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### STATE OF MICHIGAN

COURT OF APPEALS

MATTHEW DYE, by his Guardian, SIPORIN & ASSOCIATES, INC.,

Plaintiff-Appellee, UNPUBLISHED April 4, 2017

v No. 330308 Washtenaw Circuit Court
ESURANCE PROPERTY & CASUALTY INSURANCE COMPANY and PRIORITY HEALTH, LC No. 14-000516-NF

Defendants/CrossPlaintiffs/Appellees
and

GEICO INDEMNITY COMPANY,

Defendant/CrossDefendant/Appellant,
and

BLUE CROSS BLUE SHIELD OF MICHIGAN,

Defendant-Appellee.

.

Before: B ECKERING , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

.
In this interlocutory appeal i nvolving a dispute about the pay ment of personal injury protection (PIP) benefits, defe ndant/cross-defendant Geico appe als by leave granted 1 the trial court’s November 13, 2015 order denying Geico’s motions for sum mary disposition as to

1 Matthew Dye v Esurance Prop & Cas Ins Co , unpublished order of the Court of Appeals entered April 5, 2016 (Docket No. 330308).-2- plaintiff Matthew Dye 2 and defendant/cross-plaintiff Es urance, and granting their sum mary disposition motions against Geico. 3 All summary disposition motions sought relief pursuant to MCR 2.116(C)(10)(no genuine issue of material fact, and moving party entitled to judgment as a matter of law). On appeal, Geico contends that the trial court erred in finding plaintiff’s father to be an “owner,” for purposes of the no-fault act, MCL 500.3101 et seq ., of the vehicle plaintiff was driving at the time he sustained injuries, and in finding a n enforceable settlement agreement between Geico and Esurance requir ing Geico to reimburse Esuranc e for PIP benefits already paid to plaintiff. For the reasons set forth herein, we revers e and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff suffered a traumatic brain injury and other serious injuries in a September 26, 2013 motor vehicle accident while driving a 1997 BMW that he ha d purchased two months earlier. At the time of the purchase, plaintiff’s father, Paul Dye, registered the vehicle on his son’s behalf at the Secretary of State’s Office and obtained in surance for it from Esurance online; however, the declarations page of the policy only ident ifies Paul as the named insured. Plaintiff’s wife, Lisa, whom he had married in May of 2013, own ed a Dodge Caravan insured under a Geico policy; neither plai ntiff nor the BMW were listed on Lisa’s policy.

When neither Geico nor Esurance paid plaintiff’s PIP benefits, plaintiff filed a complaint against both alleging breach of contract. Thereafter, Esurance paid plaintiff approximately $388,068.36 in PIP benefits. Subsequently, it was discovered t hat plaintiff was living with his wife at the time of the accident, not his father, thus making G eico higher than Esurance in the order of priority for payment of PIP benefits. Thereafter, Gei co acknowledged to plaintiff and to Esurance that it was “primary,” and requested demands from both . Esurance responded with a demand for $388,068.36 in benefits paid, plus legal fees, which Esurance was still “pulling together” but estimated would be around $3,000, and an agreemen t that Geico would “take over
the claim.”

On October 20, 2014, with its demand still unresolved, Esuranc e’s attorney sent Geico’s attorney an e-mail stating: “I am out of time on this file to wait for a resolution. I will need to proceed with a motion for leave to file a cross-claim this week if we are not resolved by tomorrow.” The following day, Geico’s attorney wrote in respon se, “I just spoke with my adjuster, they are going to send the check to our office tomorr ow made payable to Esurance. I am working on a Release . . . .”

On November 5, 2014, Geico e-mailed Esurance the following:

2 The actual plaintiff is Matth ew Dye’s guardian, Siporin and As sociates. However, as the parties refer to Dye as “plain tiff,” we will do the same for th e sake of consistency.

3 Although Priority Health and Blue Cross Blue Shield of Michiga n are named as appellees, they have not submitted briefs and are not participating in this app eal.-3- Please find attached for your review the draft of the release a nd settlement for the amount of $391,212.54.

