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### STATE OF MICHIGAN

COURT OF APPEALS

KELLI SHINN,

Plaintiff-Appellant, FOR PUBLICATION March 29, 2016 9:15 a.m.

v No. 324227 Wayne Circuit Court STATE OF MICHIGAN SECRETARY OF STATE ASSIGNED CLAIMS FACILITY, LC No. 13-008123-NF

Defendant,

and

AMERICAN COUNTRY INSURANCE COMPANY and FARMERS INSURANCE EXCHANGE,

Defendants-Appellees.

Before: R ONAYNE K RAUSE , P.J., and J ANSEN and S TEPHENS , JJ.

R ONAYNE K RAUSE , P.J.

Plaintiff Kelli Shinn appeals as of right the trial court’s or der granting summary disposition of her claim for no- fault personal injury protectio n (PIP) coverage in favor of American Country Insurance Company and Farmers Insurance Exchan ge. We affirm in part, reverse in part, and remand.

The facts in the case are not, at least for purposes of the in stant summary disposition motion, disputed. Plaintiff owned a vehicle that, at the time of the accident, was not insured but was not operating. The vehicle was parked on the street in fro nt of her house. During a walk with her baby, plaintiff opened the door to the vehicle and sat in the passenger seat, partially inside and partially outside the vehicle. While plaintiff was seated and partially inside the vehicle, Robert Daniels drove another car into the rear of plai ntiff’s vehicle. For purposes of the-2- instant motion, there is no dispute that plaintiff was injured. 1 Likewise, there is no dispute that plaintiff was “occupying” the ve hicle within the meaning of MCL 500.3106(1)(c). At issue is whether she is entitled to PIP benefits from either defendant. Defendant Farmers Insurance Exchange (Farmers) is the insurer assigned to plaintiff’s claim by the Michigan Assigned Claims Facility, and defendant American Country Insurance Company (ACI C) is the insurer of Daniels’s vehicle.

The trial court granted summary disposition pursuant to MCR 2. 116(C)(10), which tests the factual sufficiency of the complaint. Urbain v Beierling , 301 Mich App 114, 122; 835 NW2d 455 (2013). We review decisions on motions for summary di sposition de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999).

In evaluating a motion for summa ry disposition brought under Su brule (C)(10), a reviewing court considers affida vits, pleadings, depositions, a dmissions, and other evidence submitted by the parties in the light most favorable t o the party opposing the motion. Summary disposition is properly granted if the pro ffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. [ Klein v HP Pelzer Auto Sys
, Inc , 306 Mich App 67, 75; 854 NW2d 521 (2014).]

“Interpretation of a statute or court rule constitutes a questi on of law that is also reviewed de novo.” Silich v Rongers , 302 Mich App 137, 143; 840 NW2d 1 (2013). “When a statute’s language is clear and unambiguous, we must apply the terms of t he statute to the circumstances of the particular case . . . and we will not read words into th e plain language of the statute.” PIC Maintenance
, Inc v Dep ’ t of Treasury , 293 Mich App 403, 410-411; 809 NW2d 669 (2011).

We note initially that plainti ff has not provided this Court w ith a transcript of the summary disposition motion hearing, nor has any certificate bee n filed by the court reporter verifying that the transcript ha d even been ordered. Plaintiff is therefore in violation of MCR 7.210(B)(1)(a), which constitutes a waiver of the issue. People v Wilson , 196 Mich App 604, 615; 493 NW2d 471 (1992). Nevertheless, because of the importa nce and meritoriousness of the issue raised, and because our review is de novo and thus not de pendent on the trial court’s reasoning, we will not punish pla intiff for her counsel’s negle ct, and we choose to consider the matter. See Steward v Panek , 251 Mich App 546, 554; 652 NW2d 232 (2002).

“Under personal protection insu rance an insurer is liable to p ay benefits for accidental bodily injury arising out of the ownership, operation, maintena nce or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1). Defendants argued below, and the trial court presumably accepted, that pursuant t o MCL 500.3113(b) and MCL 500.3101(1), because plaintiff was occupying an uninsured, park ed vehicle, she was not entitled to PIP benefits; ACIC further argues that it was entitled to su mmary disposition because it was not an insurer listed in the order of priority under MCL 500.31 14(4)(a).

1 Defendants note that they do challenge the extent thereof but concede that that dispute is not before us at this time.-3- The parties rely on authority involving parked cars, but, extr emely critically, the statutory provisions cited in those cases have since been amended. The p innacle case is Heard v State Farm Mut Auto Ins Co , 414 Mich 139; 324 NW2d 1 (1980). In Heard , the plaintiff’s uninsured vehicle was parked at a gas station and the plaintiff was outsi de that vehicle, pumping his gas, when another vehicle insured by State Farm struck him and pinne d him against his vehicle. In analyzing whether the plaintiff could collect PIP benefits from State Farm, the t hreshold question was whether the uninsured vehicle was involved in the accident for purposes of MCL 500.3113(b). At the time Heard was decided, MCL 500.3113 provide d, in relevant part:

A person is not entitled to be pa id personal protection insuran ce benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:

(a) The person was using a motor vehicle which he had taken unl awfully, unless he reasonably be lieved that he was entitled to take and use the vehicle.

