If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ALLSTATE INSURANCE COMPANY,

Plaintiff-Appellee,

UNPUBLISHED

May 25, 2023

v No. 360079

Wayne Circuit Court

DOMINIQUE JAMIA JOHNSON, LC No. 20-009080-NF

Defendant-Appellant.

Before: RICK, P.J., and SHAPIRO and O’BRIEN, JJ.

O’BRIEN, J. (dissenting)

I respectfully dissent.

Melvin Jackson testified that, on the day of the accident, he went out to dinner with his 

wife (Joi Jackson), his son (Eric Jackson), and his son’s girlfriend (defendant). According to 

Melvin, after dinner, Eric “said that [Melvin] could take the car” that belonged to defendant. 

Melvin never received permission from defendant to use the car. Melvin nevertheless took the 

car, then got into an accident.

The majority reasons that, under these facts, MCL 500.3113(a) may preclude Melvin from 

receiving no-fault benefits. That subsection 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.]

This subsection has two requirements: (1) the person willingly operated or used a motor vehicle 

that was taken unlawfully and (2) the person knew or should have known that the motor vehicle 

was taken unlawfully. As used in the statute, “taken unlawfully” means to “take[] a vehicle without 
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the authority of the owner, regardless of whether that person intended to steal it.” Spectrum Health 

Hosps v Farm Bureau Mut Ins Co, 492 Mich 503, 518; 821 NW2d 117 (2012).

Here, Melvin neither knew nor should he have known that he had taken defendant’s vehicle 

without her authorization. After Melvin went to dinner with Eric and defendant, Eric gave Melvin 

permission to use defendant’s car. While defendant did not expressly give Melvin permission to 

use the car, Melvin subjectively believed that he was taking the car lawfully, as demonstrated by 

his deposition testimony:

Q. So [defendant] herself did not actually tell you you could take the car?

A. My son, her man, that’s her man, told me we could take the car.

Q. Did he own the car?

A. I don’t know what they—how they situation is.

Nothing in the record suggests that Melvin should have known that his subjective belief 

was mistaken. Again, Eric gave Melvin permission to use defendant’s car after Melvin, Eric, and 

defendant all had dinner together. Defendant did not object or voice any concerns to Melvin about 

his use of her car. The bare fact that defendant’s boyfriend, rather than defendant, told Melvin that 

he could use defendant’s car after all three had dinner together would not alert a reasonable person 

to the possibility that defendant did not authorize Melvin’s use of the car. To the contrary, a

reasonable person in Melvin’s position would believe that defendant had no issue with Melvin’s 

use of the vehicle. There is simply nothing in the record to support concluding that Melvin should 

have known that he was using defendant’s motor vehicle without her authorization.

Accordingly, on this record, I would conclude that defendant has presented insufficient 

evidence to create a question of fact about whether Melvin knew or should have known that he 

was using defendant’s car without her authorization. It follows that MCL 500.3113(a) does not 

apply, and any amendment to defendant’s pleadings would be futile. For these reasons, I 

respectfully dissent.

/s/ Colleen A. O’Brien