The settlement number comes from:

The amount Esurance has paid to date in benefits for or on beha lf of Mr. Dye: $388,068.54 4

Attorney fees: $3,019.00

Costs: $125.18

Upon your approval, please send back a signed copy and we will forward the check in the amount of $388,068.36 and will immediately request a check from our client for the remaining ba lance. I would expect that the check for attorney fees and costs to be promptl y forwarded to our office.

The release and settlement agreement attached to Geico’s email indicated in pertinent part that “[f]or sole consideration of the total sum of . . . $391.212.54 , ESURANCE . . . does hereby release and forever discharge GEICO . . . from any and all pas t, present and future claims, demands, damages, costs, expenses, actions, and causes of actio n . . . . ”

Later that day, Esurance’s counsel replied that she could not agree to release future claims. “In the “unlikely event that Geico stopped paying for some reason and Esurance was drawn back into the claim, I would not want to waive any future claims.” She wrote, “If you take out the wording ‘past, present or future’ that would cover all claims Esurance would have against Geico through the present . Let me know if that is agre eable.”

The following day, Geico’s counsel responded, “I fully underst and the need for the Release language regarding the Future claims, I will adjust tha t portion accordingly.” Geico’s counsel added that Geico had recently “raised concerns with pay ing any of Esurance’s demands for attorney fees[,]” explaining that he could find no authority requiring Geico to pay Esurance’s attorney fees in circumstances such as these, and invited Esura nce’s counsel to d raw his attention to any such authority that might e xist. Geico’s attorney thank ed Esurance’s attorney for “her constant availability in tr ying to resolve this case.”

On November 10, 2014, Esurance’s attorney e-mailed Geico’s att orney indicating that she was “confused” because she “thought we were settled?” She expressed her surprise and frustration that Geico was questioning whether to pay Esurance’ s attorney fees. She wrote, “[t]hey are incredibl y lucky that they are not facing a far big ger attorney fee and interest from the claimant” and asking Geico’s atto rney to forward the revised re lease so they could wrap matters up. Esurance’s attorney did not i ndicate that she would agree to forego payment of attorney fees.

4 Now and again in the record there appears an eighteen-cent var iance in the PIP benefits Esurance paid to plaintiff.-4- When Geico did not reply, Esuran ce repeated its request for the revised release on November 12,
2014.

On November 13, 2014, Barnes v Farmers Ins Exch , unpublished opinion per curiam of the Court of Appeals, issued July 29, 2014 (Docket No. 314621), was re-designated as “for publication,” and Geico withdrew its offer. 5 Subsequently, Esurance filed a cross-claim against Geico requesting a declaratory judgment that Geico was the insurer of highest priority for plaintiff’s PIP benef its, and alleging that Geico breached its agreement to reimburse Esurance for the benefits paid, pl us attorney fees.

In separate depositions taken i n June 2015, plaintiff, Paul, a nd Lisa asserted that Paul was effectively a co-owner of the BM W plaintiff was driving at the time of the accident. Paul testified that when plaintiff went to Afghanistan in 2010 and 2 011, he executed a military power of attorney giving Paul the leg al authority to conduct transact ions on his behalf and to access his bank accounts, and Paul said he continued to provide whatever h elp he could to plaintiff after he returned from deployment. Paul testified that he and plaintiff discussed the purchase of the BMW, and that he contributed to the purchase by obtaining and p aying for insurance for the car on Esurance’s website, physicall y going to the Office of the Se cretary of State and registering the car—although he registered it in plaintiff’s name by exercising a power of attorney given him by plaintiff—and by paying the regis tration fee. Paul testified t hat he could use the BMW at his discretion, but acknowledged that he would make prior arrangeme nts to make sure that no one else needed the car. Paul also testified that all of the Dye f amily members’ vehicles were “available for [] use kind of as a matter of right as being par t of the family,” though they would not take them without asking. A ccordingly, he “had the right t o use the [BMW] . . . as part of the kind of Dye fleet of vehicles,” and that plaintiff had the righ t to Paul’s vehicle when he wanted
to do so.

