Bev Smith, Inc. v. Atwell
Bev Smith, Inc. v. Atwell
Opinion of the Court
This case presents what appears to be a question of first impression, namely whether a nonresident motorcyclist who is involved in an accident with a motor vehicle in this state is entitled to personal protection insurance (PIP) benefits when the insurer of the motorcycle involved in the accident has not filed a certification under MCL 500.3163, but the motorcyclist is also covered under an automobile policy issued by a different insurer, who has filed such a certification, for an automobile not involved in the accident. We hold that under these circumstances, the motorcyclist is entitled to PIP benefits.
The facts relevant to these appeals are not in dispute. Plaintiff was injured while riding his motorcycle on M-22 near Glen Arbor, Michigan, and was involved in a collision with a motor vehicle operated by Sara Kaplan. At the time of the accident, plaintiff was a resident of the commonwealth of Kentucky. The motorcycle was registered in Kentucky and insured by defendant Pro
Plaintiff filed the instant action, seeking first-party no-fault benefits from all three insurance companies. The trial court granted State Farm’s and Progressive Northern’s motions for summary disposition. Plaintiff and Auto-Owners then filed cross-motions for summary disposition, with the trial court granting plaintiffs motion and denying Auto-Owners’ motion, ruling that Auto-Owners was obligated to pay Michigan no-fault benefits to plaintiff. Thereafter, the trial court also granted plaintiffs motion for attorney fees, interest, and costs. Auto-Owners now appeals.
We review de novo the trial court’s decision on summary disposition.
With respect to the PIP benefit claim in its first appeal, Auto-Owners’ sole argument is that plaintiff is not entitled to PIP benefits because the insurer of the motorcycle had not filed a certification in compliance with MCL 500.3163. MCL 500.3113(c) provides in relevant part as follows:
*662 A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
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(c) The person was not a resident of this state, was an occupant of a motor vehicle or motorcycle not registered in this state, and was not insured by an insurer which has filed a certification in compliance with section 3163.
Section 3163, MCL 500.3163, provides as follows:
(1) An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, is subject to the personal and property protection insurance system under this act.
(2) A nonadmitted insurer may voluntarily file the certification described in subsection (1).
(3) Except as otherwise provided in subsection (4), if a certification filed under subsection (1) or (2) applies to accidental bodily injury or property damage, the insurer and its insureds with respect to that injury or damage have the rights and immunities under this act for personal and property protection insureds, and claimants have the rights and benefits of personal and property protection insurance claimants, including the right to receive benefits from the electing insurer as if it were an insurer of personal and property protection insurance applicable to the accidental bodily injury or property damage.
(4) If an insurer of an out-of-state resident is required to provide benefits under subsections (1) to (3) to that out-of-state resident for accidental bodily injury for an accident in*663 which the out-of-state resident was not an occupant of a motor vehicle registered in this state, the insurer is only-liable for the amount of ultimate loss sustained up to $500,000.00. Benefits under this subsection are not recoverable to the extent that benefits covering the same loss are available from other sources, regardless of the nature or number of benefit sources available and regardless of the nature or form of the benefits.
It is undisputed that plaintiffs motorcycle insurer has not filed this certification, while his automobile insurer has filed a certification. The question to be resolved is whether it was necessary for the motorcycle insurer to have filed the certification in order for plaintiff to be eligible to receive PIP benefits because it was the motorcycle, and not plaintiffs automobile, that was involved in the accident. We agree with the trial court that it was not and that plaintiff is eligible to receive PIP benefits.
We turn first to the actual language of the statute. We find the terms of § 3113(c) plain and unambiguous: for plaintiff to be excluded from PIP benefits, all three conditions must be met. And the third condition has not been met. MCL 500.3113(c) precludes recovery if the out-of-state party “was not insured by an insurer which has filed a certification in compliance with section 3163.” The simple fact remains that plaintiff was insured by an insurer that had filed the required certification. Nothing in the statute requires that the insurer be the one that provided insurance for the vehicle involved in the accident. Indeed, as this Court observed in Farmers Ins Exch v Farm Bureau Gen Ins Co of Michigan,
Auto-Owners cites two cases in support of its position, neither of which is particularly helpful in resolving this question. Auto-Owners cites Gersten v Blackwell
Similarly, the other case relied on by Auto-Owners, Drake v Gordon,
But Auto-Owner’s argument contains a logical flaw: plaintiff has paid into the no-fault system through the
Furthermore, Auto Owners’ suggestion that the Legislature intended to exclude nonresident motorcyclists “from receipt of no-fault benefits where the motorcyclist has not paid a premium for no-fault PIP coverage on his motorcycle” overlooks a very basic fact: only the owner or registrant of a motor vehicle is required to have personal protection insurance and, by definition, motorcycles are not motor vehicles.
