed in favor of ownership. Plaintiffs now appeal.
Apparently, several unsuccessful attempts were made to depose Mary Washington, Lockett's daughter, who registered but failed to insure the 2007 Dodge Nitro involved in the accident.
II. ANALYSIS
Plaintiffs argue that the trial court erred by granting defendant's motion for summary disposition because the court made its determination on the basis of Coleman's inconsistent and speculative testimony. Plaintiffs claim that the trial court did not view the evidence in a light most favorable to plaintiffs, did not make inferences in favor of plaintiffs, proceeded to act as factfinder, and made credibility determinations. We agree.
This Court reviews de novo a trial court's decision whether to grant a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009). This Court also reviews de novo whether the trial court properly selected, interpreted, and applied the court rules applicable to the motion for summary disposition. Brecht v Hendry, 297 Mich.App. 732, 736; 825 N.W.2d 110 (2012). This Court reviews a motion for summary disposition on appeal in the same way that the trial court was obligated to review it. See Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich.App. 431, 440; 814 N.W.2d 670 (2012). In other words, this Court adopts the role of the trial court and determines whether the motion should have been granted or denied on the merits. See Morales v Auto-Owners Ins, 458 Mich. 288, 294; 582 N.W.2d 776 (1998). Review is limited to the evidence that had been presented to the trial court at the time the motion was decided. Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 475-476; 776 N.W.2d 398 (2009).
Summary disposition under MCR 2.116(C)(10) is available when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." This motion tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass'n, 491 Mich. 200, 206; 815 N.W.2d 412 (2012). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Attorney General v PowerPick Players' Club of Mich, LLC, 287 Mich.App. 13, 26-27; 783 N.W.2d 515 (2010) (quotation marks and citation omitted).
When making a motion under MCR 2.116(C)(10), the moving party has the initial burden to identify "the issues as to which the moving party believes there is no genuine issue as to any material fact." MCR 2.116(G)(4). The moving party must support the motion with "[a]ffidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion ...." MCR 2.116(G)(3). If the moving party properly asserts and supports the motion for summary disposition, the "burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists." Quinto v Cross and Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). The nonmoving party cannot rely on mere allegations or denials in the pleadings to establish a question of fact. Id. Rather, the nonmoving party must present evidence that establishes that there is a genuine issue of disputed fact on the issue raised by the moving party. Barnard Mfg Co, Inc, 285 Mich.App. at 370, 374-375.
Notably, the trial court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party and must draw all reasonable inferences in favor of the nonmoving party. MCR 2.116(G)(5); Dextrom v Wexford Co, 287 Mich.App. 406, 415-416; 789 N.W.2d 211 (2010). Circumstantial evidence can create a factual issue for trial. See Bergen v Baker, 264 Mich.App. 376, 387; 691 N.W.2d 770 (2004). But the court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Skinner v Square D Co, 445 Mich. 153, 161; 516 N.W.2d 475 (1994).
In this case, the trial court granted defendant's motion for summary disposition and deemed Lockett the constructive owner of the vehicle involved in the accident. The court based its decision on Coleman's testimony that described Lockett's use of the vehicle before the accident. The court explained that "[a]thought Coleman's testimony contains some uncertainties regarding his knowledge of Lockett's use of the vehicle, the overall picture he presents strongly suggests it comported with the concepts of ownership." [Emphasis added.] Thus, the court found the evidence was sufficient to conclude that Lockett was the vehicle's constructive owner.
Under Michigan's no-fault insurance act, MCL 500.3101 et seq., an owner or registrant of a motor vehicle is required to carry insurance for personal protection, property protection, and residual liability. Ardt v Titan Ins Co, 233 Mich.App. 685, 689; 593 N.W.2d 215 (1999). The owner of an uninsured vehicle is not entitled to PIP benefits for bodily injury resulting from an accident involving that vehicle. Id. A vehicle can have a titled owner as well as a constructive owner. An owner of a vehicle includes: a person who holds the legal title to a motor vehicle, or a person having use of a motor vehicle for a period that is greater than 30 days. MCL 500.3101(3)(l)(i) and (iii).