In their depositions, plaintiff and Lisa generally agreed with Paul’s representations. Plaintiff testified that he paid the purchase price for the BMW , paid for its gas, and probably would have paid for repairs had it needed any during the approx imately two months that he owned it before the accident. Nevertheless, he testified that Paul could use the BMW at Paul’s own discretion, that when it came to vehicles, that “it was mor e than, you know, back and forth use and when you needed,” and that Paul was a “part owner.” Li sa testified that when Paul took part in the discussion about purchasing the BMW, the understand ing was that Paul could use it whenever he wanted to. She agreed that during the five-year pe riod that she has been in a relationship with plaintiff, “Matt and his dad kind of intercha nge cars and vehicles at will, kind of a family, Dye vehicle deal.”

Geico moved for summary disposition of Esurance’s cross-compla int, asserting that the e-mail exchanges in November 2014 showed that Geico and Esuranc e had not agreed on all of

5 As discussed elsewhere in t his opinion, the Court held in Barnes that “when none of the owners maintains the requisite coverage , no owner may recover PIP bene fits.” Barnes v Farmers Ins
Exch , 308 Mich App 1, 8-9; 862 NW2d 681 (2014). Thus, a major issu e in the instant case became whether Paul was considered an owner or registrant of th e BMW under the no-fault act.-5- the terms of a settlement before Geico withdrew its offer. Gei co also moved for summary disposition of plaintiff’s claim, asserting that plaintiff was not entitled to PIP benefits in light of

Barnes because he owned the subject vehi cle but had not insured it and the person who had insured it, Paul, was not an owner as defined in MCL 500.3101(2 )(k). Esurance moved for summary disposition on its cross complaint to enforce its alleg ed settlement agreement with Geico and to have the court declare Geico the insurer of first priority with regard to plaintiff’s PIP benefits. Lastly, plainti ff moved for summary disposition, contending in relevant part that

Barnes was wrongly decided, and that Paul was an “owner” and a “regis trant” for purposes of the no-fault act because he had the right to use the BMW and he had physically registered the
vehicle.

Rejecting Geico’s Barnes defense, the trial c ourt summarized its f indings as follows:

[E]ven under the Barnes decision the request is granted and I find there’s no genuine issue of fact and I find summary disposition both for t he Plaintiff and for Esurance, finding coverage for the accident to Matt Dye against Geico. The only issue is the amount of damages that each of you are [sic] entit led to receive.

As noted above, the trial court entered an order granting plain tiff’s and Esurance’s motions for summary disposition and de nying those brought by Geico.

I. Analysis

A. STANDARD OF REVIEW

This Court reviews a trial court’s decision on a motion for su mmary disposition de novo. Auto Club Group Ins Co v. Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2002). The parties brought their respective summary disposition motions un der MCR 2.116(C)(10), which tests the factual sufficiency of a claim. Smith v Globe Life Ins Co , 460 Mich 446, 454; 597 NW2d 28 (1999). “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, de positions, admissions, and documentary evidence filed in the action or submitted by the pa rties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). “Where the moving party has pro duced evidence in support of the motion, the opposing party bears the bur den of producing ev idence to establis h that a genuine issue of disputed fact exists.” Ardt v Titan Ins Co , 233 Mich App 685, 688; 593 NW2d 215 (1999). If the documen tary evidence shows that there is no gen uine issue of material fact and the moving party is entitled to judgm ent as a matter of law, the tr ial court may grant the motion. Quinto , 451 Mich at 362; MCR 2.116(C)(10).

