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Volume XXVII, No. 15, June 15, 2015        

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau 

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PLAINTIFF WAS NOT THE OWNER OF AN INVOLVED FREIGHTLINER, INSOFAR AS HE DID NOT

HAVE PROPRIETARY OR POSSESSORY USE OF THE FREIGHTLINER

By Samantha Draugelis

The Michigan Court of Appeals has found that, when considering what insurance company is responsible for payment of a claimant’s claim for No-Fault benefits, mere use of a vehicle for more than 30 days does not satisfy the statutory definition of “owner” found in MCL 500.3101(2)(h)(i).

In Shelson v. Secura Ins. Co. and Great West Casualty Co., (Unpub, COA No. 318762), Plaintiff suffered injuries when he was involved in an auto accident while driving a freightliner provided by trucking company, Sam Forrest & Sons.  The freightliner was insured by Great West Casualty Company while Plaintiff himself owned two vehicles insured by Secura Insurance Company. Plaintiff worked exclusively for Sam Forrest & Sons as an independent contractor, and would find his own trucking jobs while the company would provide a semi truck for each job. Plaintiff would receive 25% of the gross pay for each job while the trucking company would receive the remaining 75%

Specifically, there was no particular freightliner that Plaintiff would drive for each job. For approximately 3-4 months prior to the accident Plaintiff had been driving a freightliner FLD-120 which was registered and titled in the name of Sam Forrest & Sons. Plaintiff was not entitled to use the freightliner for personal errands. Sam Forrest & Sons would provide service on the freightliner when necessary, and generally paid for gas and repairs, although Plaintiff paid for minor repairs and oil while on the road.

After Plaintiff’s accident, Plaintiff sued both Secura Insurance Company and Great West Casualty Company seeking no-fault benefits.  Both insurance companies disputed which was responsible.  During the pendency of the litigation, Plaintiff filed a motion for summary disposition which was granted by the Trial Court, who ruled that the Plaintiff’s personal policy with Secura was primarily responsible to pay benefits. Secura appealed, arguing that because Plaintiff used the freightliner for greater than 30 days, he should be considered the “owner” pursuant to MCL 500.3101(2)(h)(i), thus requiring Great West be responsible for payment of the claim. The Court of Appeals rejected Secura’s argument, holding that although Plaintiff had been driving the freightliner for 3-4 months prior to the accident, his use of the freightliner did not comport with concepts of ownership as set forth in previous published Court of Appeals decisions, including Ardt v Titan Ins Co, 233 Mich App 685 (1999); Kessel v Rahn, 244 Mich App 353 (2001); Chop v Zielinski, 244 Mich App 677 (2001); and Detroit Medical Center v Titan Ins Co, 284 Mich App 490 (2009).  The Court noted Plaintiff had to be granted permission before using one of the frieghtliners before a job, and Plaintiff did not have personal use of the freightliner.  Thus, Plaintiff did not qualify as an owner of the freightliner under MCL 500.3101(2)(h)(i).

It should be noted two Judges of the Court of Appeals panel chose to limit this holding to whether Plaintiff was the owner of the freightliner. The Judges did not consider whether Plaintiff was self-employed, an employee of Forrest, or an independent contractor, which issues were not before the Court on appeal. The Judges also did not consider any other issue regarding the applicability of MCL 500.3114(3).  A concurring opinion, authored by Judge Boonstra, however, analyzed whether Plaintiff was self-employed, an independent contractor or an employee.

 

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REGISTER NOW! 

WINDY CITY SEMINAR

The 2015 Windy city Seminar will take place on Thursday, June 18, at the Chicago Marriott Schaumburg.

Please join us for a complimentary full day seminar, lunch will be included, also 6 Illinois Continuing Education Credits will be offered.

To register please contact Eileen Carty at: ecarty@garanlucow.com or 800-875-7600.

 

Seminar Agenda:

 

8:30 – 8:55 a.m.      Continental Breakfast and Registration. 

 

8:55 – 9:00 a.m.      Welcome and Introduction.

Speaker: David A. Couch, Esq. 

 

9:00 – 10:00 a.m.    Illinois First Party and Third Party Auto Law Updates.

Speaker: Jennifer E. Davis, Esq.

 

10:00 – 10:15 a.m.  Illinois Premises Liability Law Updates.

Speaker: David A. Couch, Esq. 

 

10:15 – 10:30 a.m.  Illinois Premises Liability Law Comparison With Adjacent State Laws.

Speaker: David A. Couch, Esq.

 

10:30 – 10:45 a.m.   Break

 

10:45 – 11:30 a.m.  Michigan First Party Auto Law Updates and Comparison with Illinois and Indiana Law.

Speaker: John W. Whitman, Esq. 

 

11:30 – 12:00 noon  Michigan Third Party Auto Law Updates and Comparison with Illinois Law.

Speaker: David A. Couch, Esq.

 

12:00 – 12:15 p.m.  Question and Answer Session. 

 

12:15 – 12:30 p.m.  Examination on Illinois Law Topics and Comparison with Adjacent State Laws.                            

 

12:30 – 1:00 p.m.    Lunch provided at the Chicago Marriott Schaumburg 

 

1:00 – 4:00 p.m.      Trial and Deposition Boot Camp.

Presenters:

John W. Whitman, Jennifer E. Davis, and David A. Couch

 

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GLM DETROIT IS MOVING!

The new address for our Detroit office will be:

1155 Brewery Park Blvd.

Suite 200

Detroit, MI 48207

The new office space is known as Brewery Park and is at the site of the old Stroh Brewery (now Crain Communications).

We will be in our new location on Monday, June 29th, 2015.  All contact information for Detroit office employees will remain the same.  (Phone numbers and email address(es) will not change.)

The firm has long been committed to educating its clients in various areas of the law.  The new property, which is only a few blocks from our current location, will include a high-tech instructive classroom and space to have Webinars and connect digitally with clients across the country which will enable us to take educating our clients to another level.

To Register for your company’s individually tailored seminar please contact John Gillooly at 313.446.1530 or jgillooly@garanlucow.com

 

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