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### STATE OF MICHIGAN

COURT OF APPEALS

MARCUS SNYDER,

Plaintiff-Appellee, UNPUBLISHED January 17, 2017

v No. 329779 Oakland Circuit Court MICHIGAN ASSIGNED CLAIMS PLAN, LC No. 2014-142743-NI

Defendant-Appellant.

Before: T ALBOT , C.J., and J ANSEN and H OEKSTRA , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 the order denying its motion for summary disposition. We reverse and remand for entry of an order grant ing summary disposition in favor of defendant.

This case arises from injuries sustained by plaintiff when he was hit by a “mud bog” operated by Jason Boyd (Jason). The sole issue presented on ap peal is whether the mud bog constituted a “motor vehicle” under the no-fault act, MCL 500.3 101 et seq . Defendant argues that the trial court erred by denying its motion for summary di sposition under MCR 2.116(C)(10) because there was no genuine issue of material fact with regard to whether the mud bog constituted a motor vehicle as defined in the no-fault act, and defendant was entitled to judgment as a matter of law. We agree.

We review de novo a trial court’s decision on a motion for sum mary disposition. Bahri v IDS Prop Cas Ins Co , 308 Mich App 420, 423; 864 NW2d 609 (2014). “The motion for summary disposition ‘tests the factual support for a claim and should be granted if there is no genuine issue as to any material fact and the moving party is e ntitled to judgment as a matter of law.’ ” Id . (citation omitted). “ ‘A genuine issue of material fact exis ts when the record, giving the benefit of reasonable doubt t o the opposing party, leaves o pen an issue upon which reasonable minds might differ.’ ” Id . (citation omitted). When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), we examine “ ‘a ffidavits, pleadings,

1 Snyder v Mich Assigned Claims Plan , unpublished order of the Court of Appeals, entered December 29, 2015 (Docket No. 329779).-2- depositions, admissions, and other documentary evidence submitt ed by the parties in the light most favorable to the party opposing the motion.’ ” Id . (citation omitted).

“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 . . . .” MCL 500.3105(1). The no-fault act defi nes the term “motor vehicle” as follows:

“Motor vehicle” means a vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels. Motor vehicle does not include any of the following:

( i ) A motorcycle.

( ii ) A moped.

( iii ) A farm tractor or other implement of husbandry that is not su bject to the registration requirements o f the Michigan vehicle code unde r section 216 of the Michigan vehicle code, 1949 PA 300, MCL 257.216.

( iv ) An ORV.

( v ) A golf cart.

( vi ) A power-driven mobility device.

( vii ) A commercial quadricycle. [MCL 500.3101(2)(h).]

An off-road vehicle, or ORV, is defined as follows:

“ORV” means a motor-driven recreation vehicle designed for off -road use and capable of cross-country travel without benefit of road or trail, on or immediately over land, snow, ice, marsh, swampland, or other na tural terrain. ORV includes, but is not limited to, a multitrack or multiwheel drive vehicle, a motorcycle or related 2-wheel, 3-wheel, or 4-wheel vehicle, an amphibious machine, a ground effect air cushion vehicle, an ATV as defined in [MCL 324.81101], or other means of transportation deriving motive po wer from a source other than muscle or wind. ORV does not include a vehic le described in this subdivision that is register ed for use upon a public highw ay and has the security described in [MCL 500.3101 or MCL 500.3103] in effect. [MCL 500.3101(2)(j).]

In this case, the evidence in the record establishes that the mud bog was never operated on a public highway. Additionally , the undisputed evidence in the record establishes that the mud bog was not designed for operation on a public highway. In Apperson v Citizens Mut Ins Co , 130 Mich App 799, 800; 344 NW2d 812 (1983), the plaintiff was injured when a wheel fell off a vehicle during a “street stock” car race and hit him. Th e issue presented in the case was whether the “street stock” vehicl e was a motor vehicle within t he meaning of the no-fault act. Id

.-3- With regard to whether the vehicle that hit the plaintiff was o perated or designed for operation upon a public highway, this Court outlined the various changes made to vehicles to convert them into “street stock” racing cars. Id . at 801. The affidavits submitted by the defendant establishe d that the “street stock” vehicles were required to have all outs ide lights and all glass except the windshield removed, were require d to be equipped with only one seat, and were required to have a full roll cage. Id . at 801-802. The cars also lacked windshield wipers, turn sig nals, outside mirrors, and exhaust pipes. Id . This Court concluded, “We believe it is entirely logical tha t a vehicle which was originally designed for use upon public highw ays can be modified to such a degree that it loses its status a s a ‘motor vehicle’ . . . .” Id . This Court held that the “street stock” car that injured the plai ntiff was not designed for use on a public highway and did not constitute a motor vehicle. Id