B. PLAINTIFF’S ENTITLEMENT TO PIP BENEFITS: DETERMINATION
WHETHER PAUL DYE WAS AN OWNER OR REGISTRANT OF THE BMW

Geico admits that plaintiff’s st atus as a resident of its insu red, Lisa, at the time of the accident would make Geico first in priority for his PIP benefit s under the no-fault act. However, Geico argues that plaintiff is i neligible for coverage from any insurance because Paul, the person who insured the BMW plaintiff was driving, was not an owner or registrant of the vehicle. Consequently, in light of Barnes , plaintiff, as an owner of the BMW, is not entitled to be paid-6- PIP benefits pursuant to MCL 500.3113. Geico contends on appea l that the trial court erred in determining that plaintiff was entitled to PIP benefits by find ing that Paul was an owner and a registrant of the BMW.

“Normally, a person who sustains an accidental bodily injury i n a motor vehicle accident must first look to no-fault insurance policies in his household for no-fault benefits.” Michigan Mut Ins Co v Farm Bureau Ins Group , 183 Mich App 626, 630; 455 NW2d 352, (1990), citing MCL 500.3114(1). However, under MCL 500.3113(b), a person is n ot entitled to personal protection [PIP] benefits if, at the time of the accident, he o r she “was the owner or registrant of a motor vehicle . . . involved in the accident with respect to which the security required by
section 3101 or 3103 [6] was not in effect.” MCL 500.3101( 1) provides in relevant part that “[t]he owner or registrant of a motor vehicle required to be registere d in this state shall maintain security for payment of benefits under personal protection insu rance . . . .” Although a motor vehicle may have more than one owner for purposes of the no fau lt act, see Ardt , 233 Mich App at 692, it is not sufficient that a vehicle is insured by just anyone, see Barnes , 308 Mich App 1, 8-9; 862 NW2d 681 (2014). At least one owner or registrant mus t have the insurance required by MCL 500.3101(1), and “when none o f the owners maintains the requisite coverage, no owner may recover PIP benefits.” Id

.

1. REGISTRANT

Geico contends that the trial court erred as a matter of law i n finding that Paul was a “registrant” of the BMW for purposes of MCL 500.3101(1). We ag ree.

Although “ ‘registrant’ is not cl early defined in the Insuranc e Code,” Titan Ins Co v State
Farm Mut Automobile Ins Co , 296 Mich App 75, 86; 817 NW2d 621 (2012), this Court has made clear that the “registrant” is the person whose name is on the vehicle’s title at the time of the accident for which PIP benefits are sought, see id . at 92. See also Cason v Auto-Owners Ins Co

, 181 Mich App 600, 607-608; 450 NW 2d 6 (1989) (concluding that t he person named on the title at the time of the accident is the registrant).

In the case at bar, although it is undisputed that Paul was th e one who physically went to the Office of the Secretary of State and signed the “Applicatio n for Michigan Vehicle Title,” it is equally undisputed that he did so on plaintiff’s behalf, and si gned the application as plaintiff’s attorney-in-fact under the power of attorney granted him by pla intiff. Paul testified that he took plaintiff’s handwritten note gr anting him power of attorney to the Secretary of State’s office, and registered the BMW in plaintiff’ s name, not in his own. In the absence of any evidence that
Paul’s name was on the vehicle’s title at the time of the accid ent for which PIP benefits are sought, Paul cannot, as a matter of law, be the “registrant” of the BMW, Titan Ins Co , 296 Mich App at 92, and the trial court er red in ruling otherwise.

6 MCL 500.3103 is not applicable to the present case as it addre sses motorcycle security requirements.-7- 2. OWNER

Geico argues that the trial court erred in finding Paul to be an owner of the BMW for purposes of MCL 500.3101(1) because Paul used the BMW sporadica lly at best, and not in ways consistent with ownership. Conversely, plaintiff contends that Paul was an owner because he had a continuous right to use the BMW and an established patter n of sharing vehicles with plaintiff and other members of his family, and because of the p articular circumstances surrounding plaintiff’s relationship with his father. Esurance simply asserts that Paul was an owner for purposes of MCL 500.3101(1). 7

