STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS DZEMAL DULIC, Plaintiff-Appellee, UNPUBLISHED February 15, 2007 v No Macomb Circuit Court PROGRESSIVE MICHIGAN INSURANCE LC No NF COMPANY and CLARENDON NATIONAL INSURANCE, and Defendants-Appellees, AMERISURE INSURANCE COMPANY, Defendant-Appellant. Before: Murphy, P.J., and Smolenski and Kelly, JJ. PER CURIAM. Defendant Amerisure Insurance Company appeals as of right from the trial court s grant of summary disposition under MCR 2.116(C)(10) in favor of defendant Progressive Michigan Insurance Company. We affirm. This case is being decided without oral argument under MCR 7.214(E). This case arises from a motor vehicle accident that occurred while plaintiff was occupying a semi-tractor insured under a policy issued by Amerisure to Sweet Express, a trucking company that contracted with plaintiff to haul loads. The trial court held that Amerisure was liable for payment of personal protection insurance (PIP) benefits to plaintiff under MCL (3) and Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84; 549 NW2d 834 (1996). Amerisure, while acknowledging that plaintiff is entitled to PIP benefits, argues that it is not obligated to pay those benefits under MCL (3) because plaintiff was an independent contractor, not an employee of Sweet Express, at the time of the accident. We disagree. We review a grant of summary disposition de novo. Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 713; 706 NW2d 426 (2005). -1-

2 MCL (3) provides: An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle. Celina involved the issue of whether MCL (3) applies when an injured person is operating an insured vehicle in the course of self-employment. Celina, supra at 85. In Celina, Robert Rood, the self-employed owner of a sole proprietorship, was injured in a motor vehicle accident in which he was operating a wrecker truck he owned in the course of his work as a sole proprietor. Id. at The wrecker truck was insured under a policy issued by Celina Mutual Insurance Company. Id. Celina contended that Lake States Insurance Company, the insurer of three personal vehicles owned by Rood, was obligated to pay a portion of no-fault PIP benefits to Rood. Id. The trial court held that Celina was solely responsible for the payment of no-fault benefits in that case under MCL (3). Id. at 85, 87. This Court reversed the trial court s holding, concluding that MCL (3) was inapplicable because Rood was not an employee at the time of the accident. Celina, supra at Our Supreme Court reversed this Court and reinstated the judgment of the trial court. Id. at 91. The Celina Court opined that it is most consistent with the purposes of the no-fault statute to apply [MCL (3)] in the case of injuries to a self-employed person. Id. at 89. By its plain language, except for the spouse and relative circumstances, which are inapplicable here, MCL (3) only applies where an employee is injured while occupying a motor vehicle owned or registered by an employer. Thus, pursuant to Celina, MCL (3) applies in a self-employment situation because the self-employed person is considered both an employee and his own employer. Accordingly, it is inherent in the result and analysis of Celina, that a self-employed person operating a motor vehicle owned by that self-employed person in the course of his or her self-employment is both an employee and employer for purposes of MCL (3). Accepting for purposes of discussion Amerisure s position that plaintiff was an independent contractor and thus self-employed at the time of the motor vehicle accident underlying the present case, we nevertheless conclude that MCL (3) applies to impose responsibility on Amerisure to provide no-fault PIP benefits to plaintiff. First, under the rationale of Celina, plaintiff as a self-employed person who was occupying the semi-tractor in the course of his self-employment was acting as both an employee and his own employer at the time of the accident. Plaintiff owned the relevant motor vehicle, i.e., the semi-tractor, at the time of the accident as required for MCL (3) to apply under the applicable definition of owner in the no-fault act. Specifically, under MCL (2)(g)(i), plaintiff was an owner of the semi-tractor based on his having the use thereof, under a lease or otherwise, for a period that is greater than 30 days. The lease agreement between plaintiff and Sweet Express, which went into force more than 30 days before the accident, plainly contemplated that plaintiff would have use of the motor vehicle in hauling cargo. We believe that this alone is sufficient to constitute plaintiff having the use of the motor vehicle for over 30 days. Further, the lease agreement provided that Sweet Express did not have exclusive use of the semi-tractor, which must mean that plaintiff was free to generally make use of it for other purposes. Thus, plaintiff -2-

