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### STATE OF MICHIGAN

COURT OF APPEALS

TIFFANY ADAMS,

Plaintiff-Appellee, UNPUBLISHED April 11, 2017

v No. 330999 Livingston Circuit Court
JAMES EDWARD CURTIS and DUNNING MOTORS, LC No. 15-028559-NI

Defendants-Appellants.

Before: B ORRELLO , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

.

Under Michigan’s no-fault regime, a motor vehicle can have a t itle owner as well as a “constructive owner.” The latter form of ownership arises from a person’s “ proprietary or

possessory usage” of the motor vehicle, as opposed to mere “incidental us age under the direction or with the permission of another.” Ardt v Titan Ins Co , 233 Mich App 685, 691; 593 NW2d 215 (1999). Here, we face the question of whether a grandfather’s use of his granddaughter’s car was sufficiently proprietary or possessory to meet the usage thresh old for constructive ownership. Finding a genuine issue of material fact on this question, we v acate the trial court’s judgment and remand for further proceedings.

I. BACKGROUND

Plaintiff alleged that defendant James Edward Curtis, while op erating a vehicle owned by defendant Dunning Motors, was intoxicated and caused a head-on collision with a 1999 Ford Taurus driven by plaintiff and titled in her name. Curtis subs equently pleaded nolo contendere to operating while intoxicated causi ng serious injury and was sent enced to a prison term of one year, eight months to five years. For her part, plaintiff suff ered significant injuries, including a traumatic brain injury and seve ral fractured bones and lacerati ons. Plaintiff’s vehicle was insured by Home-Owners Insurance Company (Home-Owners), and the insurer has paid personal injury protection (PI P) benefits in excess of $550,000

.

Plaintiff sued defendants for noneconomic damages under MCL 50 0.3135. A party is barred from recovering any damages under that provision if the party was operating her own-2- vehicle at the time of the injur y and that vehicle was not prop erly insured under Michigan’s nofault system. MCL 500.3135(2)(c). To be properly insured, Mic higan law requires, among other things, that a motor vehicle be insured by an owner, and plaint iff admittedly did not insure her 1999 Ford Taurus—her grandfat her (Eugene Johnson) did. 1 Specifically, Johnson insured the 1999 Ford Taurus and four other vehicles he owned through Home- Owners. On the rated-driver list for the Taurus, the policy listed only Johnson and his wif e, Nancy. The declarations sheet stated: “Automobile driven to work or school 3 miles or less by a 71 year old operator.” Accordingly, defendants moved for summary disposition, arguing that the 1999 Ford Taurus was not insured by an owner as required by MCL 500.3101(1) and, as a result, plaintiff was barred from recovering noneconomic damages.

On the question of ownership, pl aintiff conceded that her gran dfather was not titled on the vehicle. Plaintiff argued, instead, that Johnson was a con structive owner of the vehicle. At the time of the accident, plaintiff was living with her grandpa rents and had done so for the past ten or so years. Johnson helped plaintiff purchase the 1999 Fo rd Taurus by inspecting it and making sure it was a worthwhile investment. Johnson testified that he did not provide his granddaughter with any funds to purchase the vehicle. 2 He did, however, have his own set of keys to the vehicle, and he drove it “every couple weeks” to ma ke sure that it was still operating properly. He testified that he did not ask his granddaughter f or permission to drive the vehicle, but that he drove it when she was not using it for work. He al so explained that he performed and paid for all of the vehicle’s maintenance, including washing an d fueling the vehicle.

Plaintiff argued below that, take n together, these statements confirmed that Johnson was
a constructive owner of the 1999 Ford Taurus. Defendants disag reed, maintaining that these statements amounted to, at best, episodic usage that failed to reach proprietary or possessive usage. The trial court sided with plaintiff and granted summar y disposition in her favor under MCR 2.116(I). Defendants now appeal by leave granted. 3

1 It appears from the record that Johnson was married to plaintif f’s grandmother, but that he is not plaintiff’s biological or adoptive grandfather. Because plaint iff refers to Johnson as her “grandfather” without qualifica tion in her brief on appeal, we will do the same.