For purposes of determining whether a person is qualified to r eceive PIP benefits, unless reasonable minds could not differ, “[t]he question of ownership [of a vehicle] is one of fact that has to be decided by the factfinder.” Botsford General Hosp v Citizens Ins Co , 195 Mich App 127, 133-134; 489 NW2d 137 (1992) (citations omitted) (the Cour t concluded that the trial court did not err in permitting the question of a vehicle’s ownership to be decided by the jury rather than granting the insurance company’s motion for a directed ver dict because, “viewing the evidence in the light most favorable to plaintiff, we find that there was a question of fact concerning ownership”).

Relevant to this case, “owner” i s statutorily de fined to inclu de “[a] person renting a motor vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30 days.” MCL 500.3101(2)(k)( i ). “Having the use” of a motor v ehicle for the purpose of defi ning “owner” under MCL 500.3101(2)(k) “means using the vehicle in wa ys that comport with concepts of ownership.” Ardt , 233 Mich App at 690. 8 Ownership implies proprietary or

7 Both plaintiff and Esurance argue in their briefs to this Cour t that resolution of this issue is governed by Iqbal v Bristol West Ins Group , 278 Mich App 31; 748 NW2d 574 (2008), rather
than Barnes , 308 Mich App 1 (2014). In Iqbal , the Court concluded, “that the issue regarding whether [the plaintiff] was the ‘owner’ of the vehicle under MC L 500.3101(2)(k) was irrelevant for purposes of analysis under MCL 500.3113(b), where the vehic le was specifically insured by plaintiff’s brother.” Iqbal , 278 Mich App at 33. In Barnes , the Court held that “when none of the owners maintains the requisite coverage, no owner may recov er PIP benefits.” Barnes , 308 Mich App at 8-9. Based on these statements, plaintiff and Esur ance argue respectively that

Barnes conflicts with Iqbal , or that Barnes stands for the limited holdi ng that where no insurance policy is “in effect,” a vehicle does not meet the coverage req uirements of MCL 500.3101(1). We disagree with both propositions. The issue presented in Iqbalwas whether every owner of a vehicle had to insure the vehicle while the question in Barnes was whether any owner had to
obtain insurance. In Iqbal , the Court was not asked to decide whether insurance procured by someone who was not an owner met the requirement of MCL 500.310 1(1), and a fair reading of the case indicates the Court’s operative assumption that insura nce would be procured by an owner or registrant. Thus, we do not believe that Barnes conflicts with Iqbal or establishes a
new rule of law. Even if it di d, MCR 7.215(J)(1) obligates us to follow Barnes

.

8 Ardt refers to MCL 500.3101(2)(g), which was the relevant provision prior to amendment of the statute by 2014 PA 492, effective January 13, 2015. The am endment addresses the definition-8- possessory usage “as opposed to me rely incidental usage under t he direction or with the permission of another.” Id . at 691; see also Detroit Med Ctr v Titan Ins Co , 284 Mich App 490, 493-494; 775 NW2d 151 (2009) (an i njured driver was not an owne r where she used the vehicle sporadically and subj ect to the owner’s permission).

Although a vehicle may have multiple owners for purposes of MC L 500.3101(2)(k),
Ardt , 233 Mich App at 691, only one of them needs to have the statu torily required no-fault coverage on the vehicle to fulfill the requirements of MCL 500. 3101(1), Iqbal v Bristol West Ins Group , 278 Mich App 31, 45; 748 NW2d 574 (2008). However, as previo usly indicated, the person who obtains the statutorily required insurance coverage must be an owner or registrant of
the insured vehicle. Barnes , 308 Mich App at 8-9. Finally, nothing in the definition of “ owner” set forth by MCL 500.3101(2)(k)( i ) requires

(1) that a person has at any time actually used the vehicle, or (2) that the person
has commenced using the vehicle at least thirty days before the accident occ urred. The statute merely contemplates a situation in which the person is renting or using a vehicle for a period that is greater than thirty days. [ Twichel v MIC Gen Ins Corp , 469 Mich 524, 530-531; 676 NW2d 616 (2004)].

