CONSTRUCTIVE OWNERSHIP AND BURDENS OF PROOF

Fiona E. Heady

In a recent, unpublished decision, Spectrum et. al. v Farmers (Unpub COA No. 362651, 06/08/23), the Court of Appeals reversed the trial court’s ruling in favor of Farmers on summary disposition on the issue of constructive ownership.

Linda Lockett was driving a vehicle registered to her daughter when she lost control and struck a telephone pole. Traveling with her was Leffler, a friend who died in the crash, and Coleman, who was romantically involved with Lockett. Plaintiff Spectrum rendered services to Lockett until she ultimately succumbed to her injuries and died. As Lockett was uninsured and not a resident relative of anyone with insurance, her claim was assigned to Farmers.

It was undisputed that the registered owner was Lockett’s daughter, but Farmers filed their Motion for Summary Disposition under MCR 2.116(C)(10), arguing that Lockett was a constructive owner and therefore excluded from receiving PIP benefits. Farmers relied upon the testimony of Coleman who asserted that Lockett kept the vehicle outside their apartment for at least 6 weeks prior to the accident, Lockett had keys to the vehicle, used the vehicle a couple of times per week for transportation, and did not ask permission for use of the vehicle. The trial court dispensed with oral argument and ruled in favor of Farmers finding that Coleman’s testimony created an overall picture that strongly suggested Lockett’s use of the vehicle comported with ownership. Specifically, the trial court relied upon Coleman’s testimony that Lockett’s use was for more than 30 days in duration, Coleman believed it was Lockett’s vehicle, she could use it whenever she needed to without permission, and there was an overall pattern of unsupervised usage.

In a 2-1 decision, the Court of Appeals majority reversed the lower court decision finding that Coleman’s testimony was inconsistent and speculative, that it was not viewed in a light most favorable to Plaintiffs, and because the lower court made credibility determinations as to Coleman’s testimony. The majority summarized factors in the analysis for constructive ownership which flow from proprietary or possessory usage: (1) is the usage regular or sporadic/spotty, (2) is there a purchase, lease or other agreement, (3) is permission required, (4) does the individual have a subjective belief of ownership, (5) who repairs, maintains, fuels the vehicle, (6) is the use exclusive or shared, (7) where is the vehicle regularly parked, (8) does the individual have their own set of keys. (See Ardt v Titan, 233 MA 685; Twichel v MIC, 469 Mich 524; Chop v Zielinski, 244 MA 677; DMC v Titan, 284 MA 490; Iqbal, 278 MA 31)

The majority noted that Coleman’s testimony lacked confidence about Lockett’s use of the vehicle and was inconsistent and speculative (“I don’t know”, “I think”, “I believe”, “I wouldn’t know, but it would be my guess”). It noted that Coleman’s testimony was only definitive on two of the eight factors – that the vehicle was parked at Lockett’s apartment through the night and that she had keys. One factor was speculative – that Lockett used the vehicle at least a couple of times prior to the crash. The remaining five factors were not dispositive in Farmer’s favor which created a genuine issue of material fact which should be left to the jury. The majority concluded that the evidence was not so definitive a reasonable juror would be compelled to find against Lockett.

Judge Markey’s dissent argued that the deposition testimony of Coleman, while at times speculative or inconsistent, was also uncontroverted by any other evidence from Plaintiffs in their responsive pleading as required by MCR 2.116(C)(10). The dissent found that rather than making any credibility findings as to Coleman’s testimony, the lower court relied on the evidence presented by Coleman’s testimony because it was presented with no conflicting or competing evidence. No conflicting evidence was presented, and therefore, the lower court correctly relied on the evidence which was before it when granting Farmers’ motion.