In fact, not only are motorcyclists entitled to PIP benefits despite the fact that there is no requirement that they carry insurance with PIP benefits, the motor
Moreover, it is not always the case that the insurer related to the motor vehicle involved in the accident will be the one responsible for the payment of PIP benefits. For example, in Goldstein v Progressive Cas Ins Co,
This Court addressed a similar issue in Transport Ins Co v Home Ins Co,
[o]ur reading of § 3163 according to the plain and ordinary meaning of its words does not persuade us that the motor vehicle owned, operated, maintained, or used by the nonresident must also be one that is covered under the terms of the foreign policy. In our view, the only conditions of carrier liability imposed under § 3163 are: (1) certification of the carrier in Michigan, (2) existence of an automobile liability policy between the nonresident and the certified carrier, and (3) a sufficient causal relationship between the*667 nonresident’s injuries and his or her ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. Inasmuch as the undisputed facts of this case reveal that these three conditions of liability have been met, we find no error in the trial court’s reliance on § 3163.
Auto-Owners also poses a nonsensical argument suggesting that plaintiffs interpretation of the statute would allow a nonresident to create a scheme by which the nonresident could avail himself or herself of PIP benefits. Under Auto-Owners’ scenario, a nonresident who lives near the Michigan border could insure a junker car for a minimal amount from a noncertified insurer, keep it parked at home, drive an uninsured vehicle to and from work in Michigan, and be entitled to PIP benefits. This argument fails for at least two reasons. First, while Auto-Owners is correct that it would avoid the provisions of MCL 500.3113(b),
In sum, Auto-Owners’ arguments fail to counter the clear and unambiguous language of § 3113(c). Plaintiff is a person insured by an insurer that has filed a certification under § 3163. Therefore, plaintiff is not excluded from receiving PIP benefits after being injured in a motor vehicle accident occurring in Michigan.
In its second appeal, Auto-Owners challenges the trial court’s award of attorney fees under MCL 500.3148(1), which provides as follows:
*668 An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.
This presents a mixed question of fact and law. The question of what constitutes reasonableness is one of law that we review de novo.
The purpose of the no-fault act’s attorney-fee penalty provision is to ensure prompt payment to the insured. Accordingly; an insurer’s refusal or delay places a burden on the insurer to justify its refusal or delay. The insurer can meet this burden by showing that the refusal or delay is the product of a legitimate question of statutory construction, constitutional law, or factual uncertainty. [Citations omitted.]
Auto-Owners argues that it did not unreasonably refuse to pay benefits because there was a legitimate question of statutory construction regarding the interpretation of MCL 500.3113(c). We disagree. Auto-Owners correctly states that the mere fact that it is ultimately determined that the insurer must pay benefits does not compel the conclusion that its initial decision to deny benefits was unreasonable.
For these reasons, we affirm the trial court’s determination that plaintiff was entitled to PIP benefits and that Auto-Owners was obligated to pay plaintiffs attorney fees under MCL 500.3148.
Affirmed. Plaintiff may tax costs.
Meter and DONOFRIO, JJ., concurred with SAWYER, PJ.
Borman v State Farm Fire & Cas Co, 198 Mich App 675, 678; 499 NW2d 419 (1993), aff'd 446 Mich 482 (1994).
Stand Up For Democracy v Secretary of State, 492 Mich 588, 598; 822 NW2d 159 (2012) (opinion by Mary Beth Kelly, J.)
272 Mich App 106, 109; 724 NW2d 485 (2006).
111 Mich App 418, 424; 314 NW2d 645 (1981).
848 F2d 701 (CA 6, 1988).
Id. at 707-708.
MCL 500.3101(1) and (2)(e).
MCL 500.3114(5).
MCL 500.3115.
218 Mich App 105; 553 NW2d 353 (1996).
134 Mich App 645, 651; 352 NW2d 701 (1984).
The provisions of MCL 500.3113(b) are avoided because an out-of-state vehicle is not required to carry no-fault insurance under § 3101.
Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008).
Id.
Id. at 11.
Brown v Home-Owners Ins Co, 298 Mich App 678, 691; 828 NW2d 400 (2012).
Reference
- Full Case Name
- BEV SMITH, INC v. ATWELL
- Cited By
- 13 cases
- Status
- Published