. Recently, in Gividen v Bristol West Ins Co , 305 Mich App 639, 644; 854 NW2d 200 (2014), this Court concluded that a modified 1976 Jeep did not constitute a motor vehicle under the no-fault act. In Gividen , the plaintiff was driving an off-road vehicle when it collide d with a modified 1976 Jeep driven by a nonparty to the lawsuit. Id . at 641. The plaintiff was not covered by a no-fault insurance policy, and the Jeep was covere d by an insurance policy purchased in Texas. Id . This Court addressed the issue whether the Jeep was a motor vehicle under the no-fault act. Id . at 642. This Court stated that the undisputed evidence in th e case established that the modificat ions made to the Jeep converted t he Jeep into an off-road vehicle. Id . at 643. This Court outlined the modifications made to the Je ep:
[The driver of the Jeep] testified that at the time of the acc ident, the headlights, taillights, turn signals, speedometer, and odometer on the Jeep were not “hooked up.” The original metal shell had been removed fro m the Jeep and replaced with a fiberglass shell and, except for the steering c olumn, ignition, and brakes, the wiring had not been reconnected. In addition, the Jeep did not have doors or a rearview mirror. Finally, the Jeep was equipped wit h a roll bar and had expensive tires that were impractical for driving on a paved ro ad because the tires would have been torn up and provided a “bumpy” ride. [ Id .]

This Court concluded that “[b]ecause this evidence established that the Jeep had been modified to the extent that it was no l onger ‘designed for operation upo n a public highway,’ the Jeep did not qualify as a ‘motor vehicle’ under the no-fault act at the time of the accident.” Id . (citations omitted). Therefore, there was no genuine issue of material fa ct with regard to whether the Jeep was a motor vehicle, and the plaintiff was not entitled to pers onal protection insurance (PIP) benefits under the no-fault act. Id . at 644.

The modifications made to the vehicle in this case were as ext ensive as the changes made to the vehicles in Apperson and Gividen . Jason and his wife, Jessica Boyd, provided deposition testimony outlining the modifications that were made to the veh icle. 2 While the mud bog still

2 Plaintiff contends that the differences in the testimony of Ja son and Jessica establish a genuine issue of material fact with reg ard to the modifications made to the mud bog. However, Jason and Jessica provided consistent testimony regarding the modificatio ns, and their testimony differed-4- had doors and windows, the vehic le lacked headlights, working t aillights, side-view mirrors, turn signals, a speedometer, an odometer, bumpers, a horn, and an ex haust system. Jason removed the original frame and replaced it with a larger frame from a f arm truck. Jason also replaced the engine and transmission. He move d the radiator, fan, and batte ry to the back of the vehicle. The wiring was removed and replaced. The mud bog lacked an alterna tor, and Jason explained that the battery could only last one hour, at most, before it would drain. A protective bar was installed over the front grille of the vehicle, and Plexiglas a nd metal bars were installed on the back of the vehicle. In additi on, Jason installed five-point r acing harnesses in t he front seats.

Jason also installed 40-inch “TSL Super Swamper Bogger” tires on the vehicle. Jason explained that the tires were not “road legal,” and added that “if you drove them on the road it would shake you out of the vehicle.” The gas tank was also rep laced with a fuel cell that required racing fuel, and Jason explained that the mud bog “onl y gets probably a mile and a half to the gallon.” Further, Jason welded the axles of the vehicle to permit both rear tires to spin at the same time. He explained that it was not safe to drive the vehicle on the road after he welded the axles together because “it could lock your gears up, your r ear end up, and the next thing you know you’re coming to a stop.” Therefore, the undisputed evide nce in the record establishes that the mud bog lacked basic safety features and that the changes m ade to the vehicle rendered it dangerous, if not impossible, to drive on a roadway. According ly, the vehicle was modified to such a degree that it was no longer designed for operation on a public highway. See MCL 500.3101(2)(h).

Instead, the modifications made to the vehicle rendered it an off-road vehicle. The parties do not dispute that the mud bog was motorized. Jason e xplained that a mud bog is “an off-road vehicle that people will go and play in the mud with, in big mud holes.” Thus, the mud bog was a motor-driven recreation vehicle designed for off-road use in a mud pit. The mud bog was also capable of cross-country travel over natural terrain. Further, the vehicle lacked registration for use upon a public highway and lacked no-fault insurance. Therefore, the mud bog fell within the definition of an off-road vehicle and was e xcluded from the definition of a motor vehicle. See MCL 500.3101(2)(h) and (j). 3 Therefore, the vehicle did not constitute a motor vehicle, and plaintiff is not entitled to PIP benefits fo r the injuries he sustained during the accident. See Gividen , 305 Mich App at 644.

only with regard to the irrelevant issues of the origin of the mud bog parts and the sale of the mud bog following the incident. The refore, plaintiff’s content ion is without merit.

3 We also reject plaintiff’s argument that Jason’s criminal conv iction for operating a motor vehicle while intoxicated causi ng serious injury, MCL 257.625(5 )(a), indicates that the mud bog constituted a motor vehicle und er the no-fault act. Jason’s cr iminal conviction under the Michigan Vehicle Code MCL 257.1 et seq ., has no bearing on the issue whether the mud bog was a motor vehicle as def ined in the no-fault act.-5- Reversed and remanded for entry of an order granting summary d isposition in favor of defendant. We do not ret ain jurisdiction.

/s/ Michael J. Talbot /s/ Kathleen Jansen /s/ Joel P. Hoekstra