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### STATE OF MICHIGAN

COURT OF APPEALS

DODA NICAJ and AGA NICAJ,

Plaintiffs-Appellees,

and

DETROIT MEDICAL CENTER and WAYNE STATE UNIVERSITY PHYSICIANS GROUP,

Intervening-Plaintiffs-Appellees, UNPUBLISHED March 23, 2017

v No. 329485 Wayne Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 13-014246-NF

Defendant-Appellee,

and

TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, d/b/a TRAVELERS INSURANCE COMPANY,

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. In this action to recover first-party personal injury protecti on (PIP) no-fault benefits, defendant, Travelers Insurance Company (Travelers), appeals by leave granted 1 two orders entered by the trial court that, in relevant part, found Travel ers to be the highest-priority insurer

1 Nicaj v State Farm Mut Auto Ins Co , unpublished order of the Court of Appeals, entered October 30, 2015 (Docket No. 329485).-2- and liable to pay benefits for injuries plaintiff Doda Nicaj 2 suffered in a motor vehicle accident when he was rear-ended by a semi-truck. At the time, plaintiff was driving a truck that had been purchased by plaintiff’s business partner and was used exclusiv ely for that business. The business, Metropolitan Baking Di stributing (“Metro”) maintained an insurance policy with Travelers that covered the truck. Defendant State Farm insured plaintiff’s and his wife’s personal vehicles, which were not involved in the accident. Th ere appears to be no dispute that plaintiff is entitled to benefits; the issue is which insurer i s of highest priority. Travelers raises a single argument, contending that the trial court erred in findi ng that the truck was owned by Metro. We affirm.

A grant or denial of summary disposition is reviewed de novo o n the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a mot ion under MCR 2.116(C)(10), which tests the factual sufficiency of the compla int, this Court considers all evidence submitted by the parties in the light most favorable t o the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id . at 120. “Issues of statutory interpre tation are reviewed de novo.” City of Riverview v Sibley Limestone , 270 Mich App 627, 630; 716 NW2d 615 (2006).

In context, ownership is defined by statute. Under the no-fau lt act, a person injured in an automobile accident generally seeks benefits from their own ins urer. Spencer v Citizens Ins Co

, 239 Mich App 291, 301; 608 NW2d 113 (2000); MCL 500.3114(1). I n this case, that would undisputedly be State Farm. However, certain exceptions supers ede that general rule. Titan Ins Co v American Country Ins Co , 312 Mich App 291, 298; 876 NW2d 853 (2015). In relevant part, MCL 500.3114(3) provides that an employee and their spous e injured in “a motor vehicle owned or registered by the employer” seeks benefits from the ve hicle’s insurer. This statute was “designed to allocate the cost of injuries resulting from use o f business vehicles to the business involved through the premiums it pays for insurance.” Celina Mut Ins Co v Lake States Ins Co

, 452 Mich 84, 89; 549 NW 2d 834 (1996). Consequently, Michigan a ppellate courts have read the statute broadly. Id

. There is no dispute that plain tiff was injured, was an employe e of Metro, and was an occupant of the vehicle at the time of the accident. Indeed, a s noted, there is no dispute that plaintiff is entitled to benefits. The only element disputed i s whether the vehicle was “owned or registered by an employer” of plaintiff. If so, Travelers, the insurer of that vehicle, would be liable for plaintiff’s benefits.

At the time of the accident, “owner” was defined at MCL 500.31 01(2)(h). It has since been amended by 2014 PA 492 and is now defined at MCL 500.3101( 2)(k); however, we must use the definition in effect when the accident occurred. Under that statute, three possible definitions of ownership were set forth, one of which the parti es agree is inapplicable. The relevant possible de finitions are:

2 Because Aga Nicaj’s claims are not before this Court at this t ime, we refer to Doda Nicaj as “plaintiff” in the singular.-3- ( i ) A person renting a motor vehicle or having the use thereof, u nder a lease or otherwise, for a period tha t is greater than 30 days.

( ii ) A person who holds the legal title to a vehicle, other than a person engaged in the business of leasing motor vehicles who is the lessor of a m otor vehicle pursuant to a lease providing for the use of the motor vehicle by the lessee for a period that is greater than 30 days. [ Titan Ins Co v State Farm Mut Auto Ins Co

, 296 Mich App 75, 86; 817 NW2d 621 (2012), quoting MCL 500.3101( 2)(h).]