Thus, “[i]t is the nature of the right to use the vehicle—wheth er it is contemplated that the right to use the vehicle will remain in effect for more than thirty d ays—that is controlling, not the actual length of time that has elapsed.” Id . at 532.

In the case at bar, Geico conten ds that Paul’s use of the BMW was sporadic and incidental at best. Paul did not contribute to the BMW’s purch ase price, could not remember driving it, could not remember garaging it, did not have his ow n set of keys to the car, and said he would ask plaintiff’s permission if he ever had reason to us e it. The trial court, however, found dispositive the deposition testimony of plaintiff and Pau l asserting Paul’s continuous right to use the BMW.

Indeed, both plaintiff and Paul testified that Paul could use the car at his discretion and without direction or permission from anyone. Although Paul tes tified that he would ask first before swapping vehicles, his a nd plaintiff’s testimony indicat es that obtaining permission was more for the purpose of coordinating use of the vehicles and re specting the rights of others than for asking for the right to use an otherwise available vehicle. In addition, as was the case in
Detroit Med Ctr , 284 Mich App at 493, there was a significant relationship bet ween Paul and plaintiff. The relationship appe ars to have been close, both g eographically, as Paul lived only a few blocks from plaintiff, and pe rsonal, as Paul served as plai ntiff’s attorney-in-fact for plaintiff’s personal business ma tters during plaintiff’s deploy ment to Afghanistan and assisted
him in like matters thereafter. Moreover, Paul undertook to re gister the BMW with the Secretary of State’s Office, albeit on plaintiff’s behalf, but he also pa id the registration fee and the

of “owner” in the context of mot orcycle ownership and, therefor e, is not applicable to the instant dispute.-9- insurance premium. Plaintiff also testified that he considered Paul to be a “part owner.” 9 The continuous nature of Paul’s right to use the BMW, testimony ass erting his right to use the car at his discretion, the broader cont ext of plaintiff’s and Paul’s r elationship, and their history of shared vehicle usage supports the trial court’s finding that Pa ul was an owner for purposes of the
no-fault act.

Nevertheless, as Geico points out, Paul did not have his own s et of keys and, although plaintiff testified that a spare set was available to Paul to t ake and use at will, reasonable minds
could differ as to whether the na ture of Paul’s access to the k eys supported or hindered a proprietary or possessory use of the BMW. In addition, reasona ble minds could differ as to whether Paul’s actual usage of the BMW during the two months pr ior to the accident sufficiently establishes a pattern of regular usage. The testimony itself i s somewhat conflicting; Paul could
not remember 10 driving or parking the car at his house during the two months since it had been purchased, but plaintiff remembered that Paul had kept the car overnight, and Lisa remembered
that Paul had driven it once or twice for a day or two during t he two months that they had the car. Lisa’s description of Paul’s use of the car might signify a “sp otty and exceptional pattern,” and her testimony that Paul used the car because they needed to use his vehicle appears to be usage that was “merely incidental” rather than “proprietary or posses sory.” Ardt , 233 Mich App at 691. However, plaintiff only had the car for two months, and i t might be questionable whether a pattern of any sort could arise during such a short period. Fu rthermore, as noted above, in
Twichel , 469 Mich at 532, our Supreme Court has suggested that, when d etermining whether a person is an owner for purposes of the no-fault act, a person’s actual usage of a vehicle is analytically subordinate “to the nature of a person’s right to use the vehicle.”

The relationship between plaintiff and Paul, their history of sharing vehicles, and testimony regarding the nature o f Paul’s continuous right to us e the BMW without direction or permission may support the trial court’s finding that Paul is a n owner for purposes of the no-fault act. However, circumstances surrounding Paul’s access to the c ar keys and the actual usage Paul made of the car during the two months prior to the accident cou ld lead a reasonable juror to a contrary conclusion. Accordingly, we conclude that the trial c ourt erred in granting plaintiff summary disposition, as reasonable minds could differ as to whe ther Paul was an owner of the
BMW. Botsford General Hosp , 195 Mich App at 133-134.

