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 While it relates to a narrow factual scenario, the change from an unpublished case to one set for publication means that trial courts cannot choose to ignore the holding of it.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Unpublished Appellate Case Expands Definition of ‘Unlawful’ Under Michigan PIP Law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).