This Court has clarified that "ownership follows from proprietary or possessory usage, as opposed to merely incidental usage under the direction or with the permission of another." Ardt, 233 Mich.App. at 691(emphasis in original). In Ardt, the trial court granted summary disposition after finding that any use of a vehicle under MCL 500.3101(1) for thirty days or more qualified Ardt as the owner of the uninsured truck. This Court reversed citing testimony that Ardt's use was occasional and for minor purposes over a thirty day period and testimony that he drove the truck regularly during that time. Id. at 689-691. "Accordingly, there remains a genuine issue of material fact for resolution at trial, rendering summary disposition with regard to this issue inappropriate." Id. at 691. The focus is on the "nature of the person's right to use the vehicle." Twichel v MIC Gen Ins Corp, 469 Mich. 524, 530; 676 N.W.2d 616 (2004). A regular pattern of unsupervised usage supports ownership rather than spotty or exceptional use that requires permission. Chop v Zielinski, 244 Mich.App. 677, 624 N.W.2d 539 (2001). Michigan courts also consider a variety of factors to evaluate constructive ownership including:
1. Whether the individual used the vehicle on a regular or sporadic/spotty basis. Chop, 244 Mich. at 681; Detroit Med Ctr v Titan Ins Co, 284 Mich.App. 490, 493-494; 775 N.W.2d 151 (2009); Ardt, 233 Mich.App. at 691.
2. Whether the individual took possession of the vehicle pursuant to a purchase, lease, or other agreement, and the nature of that agreement. Twichel, 469 Mich. at 531.
3. Whether the individual had to ask permission to use the vehicle. Detroit Med Ctr, 284 Mich.App. at 493-494.
4. Whether the individual subjectively believed the vehicle to be her own. Chop, 244 Mich.App. at 681-682.
5. Whether the individual was responsible for repairs and maintenance or for putting gasoline in the vehicle. Kessel v Rahn, 244 Mich.App. 353, 357-358; 624 N.W.2d 220 (2001).
6. Whether the individual's use of the vehicle was exclusive or shared. Id. at 357.
7. Where the vehicle was regularly parked. Chop, 244 Mich.App. at 681.
8. Whether the individual had her own set of keys to the vehicle. Iqbal v Bristol West Ins Group, 278 Mich.App. 31, 34; 748 N.W.2d 574 (2008).
In this case, Coleman testified that while he was incarcerated, Lockett informed him that she acquired a vehicle, although he also testified that "[s]he didn't tell me she had a vehicle or anything." Upon his release from jail, Coleman returned to the apartment that he shared with Lockett. The vehicle was parked at the apartment and remained at the apartment until the date of the accident, roughly six weeks after Coleman's release from jail. Coleman explained that Lockett had a set of keys for the vehicle, he thought that she paid for the vehicle and put gas in the vehicle but he admitted "I don't, pretty much, I don't" when asked whether Lockett paid for the car or put gas in it. He later admitted he never saw her put gas into it. He also believed that Lockett would use the vehicle "when she wanted to use it, whenever she needed to use it," but he only saw her drive it a few times. Coleman hesitantly agreed with defendant's counsel that Lockett may have used the vehicle a couple times a week when questioned about Lockett's usage again, however, but he was gone to work during the day. He did admit that Lockett did use public transportation to get around before the accident but that was prior to his incarceration.
Portions of Coleman's testimony clearly lacked confidence regarding specific aspects of Lockett's use of the vehicle, however. For example: Coleman did not know how Lockett obtained the vehicle, he did not actually know if she was paying for the vehicle ("I don't know if she was paying;" "I think it was paid for"), he was unsure if she paid for repairs to the vehicle, he did not actually know if she had to ask permission to use the vehicle, he was unsure if anyone else had a set of keys to the vehicle, and he was unsure on how many times Lockett used the vehicle.