(b) The person was the owner or registrant of a motor vehicle o r motorcycle involved in the accident with respect to which th e security required by subsections (3) and (4) of section 3101 was not in effect.

(c) The person was not a resident of this state, was an occupan t of a motor vehicle or motorcycle not regist ered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163 . [Emphasis added.]

At that time, MCL 500.3101, 1977 PA 54, provided, in relevant p art: “(1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, proper ty protection insurance, and residual liability insurance. Security shall be in effect cont inuously during the period of registration of the motor vehicle.”

The Court ruled that a parked car is only involved in an accid ent if one of the exceptions to the parked vehicle provision in MCL 500.3106 applies. At th at time, MCL 500.3106 provided:

(1) Accidental bodil y injury does not arise out of the ownershi p, operation, maintenance, or use of a parked vehicle as a motor vehicle unle ss any of the following occur:

(a) The vehicle was parked in such a way as to cause unreasonab le risk of the bodily injury which occurred.

(b) Except as provided in subsection (2), the injury was a dire ct result of physical contact with equipment permanently mounted on the vehi cle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loa ding or unloading process.-4- (c) Except as provided in subsection (2) for an injury sustaine d in the course of employment while loadi ng, unloading, or doing mechani cal work on a vehicle, the injury was sustai ned by a person while occupying, entering into, or alighting from the vehicle. 2 [Footnote added.]

The Court found that none of the exceptions applied, and theref ore, the uninsured vehicle was not involved in the accident for purposes of the exclusion in M CL 500.3113(b). It reasoned that when a parked vehicle that is not involved in the accident and is not being used as a motor vehicle—but is more like any othe r stationary object that could be hit by a car, such as a tree, sign post, or boulder—the owner of the uninsured vehicle would not be precluded from benefits. Id. at 148. Without any discussion of whether any security was act ually required under MCL 500.3101, our Supreme Court concluded that summary disposition under the exclusion in MCL 500.3113(b) was inappropriate.

The parties also rely on two more recent cases, which are more factually similar to the instant case because the plaintiffs were occupying the vehicle, and were not outside the vehicle as in Heard . In Childs v American Commercial Liability Ins Co , 177 Mich App 589, 591; 443 NW2d 173 (1989), 3 the plaintiff was sitting on the bed of his parked truck await ing repairs when another vehicle driving on the st reet struck a vehicle parked b ehind plaintiff’s truck, which then struck plaintiff’s truck. The p laintiff’s truck was uninsured, but American Commercial insured another vehicle owned by the plaintiff. Id. This Court ruled that sitting on the back of a pickup truck was “identifiable with the use of the truck as a motor ve hicle,” and the plaintiff was occupying it for purposes of MCL 500.3106. Without any discuss ion of whether any security was actually required under MCL 500.3101, 4 the Court ruled that the plaintiff was therefore excluded from PIP benefits under MCL 500.3113(b). Id. at 593.

2 MCL 500.3106 is substantially similar today. However, part (c ) no longer makes specific reference to injuries sustained in the course of employment, bu t rather only generally references subsection (2): “Except as provi ded in subsection (2), the inj ury was sustained by a person while occupying, entering into, or ali ghting from the vehicle.”

3 Childs is not binding on this Court because it was decided before 1990 . MCR 7.215(J)(1).

4 If Childs had done so, it would have been required to apply a version of the statute that no longer exists and therefore would have had no relevance in any event. The accident in Childs occurred on September 26, 1986, at which time MCL 500.3101(1) p rovided, in relevant part, that “Security shall be in effect cont inuously during the period of registration of the motor vehicle.” 1984 PA 84, effective April 19, 1984. Subsequently, that statu tory provision was amended to provide, in relevant part, that “ Security shall only be require d to be in effect during the period the motor vehicle is driven or moved upon a highway.” 1987 PA 168, effective November 9, 1987 with “immediate effect.” In other words, Childs is not relevant authority regarding any requirement to maintain insurance under MCL 500.3101(1) because the critical portion of that statute was substantially amende d after the relevant date in th at case.-5- In Adams v Citizens Ins Co of America , unpublished opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 290037), p 1, 5 the plaintiff was injured when a vehicle driving on the road lost control and struck the plainti ff’s mother’s uninsured vehicle, where he was sitting while it was parked in their driveway. Th e plaintiff filed a claim for PIP benefits with the assigned claims facility, and the claim was a ssigned to the defendant. The trial court granted the defendant’s motion for summary disposition, a nd on appeal, the plaintiff’s primary argument was that there was a question of fact regardin g whether he was an “owner” under MCL 500.3113(b), which this Court rejected. On appeal, t he plaintiff also argued that he was not “involved in the accident” under MCL 500.3113(b), but t his Court rejected his claim. Relying on Heard and Childs , this Court referenced MCL 500.3106(1)(c) to conclude that, because the plaintiff was occupying the parked vehicle, he was “involved in the accident” as a matter of law. Id. at 2. Again, in Adams , this Court did not cite or analyze MCL 500.3101 to determine whether any securi ty was actuall y required.