3 owned the relevant motor vehicle for purposes of the no-fault act. 1 Under the plain language of MCL (3), where, as in this case, an employee is entitled to PIP benefits based on injury suffered while occupying a motor vehicle owned by the employer, the employee is to receive those PIP benefits from the insurer of the furnished vehicle. Therefore, because Amerisure was the insurer of the furnished vehicle in this case, i.e., the semi-tractor, it is obligated to pay PIP benefits to plaintiff. It is true, as noted by Amerisure, that the insurance policy on the semi-tractor in this case was issued to Sweet Express while the insurance policy on the wrecker truck involved in the accident in Celina, supra, was issued to the self-insured person. But this factual distinction is simply immaterial to application of the relevant holding in Celina and the plain language of MCL (3). The critical point from Celina as concerns the present case is that a selfemployed person occupying a motor vehicle owned by the self-employed person in the course of his or her self-employment is considered to be both an employee and an employer, so that MCL (3) applies if the self-employed person is injured in a motor vehicle accident in that circumstance. When MCL (3) is triggered, it expressly provides that the insurer of the furnished vehicle is liable to provide PIP benefits. Thus, contrary to the apparent implication of Amerisure s position, if MCL (3) applies, it does not automatically impose liability on an insurer of the self-employed employer because, as illustrated by the facts of this case, it is possible for the self-employed person and the person or entity obtaining insurance coverage on the relevant motor vehicle to be different parties. Accordingly, Amerisure is responsible for the payment of PIP benefits to plaintiff, notwithstanding the fact that Sweet Express, and not plaintiff, obtained the no-fault automobile policy for the semi-tractor. 2 1 It might seem more straightforward for us to simply state that plaintiff owned the semi-tractor because he held legal title to it. But while the definition of owner in the no-fault act includes a provision generally defining a person who holds legal title to a vehicle as an owner, that provision excludes a person engaged in the business of leasing motor vehicles who is the lessor of a motor vehicle pursuant to a lease providing for the use of the motor vehicle by the lessee for a period that is greater than 30 days. MCL (2)(g)(ii). Thus, it may be arguable that plaintiff was not an owner of the semi-tractor solely based on being its titleholder in light of his lease of the semi-tractor to Sweet Express, but we need not resolve that point. 2 We respectfully disagree with the dissenting opinion. The crux of the dissent is that, in determining whether plaintiff was an employee for purposes of MCL (3), it is necessary to examine the relationship between plaintiff and Sweet Express and apply the economic realities test. However, MCL (3) does not indicate that the employee cannot also be the employer, nor that the employer must be a person or entity separate from the employee. There is simply no need to examine the relationship between plaintiff and Sweet Express because the identification of an employee and employer (plaintiff) under the statutory provision is already established and thus the insurer of the vehicle is responsible for paying benefits. The dissenting opinion is contrary to the basic premise of Celina, which is that a self-employed person can be considered both an employee and an employer under the statute. With respect to the dissent s reference to legislative intent, the words contained in a statute provide us with the most reliable evidence of the Legislature's intent. Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004). If the wording or language of a statute is unambiguous, the Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. Id. A necessary corollary of these principles is that a court may read nothing into an -3-

4 In light of the above analysis, it is unnecessary to reach Progressive s additional arguments challenging Amerisure s standing to seek to impose liability on Progressive and contending that Sweet Express should be considered to have been plaintiff s employer for purposes of this case. Affirmed. /s/ William B. Murphy /s/ Michael R. Smolenski unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). Here, the dissent is reading definitional and limiting language into the statute that does not exist, and this is not permissible. -4-