Indeed, Coleman's inconsistencies and speculations were readily apparent in his testimony. Many of Coleman's responses included statements such as: "I don't know," "I think," "I believe," "I would believe so," "I wouldn't know, but it would be my guess," "I don't know what's going on during the day," and "maybe." The only clear factual indications made by Coleman were that the vehicle was regularly parked at Lockett's apartment, that she had keys to the vehicle, and that Lockett used the vehicle at least a few times during the month leading up to the accident. The trial court overlooked many of the testimonial uncertainties to determine that Coleman's testimony was a clear indication of constructive ownership. A trial court is not permitted to make credibility determinations. Skinner, 445 Mich. at 161. Yet, the record contains evidence that both favors and disfavors a finding of constructive ownership. Cf. White v Taylor Distributing Co, Inc. 482 Mich. 136, 142-143; 753 N.W.2d 591 (2008) ("But, under the legal and factual circumstances, '[w]e do not ignore the inconsistencies in defendant's statements...,'" citing Bridwell v Segel, 362 Mich. 102, 106; 106 N.W.2d 386 (1960), as the issues presented were proper questions for the jury, not for summary disposition).
Under the eight factors that are considered in evaluating constructive ownership under MCL 500.3113(b), Coleman's testimony was definitive on two factors: the vehicle was regularly parked at Lockett's apartment and Lockett had her own set of keys. Even though he resided with her for 6 weeks prior to the accident, Coleman saw her use the vehicle a few times in total but said she could use it whenever she wanted. The trial court found these facts to indicate regular versus spotty use as a third factor supporting constructive ownership. The other five factors are not dispositive in defendant's favor and create a genuine issue of material fact, however. For example, Coleman did not know how she got the Dodge Nitro, whether she had to ask permission to use it, or whether Lockett (not Coleman) "subjectively believed the vehicle to be her own," Chop, 244 Mich.App. at 681-682. Coleman did not know if Lockett let anyone else drive the vehicle. He also testified he was "sure" that Lockett paid to put gas in the vehicle but also testified he never saw her put gas in the vehicle and had no idea if she paid for car repairs. Kessel, 244 Mich.App. at 357358.
When asked if Lockett could just get in and drive away if she wanted to take a trip to another state or for the weekend, Coleman responded that he "believed so" but also added "I mean, I wouldn't know, but it would be my guess she could." This is representative of Coleman's equivocal testimony throughout his deposition.
The evidence is not so definitive that a reasonable juror would be compelled to find for or against Lockett as the owner, meaning that there are genuine issues of material fact. See also Baldwin v Nall, 323 Mich. 25, 29; 34 N.W.2d 539 (1948) ("A jury may believe the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment" (citations omitted)). This Court has concluded that a genuine issue of material fact exists when some testimony supported regular use of a vehicle but other testimony suggested the plaintiff only used the vehicle a few times. See Ardt, 233 Mich.App. at 689-691. Likewise, whether Lockett had constructive ownership of the vehicle remained an open question of material fact based upon Coleman's inconsistent testimony. "The question of ownership is one of fact that is to be decided by the factfinder." Botsford Gen Hosp v Citizens Ins Co, 195 Mich.App. 127, 133; 489 N.W.2d 137 (1992).
Accordingly, we conclude that the trial court improperly granted summary disposition for defendant as genuine issues of material fact exist regarding whether Lockett was the constructive owner of the 2007 Dodge Nitro.
Reversed and remanded. We do not retain jurisdiction. Plaintiffs may tax costs.
MARKEY, P.J. (dissenting).
In this action brought by plaintiffs, Spectrum Health Hospitals, Spectrum Health Primary Care Partners, and Spectrum Health Worth Services, to recover no-fault insurance benefits for the medical care and treatment provided to Linda Lockett (now deceased), plaintiffs appeal by right the trial court's order granting summary disposition in favor of defendant, Farmers Insurance Exchange (Farmers), under MCR 2.116(C)(10). The trial court found as a matter of law that Lockett was the constructive owner of the motor vehicle that she was operating when it was involved in an accident that eventually took Lockett's life. Because Lockett did not carry any automobile insurance and her vehicle was not insured, the trial court ruled that there was no entitlement to personal protection insurance (PIP) benefits. Accordingly, Farmers was not obligated to compensate plaintiffs for the services they rendered to Lockett. Plaintiffs argue on appeal that the trial court failed to abide by the principles governing motions for summary disposition brought under MCR 2.116(C)(10). The majority agrees with plaintiffs' argument, reverses the trial court's ruling, and remands the case for further proceedings. Because I conclude that the trial court's decision was legally sound and did not constitute error, I respectfully dissent.
