Author(s): James L. Borin, Simeon R. Orlowski

Volume XX, No. 6 February 18, 2008

EVERY OWNER AND REGISTRANT OF A MOTOR VEHICLE IS NOT REQUIRED TO BE A NAMED INSURED ON A POLICY OF INSURANCE

In a Law Fax article on February 16, 20071, we advised you of an unpublished Court of Appeals opinion2 which held that the constructive owner of a motor vehicle was subject to the exclusionary effect of Section 3113(b) because he was not a named insured on a policy applicable to that vehicle. We further articulated our concern that Gonzalez was not well reasoned and could lead to some harsh results if it were to be applied universally. We were particularly disappointed when the Supreme Court denied leave in Gonzalez, suggesting that the Court of Appeals opinion was correctly decided.

Fortunately, the Court of Appeals has now issued a published opinion rejecting Gonzalez. In Iqbal v Bristol West Ins Group, COA #275847 (February 14, 2008), the Plaintiff was the primary custodial user of a motor vehicle owned by his non-resident brother and which was insured by ACIA. The Plaintiff lived with his sister who was insured by Bristol West. The Plaintiff had no vehicle of his own.

Under the statutory priority provisions, Bristol West was the highest priority insurer to pay PIP benefits to Mr. Iqbal. Relying on Gonzalez, Bristol West denied the claim, arguing that Plaintiff was a de facto owner pursuant to MCL 500.3101(2)(g)(i), i.e., he had use of the motor vehicle for more than 30 days in the calendar year. As an “owner”, Bristol West further argued that Plaintiff had a duty to procure no fault coverage pursuant to MCL 500.3101(1). Because he failed to obtain such insurance, Bristol West contended that he should be excluded under MCL 500.3113(b).

The Trial Court rejected the argument proffered by Bristol West finding that MCL 500.3113(b) only required that the vehicle be insured, which it was by ACIA. The Court of Appeals affirmed in an unanimous opinion, stating:

“Viewing the statutory language in the context of the given facts, the statute would preclude Plaintiff from being entitled to PIP benefits if Plaintiff ‘was the owner . . . of [the BMW] . . . involved in the accident with respect to which the security required by section 3101 . . . was not in effect.’ As part of the process in construing MCL 500.3113(b), we shall make the assumption that Plaintiff was an ‘owner’ of the BMW, as that term is defined in MCL 500.3101(2)(g)(i). Next, the phrase, ‘with respect to which the security required by section 3101 . . . was not in effect,’ §3113(b), when read in proper grammatical context, defines or modifies the preceding reference to the motor vehicle involved in the accident, here the BMW, and not the person standing in the shoes of an owner or registrant. The statutory language links the required security or insurance solely to the vehicle. Thus, the question becomes whether the BMW, and not Plaintiff, had the coverage or security required by MCL 500.3101. As indicated above, the coverage mandated by MCL 500.3101(1) consists of ‘personal protection insurance, property protection insurance, and residual liability insurance.’ While Plaintiff did not obtain this coverage, there is no dispute that the BMW had the coverage, and that is the only requirement under MCL 500.3113(b), making it irrelevant whether it was Plaintiff’s brother who procured the vehicle’s coverage or Plaintiff. Stated differently, the security required by MCL 500.3101(1) was in effect for purposes of MCL 500.3113(b) as it related to the BMW.”

As a consequence of this published opinion, it is clear that Section 3113(b) was over extended in Gonzalez and should be applied only where an uninsured motor vehicle is involved in the accident.

We will keep you advised if Bristol West seeks leave to the Supreme Court. In the interim, we suggest that Iqbal represents the better reasoned approach on this issue.

BUCKEYE SEMINAR

The Firm’s annual seminar in Ohio will be held on March 12, 2008 at the Greater Columbus Convention Center in Columbus, Ohio. Please call or email Kristi Woloszyk at (248) 641-7600 or kwoloszyk@garanlucow.com for more information or to register.

GRAND RAPIDS BREAKFAST SEMINAR

The Firm’s annual West Michigan Seminar will be held on April 24, 2008 at the Meijer Gardens in Grand Rapids. Please contact Lynn Beatty (lbeatty@garanlucow.com) for additional information or to preregister.