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

ROBERT WHITNEY,

Plaintiff-Appellant,

UNPUBLISHED

December 15, 2022

v No. 360647

Midland Circuit Court

NEAL MARVIN WILCOXSON, and PMP

ENTERPRISES, INC,

LC No. 21-7767-NI

Defendants-Appellees.

Before: SHAPIRO, P.J., and BORRELLO and YATES, JJ.

PER CURIAM.

Plaintiff, Robert Whitney, suffered severe injuries when his car, which was disabled on the 

side of a freeway, was hit by a truck defendant Neal Marvin Wilcoxson was driving for defendant 

PMP Enterprises, Inc. (PMP). Plaintiff had no motor-vehicle insurance at the time of the collision. 

Plaintiff’s complaint set forth claims for negligence and motor vehicle ownership liability pursuant 

to MCL 257.401. The trial court awarded summary disposition to defendants on both claims under 

MCR 2.116(C)(7) based on the preclusive language of the no-fault act, MCL 500.3135(2)(c), that 

applies to those “injured while operating a motor vehicle that is both owned by them and uninsured 

in violation of MCL 500.3101.” Brickey v McCarver, 323 Mich App 639, 648; 919 NW2d 412 

(2018). Because the trial court erred in applying the no-fault act’s preclusive language to foreclose

plaintiff’s claim for noneconomic damages because he was an uninsured driver “operating a motor 

vehicle” at the time of the collision, we reverse and remand for further proceedings.

I. FACTUAL BACKGROUND

On March 3, 2021, plaintiff was driving westbound on US-10 when his vehicle died, so he 

coasted to the side of the freeway and stayed in the disabled vehicle. Defendant Wilcoxson, who 

was driving a semi-truck for PMP westbound on US-10, lost control of his truck and hit plaintiff’s

disabled vehicle. Both vehicles overturned and plaintiff suffered numerous significant injuries as 

a result of the crash. On April 26, 2021, plaintiff filed a two-count complaint against Wilcoxson 

and PMP claiming “negligence/gross negligence” and “motor vehicle ownership liability” under 

MCL 257.401 and requesting damages for pain and suffering, mental anguish, and other losses. 
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Defendants asserted, as an affirmative defense, that “the Proofs may show that one, some or all of 

Plaintiff’s claims are barred because Plaintiff did not have the requisite residual liability coverage 

as required by the Michigan No-Fault Act.”

Defendants eventually moved for summary disposition pursuant to MCR 2.116(C)(7), (8), 

and (10), contending that plaintiff was the sole owner of the vehicle Wilcoxson hit and that plaintiff 

had no insurance for the vehicle at the time of the crash. Defendants argued that because plaintiff 

was operating his vehicle without insurance at the time of the collision, he was precluded by MCL 

500.3135(2)(c) from recovering noneconomic damages. Plaintiff effectively conceded that he had 

no motor-vehicle insurance at the time of the collision, but he opposed summary disposition based 

on the fact that he was not operating his vehicle at the time of the crash, as contemplated by MCL 

500.3135(2)(c). From the bench, the trial court ruled that plaintiff’s uninsured status foreclosed 

his request for noneconomic damages, stating: “The fact that [plaintiff’s vehicle] was, you know, 

motionless on the side of the road at the time it was hit, I – I don’t believe makes any difference 

under the case law as I understand it to be.” The trial court built that assertion on the premise “that 

there is no question of fact that Plaintiff was operating a vehicle on a highway without insurance” 

because his “car would not have been hit had he not been operating the vehicle on a highway.” As 

a result, the trial court awarded summary disposition to defendants and memorialized its decision 

in an order issued on March 7, 2022. Plaintiff thereafter appealed.

II. LEGAL ANALYSIS

Plaintiff contends that the trial court erred in invoking MCL 500.3135(2)(c) to preclude his 

claim for noneconomic damages. Although plaintiff readily concedes that he had no motor-vehicle 

insurance at the time of the collision, he insists that there exists an issue of fact as to whether he 

was operating his vehicle at the time of the crash that caused his injuries. The trial court awarded 

summary disposition to defendants “on an immunity defense for purposes of [MCR 2.116](C)(7),”

and “[t]his Court reviews de novo a circuit court’s decision on a motion for summary disposition 

brought under MCR 2.116(C)(7).” Altobelli v Hartmann, 499 Mich 284, 294-295; 884 NW2d 537 

(2016). Furthermore, the trial court’s invocation of “immunity is a question of law that this Court 

reviews de novo on appeal.” Beals v Michigan, 497 Mich 363, 369; 871 NW2d 5 (2015).