I. FACTUAL AND PROCEDURAL HISTORY
Lockett was driving an uninsured motor vehicle when she lost control and struck a telephone pole. Two passengers were also inside the car. Lasondra Leffler, Lockett's friend, died from injuries sustained in the automobile accident. James Coleman, who was in a dating relationship with Lockett at the time, was injured but survived the accident. Lockett suffered significant injuries and received treatment from plaintiffs until she succumbed to her injuries.
The parties agreed that the registered owner of the uninsured vehicle at the time of the accident was Lockett's daughter. Lockett herself was not covered by a policy of automobile insurance. Farmers was the assigned insurer. Plaintiffs filed a claim with Farmers for PIP benefits on behalf of Lockett, which Farmers denied. Subsequently, plaintiffs filed a complaint against Farmers seeking the payment of benefits. Farmers moved for summary disposition under MCR 2.116(C)(10), arguing that Lockett was a constructive owner of the vehicle and thus precluded from receiving benefits in light of the absence of mandatory insurance. Farmers relied on Coleman's deposition testimony in asserting that Lockett constructively owned the vehicle involved in the accident. Plaintiffs opposed the motion, contending that Farmers could not meet its burden to establish that Lockett was the constructive owner of the vehicle solely on the basis of Coleman's testimony. They argued that Coleman's testimony was at times inconsistent and speculative. Plaintiffs maintained that close examination of Coleman's testimony revealed that he had no true knowledge regarding Lockett's actual use of the car, and use of the vehicle was essential to determining constructive ownership. Plaintiffs did not rely on any documentary evidence that countered Coleman's testimony; rather, they simply assailed perceived shortcomings in Coleman's testimony.
The trial court dispensed with oral arguments and granted Farmers' motion for summary disposition, ruling that Coleman's testimony created an overall picture that strongly reflected that Lockett's use of the vehicle comported with the concept of ownership. The trial court specifically observed that Coleman had witnessed Lockett's use of the vehicle for more than 30 days and that he was in the best position to know about such use. The court explained that Coleman testified with respect to several facts that indicated ownership. This included Coleman's belief that it was Lockett's vehicle, the presence of the car at their shared apartment, Lockett's possession of the keys, her actions in filling the gas tank, the failure to see anyone else-including Lockett's daughter-use the car, Lockett's use of the vehicle whenever needed, and the fact that Lockett never asked permission from someone else to use the car. The trial court ruled that Lockett's vehicle usage exhibited a regular pattern of unsupervised control of the car and that nearly all the factors a court should consider when analyzing ownership weighed in favor of finding constructive ownership. Plaintiffs now appeal.
II. ANALYSIS
On appeal, plaintiffs argue that the trial court erred by granting Farmers' motion for summary disposition because the court relied on Coleman's inconsistent and speculative testimony. Plaintiffs posit that the trial court did not view the evidence in a light most favorable to plaintiffs, did not make reasonable inferences in favor of plaintiffs, proceeded to act as a factfinder, and made credibility assessments. MCR 2.116(C)(10) provides that summary disposition is appropriate when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for a party's action. Pioneer State Mut Ins Co v Dells, 301 Mich.App. 368, 377; 836 N.W.2d 257 (2013). "Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required . . . when judgment is sought based on subrule (C)(10)," MCR 2.116(G)(3)(b), and such evidence, along with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR 2.116(G)(5). "When a motion under subrule (C)(10) is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4).