5 STATE OF MICHIGAN COURT OF APPEALS DZEMAL DULIC, Plaintiff-Appellee, UNPUBLISHED February 15, 2007 v No Macomb Circuit Court PROGRESSIVE MICHIGAN INSURANCE LC No NF COMPANY and CLARENDON NATIONAL INSURANCE, and Defendants-Appellees, AMERISURE INSURANCE COMPANY, Defendant-Appellant. Before: Murphy, P.J., and Smolenski and Kelly, JJ. Kelly, J. (dissenting). I respectfully dissent. I would conclude that the trial court erred in not applying the economic realities test to determine whether defendant Amerisure Insurance Company is liable for payment of personal protection insurance (PIP) benefits to plaintiff under MCL (3). I would reverse and remand for further proceedings. It is undisputed that, at the time of the accident, plaintiff was under dispatch and hauling freight for Sweet Express, a motor carrier for hire. The tractor-trailer involved in the accident was titled in plaintiff s name. However, it was subject to a contractor-operator agreement between plaintiff and Sweet Express whereby plaintiff s tractor-trailer was leased to Sweet Express for the hauling of commodities made available to plaintiff by Sweet Express. Pursuant to this agreement, plaintiff agreed to operate the tractor-trailer when he would transport commodities on behalf of Sweet Express. The agreement further provided that plaintiff and Sweet Express deem it essential to their respective interests to establish and maintain and [sic] Independent Contractor relationship in the execution and performance of this agreement. Amerisure Insurance Company issued Sweet Express a no-fault policy that included plaintiff s tractor-trailer. -1-

6 Generally, a person who sustains an accidental bodily injury in an automobile accident must first look to no-fault insurance policies in his household for no-fault benefits. Michigan Mut Ins v Farm Bureau, 183 Mich App 626, 630; 455 NW2d 352 (1990). No-fault policies in the household are first in order of priority of responsibility for no-fault benefits, regardless of whether the injured person was, or was not, an occupant of a motor vehicle at the time of the accident. Id. However, an exception, pursuant to MCL (1) may apply, which could shift primary liability. MCL (3) provides: An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle. Clearly, as a part of the policy issued to Sweet Express, defendant agreed to provide, among others, no-fault benefits if any of Sweet Express employees, their spouses, or relatives of either domiciled in the same household should be injured while occupying a corporate vehicle. The question presented in this appeal is whether MCL requires a corporate insurer to extend coverage under the circumstances presented in this case. The terms employee and employer are not defined for purposes of MCL (3). This Court has applied the economic realities test in determining whether an employment relationship exists for purposes of applying MCL (3). The factors to be considered in applying the economic realities test include: (1) control of the worker s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer s business toward the achievement of a common goal. Parham v Preferred Risk Mutual Ins Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished. Id. at The trial court should have applied these factors to the facts of this case to determine liability. In contrast to the trial court and majority opinions, I do not find that Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84; 549 NW2d 834 (1996) applies to this case. In Celina, Robert Rood was the sole proprietor of an unincorporated business called Rood's Wrecker & Mobile Home Service. Rood was driving a wrecker truck owned by Rood's Wrecker & Mobile Home Service while towing another wrecker owned by that entity. Celina Mutual Insurance Company had issued the policy to Rood's Wrecker & Mobile Home Service while another insurer insured three of Rood's personal vehicles. Our Supreme Court determined that Rood, as a sole proprietor, was an employee for the purposes of MCL (3). Thus, because Rood was an employee of the employer covered by Celina s policy, Celina was responsible for payment of Rood s PIP benefits. In this case, the facts are markedly different. Plaintiff does not appear to be an employee of Sweet Express. Rather, the record demonstrates that he was a self-employed trucker who, carrying on an independent business, contracts to do work without being subject to the right of -2-

7 control by the employer as to the method of work but only as to the result to be accomplished. Parham, supra at In the course of his self-employment, plaintiff contracted with Sweet Express to haul commodities. As noted, although the tractor-trailer was titled in plaintiff s name, it had been leased to Sweet Express. For purposes of MCL (3), it is the relationship between Sweet Express and plaintiff that must be examined. To conclude otherwise would, in essence, rewrite the policy between defendant and Sweet Express to potentially cover non-employees. This was not a risk assumed by defendant nor did the Legislature, in providing limited coverage for corporate vehicles under MCL (3), intend such a result. Accordingly, I would reverse and remand for further proceedings. /s/ Kirsten Frank Kelly -3-