9 Although Geico takes issue with the admissibility of plaintiff ’s testimony that Paul was a “part owner” of the BMW, claiming that it calls for a legal conclusio n, plaintiff’s understanding regarding his father’s ownership interest in the BMW is certain ly relevant to the issue under consideration by the factfinder, and the factfinder is free to make credibility determinations and weigh all of the evidence before determining whether Paul was a n owner. Notably, it “is the nature of the right to use the vehicle—whether it is contemplated that the right to use the vehicle will remain in effect for more than thirty days—that is control ling. . . . ” Twichel , 469 Mich at 532 (emphasis added).

10 Paul testified that he suffers from multiple sclerosis, and th at the disease affects his memory.-10- C. SETTLEMENT AGREEMENT

Geico contends that the trial c ourt erred by finding that Geic o and Esurance had an enforceable settlement agreement regarding Geico’s assumption o f responsibility for the claim and reimbursement to Esurance for PIP benefits paid. Geico arg ues that the e-mails relied upon by the trial court to reach this conclusion clearly show that t here was no “meeting of the minds” with regard to all of the essential terms of the alleged settle ment. Esurance argues that the trial court ruled correctly because t he emails reveal they did come t o an agreement and Geico breached the agreement by attempting to back out of the settlem ent upon issuance of Barnes as a published opinion.

Under MCR 2.507(G), in order for a settlement agreement to be binding, it must be made in open court or “in writing, subs cribed by the pa rty against w hom the agreement is offered or by that party’s attorney.” An email exchange can satisfy the “wri ting, subscribed” requirement. Kloian v Domino’s Pizza LLC , 273 Mich App 449, 459; 733 N W2d 766 (2006).

The existence and interpretati on of a contract are questions
of law reviewed de novo. An agreement to settle a pending laws uit is a contract and is to be governed by the legal principles applicable to the construction and interpretation of contracts. Before a contract can be completed, there must be an offer and acceptance. Unless an acceptance is unambiguous and in strict conformance with the offer, no contract is formed. Further, a contract requires mutual assent or a meeting of the minds on al l the essential terms. [ Id . at 452 (quotation marks and citations omitted).]

The record shows that Geico extended an offer to pay Esurance $391,212.54 in exchange for Esurance’s agreement not to sue Geico for and to release Ge ico from “any and all past, present, and future claims, demands, costs, expenses” relative to benefits paid to or on behalf of plaintiff in connection with his motor vehicle accident of Sept ember 26, 2013. Esurance did not accept this offer “unambiguous[ly] and in strict conformance wi th the offer.” Id . at 452. Instead, Esurance counter-offered by asking Geico to remove the language about “future claims.” Geico did not accept this counteroffer “unambiguous[ly] and in strict conformance with the offer.” Id

. Although Geico agreed to remove t he language about future claim s, it, too, made a counteroffer, asserting that it would not pay Esurance’s attorney fees and co sts unless shown authority obligating it to do so. The effect of this counteroffer was to change the amount Geico was willing to pay as consideration for Esurance’s release. Howeve r, Esurance did not accept this counteroffer “unambiguous[ly] and in strict conformity with the offer.” Id . Esurance expressed disbelief that Geico was not going to pay Esurance’s relatively small demand for attorney fees. It requested a revised release, but failed to indicate unambigu ously whether it accepted Geico’s counteroffer not to pay attorney fees and costs, and, thus, to reduce its payment to Esurance accordingly, or whether it was standing by its request for atto rney fees and seeking a revised release that removed the “past, present, or future” language. Absent an acceptance that is “unambiguous and in strict conf ormance with the offer, no contr act is formed.” Id

.-11- Esurance relies on Kloian to contend that the parties had an agreement, at least with regard to Geico’s payment of PIP benefits. Esurance’s reliance is misplaced.