"A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact." Pioneer State, 301 Mich.App. at 377. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). Pioneer State, 301 Mich.App. at 377. "Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party." Skinner v Square D Co, 445 Mich. 153, 162; 516 N.W.2d 475 (1994). "[S]peculation is insufficient to create an issue of fact." MEEMIC Ins Co v DTE Energy Co, 292 Mich.App. 278, 282; 807 N.W.2d 407 (2011). A court may only consider substantively admissible evidence actually proffered by the parties when ruling on the motion. Maiden v Rozwood, 461 Mich. 109, 121; 597 N.W.2d 817 (1999); see also MCR 2.116(G)(6).
Under Michigan's no-fault act, MCL 500.3101 et seq., "the owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance and property protection insurance as required under this chapter, and residual liability insurance." MCL 500.3101(1). This provision "requires the owner or registrant of a motor vehicle to carry insurance for personal protection, property protection, and residual liability." Ardt v Titan Ins Co, 233 Mich.App. 685, 689; 593 N.W.2d 215 (1999). "A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident . . . "[t]he person was the owner or registrant of a motor vehicle . . . involved in the accident with respect to which the security required by section 3101 . . . was not in effect." MCL 500.3113(b); see Ardt, 233 Mich.App. at 689 ("the owner of an uninsured motor vehicle is not entitled to personal protection insurance benefits for bodily injury resulting from an accident involving that vehicle").
An "owner" includes "[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." MCL 500.3101(3)(l)(i). The issue here is whether there is a genuine issue of material fact regarding whether Lockett had the use of the car for a period greater than 30 days. In Ardt, 233 Mich.App. at 690-691, this Court construed the language now found in MCL 500.3101(3)(l)(i), stating:
[W]e hold that "having the use" of a motor vehicle for purposes of defining "owner" . . . means using the vehicle in ways that comport with concepts of ownership. The provision does not equate ownership with any and all uses for thirty days, but rather equates ownership with "having the use" of a vehicle for that period. Further, we observe that the phrase "having the use []of" appears in tandem with references to renting or leasing. These indications imply that ownership follows from proprietary or possessory usage, as opposed to merely incidental usage under the direction or with the permission of another. [Emphasis in original; see also Chop v Zielinski, 244 Mich.App. 677, 680; 624 N.W.2d 539 (2001).]In Twichel v MIC Gen Ins Corp, 469 Mich. 524, 530-531; 676 N.W.2d 616 (2004), our Supreme Court clarified and observed that for purposes of constructive ownership under MCL 500.3101(3)(l)(i), the person need not actually use the vehicle. Instead, the focus is on the "nature of the person's right to use the vehicle." Id. at 530. That said, a spotty and exceptional pattern of usage may not be sufficient to render a person the owner of a vehicle, while a regular pattern of unsupervised usage may well support a finding that a person was an owner for purposes of the statute. Ardt, 233 Mich.App. at 691.
In this case, I would hold that the documentary evidence established as a matter of law that Lockett had the use of the car for a period greater than 30 days. Although Coleman at times speculated or provided inconsistent deposition testimony with respect to some matters connected to Lockett's use of the car, he also provided unscathed testimony demonstrating that Lockett had full and unfettered use of the vehicle for the requisite period. I initially emphasize that plaintiffs presented no evidence whatsoever that conflicted with or contradicted Coleman's deposition testimony. Coleman testified that he and Lockett had dated for about 11 years, that they shared an apartment, that while he was serving a short stint in jail Lockett told him via phone that she had acquired a car, and that when he returned to their apartment about six weeks before the accident, she had the car at issue in her possession, i.e., Lockett had acquired the vehicle at some point during Coleman's incarceration. Coleman testified that Lockett kept the car parked at their apartment, a fact which I find particularly significant as it would mean the vehicle was parked at their apartment overnights, and that Lockett had a set of keys for the vehicle. Although Coleman acknowledged that he worked during the day and that he could not state that there was not a second set of keys for the car, plaintiffs did not provide any documentary evidence showing that the car was parked elsewhere during the day or that there was indeed a second set of keys.