2 Johnson countered this testimony in an affidavit filed in resp onse to defendants’ summary disposition motion. It is well settled that a party “may not c reate factual issues by merely asserting the contrary in an affi davit after giving damaging te stimony in a deposition.” Downer v Detroit Receiving Hosp , 191 Mich App 232, 234; 477 NW2d 146 (1991). Accordingly, for purposes of this appeal, Johnson’s contrary statement regarding helping to pay for the 1999 Ford Taurus is ignored.

3 Adams v Curtis , unpublished order of the Cour t of Appeals, e ntered April 12, 2016 (Docket No. 330999).-3- II. ANALYSIS

“We review de novo a trial court’s decision regarding a motion for summary disposition to determine if the moving party i s entitled to judgment as a m atter of law.” Bernardoni v City of Saginaw , 499 Mich 470, 472; 886 NW2d 109 (2016). Summary disposition should be granted if “there is no genuine issue as to any material fact, and the mov ing party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). In re ndering our decision, we review the evidence in the light most favorable to the nonmoving party

. Hastings Mut Ins Co v Safety King, Inc. , 286 Mich App 287, 291; 778 NW2d 275 (2009). “A genuine issue of material fact exists when the record, giving the benefit of r easonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v General Motors Corp , 469 Mich 177, 183; 665 NW2d 468 (2003).

Noneconomic Damages and Ownership . Under Michigan’s no-fault insurance regime, a person may be liable in an action arising out of a motor-vehicl e accident if the injured person “suffered death, serious impairment of body function, or perman ent serious disfigurement.” MCL 500.3135(1). But, the injured person is not entitled to da mages if she was operating a vehicle that was not properly ins ured at the time the injury oc curred. MCL 500.3135(2)(c).

To insure a vehicle properly, an owner of the vehicle must main tain the insurance on that vehicle. MCL 500.3101(1). If a vehicle is not insured by an o wner (titled or constructive), then the vehicle cannot be properly insured under Michigan law. Thu s, it is not sufficient for a nonowner to insure a vehicle, at least when noneconomic damages or other benefits are sought. See
Barnes v Farmers Ins Exch , 308 Mich App 1, 8; 862 NW2d 681 (2014).

Constructive Ownership Under Michigan Law. While there are several definitions of a motor vehicle owner under Michigan law, the one applicable here is someone “having the use” of a vehicle “for a period that is greater than 30 days”—what h as been called “constructive” ownership. MCL 500.3101(2)(k)( i ); Barnes , 308 Mich App at 4. This Court has previously determined that “having the use” of a motor vehicle “means usin g the vehicle in ways that comport with concepts of ownership.” Ardt , 233 Mich App at 690. The Ardt Court noted that “ownership follows from proprietary or possessory usage, as opposed to merely incidental usage under the direction or with the permission of another.” Id. at 691.

In Detroit Med Ctr v Titan Ins Co , 284 Mich App 490; 775 NW2d 151 (2009), the Court evaluated whether an injured dri ver was an owner of a vehicle. The driver kept the vehicle at her
residence and used the vehicle a bout seven times over a month-l ong period. Id. at 492. The
father of the driver’s children—who did not use the car—had tit le to the car and was responsible
for maintenance. Id. at 491-492. In finding that the trial court did not err in co ncluding that the driver was not the owner of the vehicle, this Court said that t here “was no transfer of a right of use, but simply an agreement to periodically lend.” Id. at 493. The Court also noted that the driver’s use was “sporadic.” Id.

In contrast, in Chop v Zielinski , 244 Mich App 677; 624 NW2d 539 (2001), the injured
driver’s ex-husband was the title owner of the vehicle when the accident occurred. Id. at 681. But the driver had regularly used the car for over six months, parking it at her residence and driving it to and from work daily and using it for personal err ands. Id . at 680-681. This Court-4- held that the driver’s “use of the car in such a manner was pos sessory use that comports with the concepts of ownership.” Id . at 681.