In Kloian , the plaintiff offered to settle his lawsuit against the defen dant by accepting “payment of $48,000 in [ex]change for a dismissal with prejudic e of all claims and a release as [sic, of] all possible claims.” Id . at 451. The plaintiff’s attorney conveyed these terms to the defendant’s attorney via e-mail, in response to which the defen dant’s attorney wrote on March 18, 2005, “[Defendant] accepts your settlement offer.” Id . Thereafter, however, the plaintiff decided he wanted “the protection of a mutual release.” Id . Although the defendant cut a check for the plaintiff and indicated that it was going to revise the prior release to reflect the plaintiff’s request for a mutual release, t he plaintiff refused to sign the agreement.

On May 18, 2005, both parties moved the trial court to approve the settlement and close the case, plaintiff’s counsel noting in his motion that, contra ry to the advice of counsel, plaintiff refused to sign the agreement reached by the parties on or arou nd March 18, 2005. Id . at 451- 452. The trial court found that the parties had entered into a binding agreement on March 18, 2005, and that the request for a mutual release constituted a r equest to modify the contract that the defendant accepted. Accordin gly, the trial court issued anorder enforcing the settlement agreement and dismissing the plai ntiff’s claims with prejudice. Id . at 452.

The plaintiff argued on appeal that the trial court erred in e nforcing the settlement agreement because there had not been a meeting of the minds. Id . However, this Court agreed
with the trial court that the M arch 18, 2005 e-mail from plaint iff’s attorney to defendant’s attorney that plaintiff would accept $48,000 in exchange for di smissal with prejudice of all claims and a release from all possible claims constituted a set tlement offer, and the defendant’s e-mail in response constituted an unambiguous acceptance of tha t offer. Id . at 453. The Court explained that these two e-mails demonstrated that “[t]here cle arly was a meeting of the minds on the essential terms of the agr eement[,]” which were “the pay ment of $48,000 by defendant in exchange for a dismissal w ith prejudice and a release.” Id . at 454.

Esurance asserts that under the reasoning of Kloian , the parties had an enforceable agreement on October 21, 2014, th at Geico was at least going to reimburse Esurance for PIP benefits even though, as was the case in Kloian , the parties had not hammered out the details of the release. The flaw in Esurance’s argument is that, unlike t he parties in Kloian , Geico and Esurance never agreed to the tota l Geico would pay in considera tion for Esurance’s release. As indicated above, the releas e recited an offer of $391,212.54; h owever, Esurance took issue with the extent of the release. Geico was willing to revise the rel ease as proposed by Esurance, but Geico indicated that it did not want to pay attorney fees witho ut authority oblig ating it to do so, which amounted to a counteroffe r in exchange for a reduction in the consideration amount to be paid. Esurance never articulated its unambiguous acceptance to forego receipt of attorney’s fees before Geico withdrew its offer

. Although the issuance of Barnes promptly snuffed out what appears to have been a “nearly done” deal, the pa rties had not yet reached a meeting of the minds on all of the essential terms, and the trial court erred in gra nting Esurance’s motion for summary disposition on its cross-claim fo r enforcement of the alleged a greement.-12- III. CONCLUSION

For the reasons set forth above , we conclude that the trial co urt erred as a matter of law in finding Paul Dye a “registrant ” for purposes of MCL 500.3101(1) , and that genuine issues of material fact remain with regard to whether Paul was an “owner” of the vehicle plaintiff was driving at the time of his accident for purposes of determining whether plaintiff is entitled to PIP benefits. We also conclude that the trial court erred in grant ing Esurance’s motion for summary disposition on its cross-claim for enforcement of the alleged s ettlement agreement. Accordingly, we reverse the trial court’s order granting summary disposition to plaintiff and Esurance and remand for further proceedings c onsistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ Stephen L. Borrello