Coleman was asked whether Lockett "own[ed] a car," and he responded: "I don't know -yeah, she had a car, that's for sure. I thought that was her car." The majority makes much of Coleman's hesitancy and lack of certainty. But the fact is that Lockett did not "own" the vehicle, at least in terms of ownership as understood by most people, and what was definitive in Coleman's answer to the question was that it certainly did appear to him that Lockett had the full use of the car. Plaintiffs did not present documentary evidence that any other person had use of the vehicle. Coleman also testified to his belief that Lockett could use the car "when she wanted to use it, whenever she needed to use it." Again, plaintiffs did not present any evidence that such was not the case. Coleman further testified that he never heard Lockett indicate that she needed to ask someone else for permission to use the car. Plaintiffs did not present any evidence that Lockett needed to ask or asked for permission to operate the vehicle. Coleman testified that he saw Lockett "drive [the car] a few times." He later testified that perhaps she used the vehicle a couple times a week. Plaintiffs did not submit evidence that Lockett did not drive the car or that she operated the vehicle on less occasions than Coleman indicated. Moreover, MCL 500.3101(3)(l)(i) does not require proof of actual use of the vehicle. Twichel, 469 Mich. at 530-531. Here, all indications pointed to Lockett's having a continuous right to use the car.
Contrary to plaintiffs' contentions and the majority's reasoning, this is not a case in which the trial court assessed Coleman's testimony and found him to be truthful or failed to view the evidence in a light most favorable to plaintiffs. Rather, the trial court accepted Coleman's testimony because there was no competing documentary evidence that conflicted with his testimony on the matters most relevant to whether Lockett had the use of the vehicle. Under this uncontroverted evidence, reasonable jurors would agree that Lockett constructively owned the car.
The majority's analysis effectively turns the principles of summary disposition on their head and renders them meaningless. I would fully agree that a jury would need to assess Coleman's credibility had conflicting evidence been presented by plaintiffs or had Coleman's testimony reflected that he was truly and clearly guessing on all the relevant issues surrounding Lockett's connection to the car. The problem is, however, when a party does submit documentary evidence on a factual material issue and the opposing party fails to counter that evidence, a court cannot be permitted in the context of a (C)(10) motion to rule that a jury still needs to assess the credibility of the unchallenged documentary evidence. By way of a simple example, if a party presented documentary evidence in the form of deposition testimony that a stoplight was red, and the opposing party did not present any evidence to the contrary, the rules of summary disposition would dictate that there is no genuine issue of fact that the light was red. It would not be consistent with the principles of summary disposition to deny summary disposition on the issue of whether the stoplight was red on the basis that a jury would need to assess the deponent's credibility. If the deponent testified that perhaps the stoplight was red or maybe it was green, then I would agree that summary disposition would be improperly granted. But in the case at bar, I believe that Coleman's testimony was sufficiently definitive on the issue whether Lockett had the use of the car for more than 30 days, such that plaintiffs needed to submit evidence to the contrary rather than to simply claim that Coleman's testimony was not worthy of belief or consideration.
In my view, the majority's reliance on Baldwin v Nall, 323 Mich. 25, 29; 34 N.W.2d 539 (1948), is misplaced for the very simple reason that Baldwin concerned a jury trial and stands for the unremarkable proposition that it is a jury's and not a court's role to assess credibility and weigh the evidence, which the court cannot second-guess. Here, we are addressing a motion for summary disposition under MCR 2.116(C)(10), which specifically requires a court to ascertain whether there is conflicting evidence regarding a material fact. Pioneer State, 301 Mich.App. at 377. Baldwin is inapposite.
The only question in this case is whether Lockett had the use of the car for a period greater than 30 days, MCL 500.3101(3)(l)(i), and Coleman's testimony that she had keys to the car, that she drove the vehicle, that the car was kept at their shared apartment, and that she had access to the vehicle for approximately six weeks established Lockett as the constructive owner of the car in light of an absence of evidence to the contrary.
In sum, I would conclude that the trial court did not err in granting Farmers' motion for summary disposition. Accordingly, I respectfully dissent.