The evidence in the record of who held title to the vehicle is conflicting: the only physical title certificate showed plaintiff’s bus iness partner to hold title, and plaintiff believed that the partner held title to the vehicle personally; the partner, however, ave rred that he had transferred title to Metro before the accident occurred. Assessing the credibility of a witness and settling contested facts in order to make a decision of law is required to be left to a jury. White v Taylor Distrib Co

, Inc , 482 Mich 136, 142-143; 753 NW2d 591 (2008). A genuine questi on of material fact exists regarding title ownershi p of the vehicle relevant to MCL 500.3101(2)(h)( ii ).

In contrast, however, despite the use of the word “person” in MCL 500.3101(2)(h)( i ), that word extends to business entities. See Besic v Citizens Ins Co of the Midwest , 290 Mich App 19, 31-32; 800 NW2d 93 (2010). Further, unde r the no-fault act, a motor vehicle can have more than

one owner. Ardt v Titan Ins Co , 233 Mich App 685, 691-692; 593 NW2d 215 (1999). Consequently, plaintiff, his partner, and Metro could all be “owners” of the vehicle if they had “use” of it for at least 30 days. This Court has described the use requirement as “ proprietary or
possessory usage, as opposed to merely incidental usage under the directi on or with the permission of another.” Ardt , 233 Mich App at 691.

The evidence is that plaintiff and his partner decided to open a business together in 2012. Their business plan was to purch ase bread from the bakery in Mi chigan, drive the bread to Illinois where bread was more expensive, and sell the bread for a profit. The partner, who lived in Illinois, organized the business under the laws of Illinois and called it Metro. They considered the business a partnership. In mid-2013, the partner purchased the vehicle for the business for the purpose of transferring the bread from the bakery to the cu stomers in Illinois. There is no evidence that the vehicle was ever used for any other purpose. On the day in question, undisputedly more than 30 days aft er the vehicle’s purchase, pl aintiff was in the process of driving a load of bread to Illinois, as he had done twice a wee k until then. Plaintiff’s practice was to spend two or three days making deliveries in Illinois, s taying in hotels overnight with the vehicle parked in the motels’ lots, drive back home, leaving th e vehicle in his driveway overnight, and then drive it back to the bakery to repeat the c ycle. The unrefuted evidence is that the vehicle was never used for any other purpose, and in partic ular never for personal uses. Plaintiff testified that he cons idered all of that as work for Metro.

Clearly, Metro’s use of the veh icle was “proprietary” in natur e; considering it was used solely for the purpose of gaining profits for Metro. See Ardt , 233 Mich App at 691-692. Indeed, before the trial court, Travelers repeatedly argued that plaint iff had use of the vehicle for 30 days pursuant to MCL 500.3101(2)(h)( i ). Travelers argued that that should bar plaintiff from receiving benefits, but the same argument can be applied to Met ro’s ownership, which is far more strongly in evidence. Plaintiff’s use of the vehicle was only “proprietary” to the extent that-4- it benefitted Metro directly, an d himself only secondarily as a partner of the business; he did not have any “proprietary” use of the vehicle for his personal life . Had his use of the vehicle been truly “proprietary” in nature, he woul d have felt free to use it for personal outings as well.

Consequently, outstanding questi ons of formal, legal title are simply irrelevant. The facts plainly establish that Metro had the “use thereof” for more tha n 30 days. MCL 500.3101(2)(h)( ii ). Multiple parties’ ownership of the vehicle are not mutually exclusive. Ardt

, 233 Mich App at 691-692. Therefore, because Metro was an owner of the vehicle and Travelers undisputedly insured it, pursu ant to MCL 500.3114(3), plaintiff was an employee driving an employer-furnished motor vehicle insured by Travelers on the da y of the accident. For such instances, MCL 500.3114(3) requires that the insurer of the emp loyer-furnished vehicle have the highest priority for payment of no-fault benefits. The trial c ourt’s grant of summ ary disposition, to the extent it is before us, 3 was proper.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy /s/ Amy Ronayne Krause

3 We express no opinion regardi ng any other portion of the trial court’s orders.