The outcome of this appeal turns upon MCL 500.3135(2)(c), which states that:

Damages must not be assessed in favor of a party who was operating his or her own 

vehicle at the time the injury occurred and did not have in effect for that motor 

vehicle the security required by section 3101(1)1at the time the injury occurred.

 

1 Under MCL 500.3101(1):

Except as provided in sections 3107d and 3109a, 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 and property protection insurance as 
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We have expressly stated that “[t]he language of MCL 500.3135(2)(c) is unambiguous: individuals 

injured while operating a motor vehicle that is both owned by them and uninsured in violation of 

MCL 500.3101 are not entitled to recover damages.” Brickey, 323 Mich App at 648. Accordingly,

under MCL 500.3135(2)(c), damages under MCL 500.3135(1) “must not be assessed in favor of a 

party” if two conditions are satisfied. First, the party “was operating his or her own vehicle at the 

time the injury occurred[.]” MCL 500.3135(2)(c). Second, the party “did not have in effect for 

that motor vehicle the security required by section 3101(1) at the time the injury occurred.” Id.

The trial court believed that defendants did not need to establish that plaintiff was operating 

his vehicle at the time the injury occurred. That understanding conflicts with the plain language 

of MCL 500.3135(2)(c). The trial court cited Dewey v Auto Club Group Ins Co, unpublished per 

curiam opinion of the Court of Appeals, issued February 20, 2020 (Docket No. 346556), as a basis 

for that approach. To the extent that the panel in Dewey concluded that it is irrelevant whether the 

plaintiff was operating a vehicle at the time of the collision, that approach constitutes an inaccurate 

interpretation of MCL 500.3135(2)(c). Unpublished opinions are not binding on this Court, see 

Paris Meadows, LLC v Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010); see also 

MCR 7.215(C)(1), and to the extent that Dewey conflicts with the unambiguous language of MCL 

500.3135(2)(c), this Court must follow the statute.

In their appellees’ brief, defendants conflate the analysis that must be performed to decide

whether motor-vehicle insurance was required at the time of the injury with the separate question

of whether plaintiff was operating his vehicle at the time of the injury. Whether the injury occurred 

when plaintiff intended the vehicle to be driven on a highway is relevant to whether insurance was 

required at that time. See MCL 500.3101(1). But that inquiry is not relevant in deciding whether 

defendants satisfied the first prong of the MCL 500.3135(2)(c), which requires that plaintiff “was 

operating his or her own vehicle at the time the injury occurred[.]” MCL 500.3135(2)(c). Thus, 

the defendants’ reliance on Shinn v Mich Assigned Claims Facility, 314 Mich App 765; 887 NW2d 

635 (2016), is entirely misplaced. In Shinn, we considered whether, pursuant to MCL 500.3101, 

the plaintiff “was not required to maintain security for payment of PIP benefits because the vehicle 

was not being ‘driven or moved upon a highway’ ” as contemplated by MCL 500.3101(1). Id.

at 773. That analysis based upon the language of MCL 500.3101(1) is entirely separate from 

whether plaintiff here “was operating his . . . own vehicle at the time the injury occurred” as 

envisioned by MCL 500.3135(2)(c).

That leaves us with the plain language of MCL 500.3135(2)(c), which obligates defendants 

to show that plaintiff was operating his own vehicle at the time his injury occurred. The trial court 

explained that plaintiff’s “car would not have been hit had he not been operating the vehicle on a 

highway[,]” so “[t]he fact that it was . . . motionless on the side of the road at the time it was hit, I 

don’t believe makes any difference under the case law as I understand it to be.” That reasoning 

cannot be squared with the requirement that plaintiff “was operating his . . . vehicle at the time the 

 

required under this chapter, and residual liability insurance. Security is only 

required to be in effect during the period the motor vehicle is driven or moved on a 

highway.
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injury occurred.” MCL 500.3135(2)(c) (emphasis added). Thus, we must reverse the trial court’s 

award of summary disposition under MCR 2.116(C)(7) and remand the case to the trial court for 

additional proceedings consistent with this opinion.2

Reversed and remanded for further proceedings. We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Stephen L. Borrello

/s/ Christopher P. Yates

 

2 Plaintiff testified in his deposition that his vehicle had “died” so he had coasted to the side of the 

road and was “sitting there.” Thus, there is at least a question of fact as to whether plaintiff was 

operating his vehicle at the time of his injury. That factual dispute renders summary disposition 

under MCR 2.116(C)(7) inappropriate. See Dextrom v Wexford Co, 287 Mich App 406, 429; 789 

NW2d 211 (2010).