Finally, in Kessel v Rahn , 244 Mich App 353; 624 NW2d 220 (2001), the plaintiff claimed she was injured following a motor-vehicle accident. Id. at 354. The plaintiff was driving a vehicle that was titled in her mother’s name and did not have the requisite insurance.

Id. This Court was tasked with determining whether the plaintiff was also an owner of the
vehicle. Id. at 355. The Court noted evidence that the plaintiff had been using the vehicle for over a year on a daily basis, that the plaintiff’s mother had n ot driven the vehicle, and that the vehicle was kept at the plaintiff’s home. Id. at 357-358. Considering these facts, the Court found that plaintiff “establish[ed ] a sufficient proprietary or possessory use of the vehicle for more than thirty days, thus coming within the definition of ‘ow ner’ under § 3101.” Id . at 358.

Taken together, these cases show that, to be a constructive ow ner, the driver must use the vehicle in a way that an owner w ould, such as usi ng the vehicle for personal use and driving it on a regular basis. An agreement for periodic use, such as the si tuation in Detroit Medical Center

, does not render a driver a constructive owner.

A Mixed Record . In this case, the facts developed thus far are mixed on the question of constructive ownership. On the one hand, Johnson’s use of the 1999 Ford Taurus could be characterized as incidental. He drove the vehicle only once ev ery couple of weeks just to see whether it was still operating properly, suggesting he did not use it for his own personal use. It also appears that he did not drive the vehicle to and from scho ol or work, as was stated in the
insurance declarations—that de scribed his granddaughter’s usage , not his own. The record suggests, in fact, that Johnson de ferred to plaintiff’s use of the vehicle and only drove it when she did not need it for work. Finally, Johnson testified durin g his deposition that he did not fund the purchase of the vehicle. A reasonable juror could view thi s evidence as showing that
Johnson did not use the 1999 Ford T aurus as an owner typically would.

And yet, on the other hand, there is record evidence that John son’s usage did have proprietary aspects. First, a nd what should not be overlooked, Johnson did pay to insure the 1999 Ford Taurus, along with four other vehicles, and the perso n who regularly dr ove the vehicle was a family member who lived with him for approximately ten ye ars. Second, the vehicle was kept at Johnson’s residence. Third, Johnson had his own set of keys to the vehicle, he maintained and fueled the vehicle at his own expense, and he dr ove it on occasion to make sure it was still operating properly. T his usage could be seen as cons istent with someone who owned a small fleet of vehicles, including the one in question, and sha red usage of that one vehicle with a family member who lived with him.

Moreover, the import of some of the evidence that would ordinar ily weigh against constructive ownership is less clear here. For example, while Johnson was not a frequent driver of the vehicle, this might be understandable and still consiste nt with ownership, considering that he had four other vehicles from which to choose—similarly, it i s entirely possible that there are other vehicles that he undoubtedly owned that he likewise did n ot regularly drive. In addition, Johnson testified that he did not ask his granddaughter for per mission to drive the vehicle, and while he may have deferred to his granddaughter’s usage, such d eferral makes sense when one considers that she had a specific work schedule and he had four other options if he needed to get-5- somewhere when she was working. And, while Johnson may not hav e contributed money to the purchase of the vehicle, this is not particularly uncommon when one is considering constructive ownership, as opposed to titled ownership.

As in Ardt , 233 Mich App at 691, the record in this case contains evidenc e that both favors and disfavors a finding of constructive ownership. The record evidence is not so onesided that a reasonable juror would be compelled to find for or against Johnson-as-owner of the 1999 Ford Taurus. Accordingly, the trial court er red in granti ng summary disposition to plaintiff. We vacate the trial court’s order of summary dispos ition and remand the case for further proceedings consistent with this opinion. We do not re tain jurisdiction.

/s/ Stephen L. Borrello
/s/ Kurtis T. Wilder
/s/ Brock A. Swartzle