On appeal, the parties do not a ppear to dispute that plaintiff ’s uninsured vehicle was involved in the accident for purposes of MCL 500.3113(b) becaus e all agree that plaintiff was occupying it under MCL 500.3106(1)(c), but instead plaintiff ra ises an argument that was not addressed in the earlier cases. Specifically, plaintiff argues that, under MCL 500.3101, she was not required to maintain security for payment of PPI benefits. Neither defendant has specifically responded to this argument.

In Heard , our Supreme Court explained that the disqualification of an u ninsured owner from entitlement to no-fault benefits is not absolute. Heard , 414 Mich at 145. MCL 500.3113(b) currently provides , in relevant part:

A person is not entitled to be paid personal protection insura nce benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:

* * *

(b) The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the s ecurity required by section 3101 or 3103 was not in effect.

After Heard was decided, in 1987, the Legislature amended MCL 500.3101(1), 1987 PA 168. Under the previous versions of the statute, “Security shall be in effect continuously during the period of registration of the motor vehicle.” See, e.g., MCL 5 00.3101(1), 1972 PA 294. This language suggests that the securi ty was required regardless of whether the vehicle was being driven or parked. Under 1987 PA 168, and the current version o f the statute, that continuous

5 Adams is an unpublished opinion and is not binding under the rule of stare decisis. MCR 7.215(C)(1). Additionally, consideration of unpublished cases is disfavored, but we do so here because of the extensive reliance already placed on this case b y the parties and because of the dearth of other case law, binding or not.-6- coverage is no longer required du ring the period of registratio n of the motor vehicle. 6 Rather, “[s]ecurity is only required to be in effect during the period the motor vehicle is driven or moved on a highway.” MCL 500.3101(1), 1987 PA 168 and 2015 PA 492.

Plaintiff argues that she was not driving her vehicle at the t ime of the accident because it had just been repaired and was uninsured. She therefore argues that she was not required to maintain the security under the current version of MCL 500.3101 (1). The term “period” is defined as “the completion of a cycle, a series of events, or a single action.” Merriam-Webster ’ s Collegiate Dictionary (11th ed). Because any driving or movement on a highway was co mpleted several days before the accident when plaintiff’s vehicle was m oved from the repair shop to 4th Street, and the vehicle was parked at the time of the accident, we agree with plaintiff’s argument that security was not required at that time, presuming the fact s are as plaintiff states them. 7 Therefore, PIP benefits should not have been excluded under MCL 500.3113(b) and MCL 500.3101(1).

However, we agree with ACIC’s argument that it was nevertheles s entitled to summary disposition pursuant to MCL 500.3114, which governs priority of insurer responsibility for PIP benefits. MCL 500.3114 provides, in relevant part:

(4) Except as provided in subsections (1) to (3), a person suf fering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim pe rsonal protection insurance be nefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the vehicle occu pied.

(b) The insurer of the operat or of the vehicle occupied.

Again, the parties all agree that plaintiff was an occupant of the plaintiff’s vehicle. ACIC was the insurer of the vehicle that struck plaintiff’s vehicle, not of the owner or registrant of the plaintiff’s vehicle. MCL 500.3114(4)(a). Because there was no operator of plaintiff’s vehicle, ACIC was not the insurer unde r MCL 500.3114(4)(b). Therefore, ACIC was entitled to summary disposition. See Allstate Ins Co v Dep ’ t of Mgt & Budget , 259 Mich App 705, 715; 675 NW2d 857 (2003), supersede d by 2008 PA 241, am ending MCL 50 0.3101 (where an insurer is neither the insurer of the owner or registrant, nor the insu rer of the operator, summary disposition should be granted). Farmers, in contrast, as the i nsurer for the assigned claims plan, is the insurer of last priority and would not be entitled to su mmary disposition relief under MCL 500.3114. See Hunt v Citizens Ins Co , 183 Mich App 660, 666; 455 NW2d 384 (1990).

6 See footnote 4.

7 Under the present procedural pos ture of the case, we make that presumption, and certainly we have found nothing in defendants’ briefs suggesting to the cont rary. However, we do not make any decision to that e ffect at this time.-7- We therefore affirm the grant of summary disposition in favor of ACIC, but we reverse the grant of summary disposition in favor of Farmers and remand for further proceedings consistent with this opinion. I n view of plaintiff’s unexcused failure to file the mandatory transcript with this Court, we di rect that both defendants may nevertheless tax costs. MCR 7.219(A). We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ Kathleen Jansen /s/ Cynthia Diane Stephens