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A month after issuing its opinion in Swoope as one that was
not marked for publication, the Michigan Court of Appeals recently
gave notice that it will now be a published, binding opinion. While
it relates to a narrow factual scenario, the change from an
unpublished case to one set for publication means that trial courts
cannot choose to ignore the holding of it.
Below is the original post from Jan. 25, which will provide
you with details about this now published decision.
Unpublished Appellate Case Expands Definition of
‘Unlawful’ Under Michigan PIP Law
In Swoope v Citizens Ins Co, the plaintiff filed a
claim for Personal Injury Protection (PIP) benefits against
Citizens Insurance Company of the Midwest (Citizens) after a motor
vehicle accident. During discovery, plaintiff admitted that she did
not have a driver’s license when she took the vehicle. The
vehicle was owned by a friend, but neither the plaintiff nor the
owner had an automobile insurance policy. As a result, the Michigan
Assigned Claims Plan assigned the plaintiff’s claim to
Citizens.
Citizens filed a dispositive motion arguing that, because the
plaintiff knew she did not have a valid driver’s license when
she took the vehicle, it was an “unlawful taking” under
MCL 500.3113(a). The trial court denied the
motion, but the Michigan Court of Appeals granted leave for an
interlocutory appeal.
In rendering its decision, the appellate court relied on
Ahmed v Tokio Marine America In Co (337 Mich App 1
(2021)). Ahmed held that any violation of criminal law
leading to the taking of a motor vehicle will constitute an
unlawful taking. With that in mind, the Michigan Vehicle Code
explicitly states someone without a valid operator’s license
cannot lawfully operate a motor vehicle on the highway.
The appellate court reasoned that the Legislature set criminal
penalties for driving without a license, then necessarily it would
be deemed unlawful under section 3113. The appellate court granted
the defendant’s motion, and it reversed and remanded the case
back to the trial court to enter an order of dismissal.
This case seems to provide a solid defense to insurers where the
claimant does not have a driver’s license. But it is important
to note that the appellate court also relied on the fact that the
plaintiff did not have the owner’s permission to drive the car.
Had the plaintiff received the owner’s permission, it is a
stronger possibility that the plaintiff could have survived the
motion. If the owner authorized the taking or the plaintiff had
taken any steps to determine if she was authorized to use the
vehicle, the issue would have to go to a jury to determine if
plaintiff “should have known” she could not operate the
vehicle.
As an unpublished case, Swoope is not binding precedent
on the trial courts, but the Ahmed case upon which it
relies heavily is both published and binding. Together, these cases
form a strong basis for carriers to argue that unlicensed claimants
who take vehicles without the owners’ permission are not
entitled to PIP benefits pursuant to MCL 500.3113(a).
Originally published 25 January 2024
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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