Donald R Ellis v. Anesti Bello ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DONALD R. ELLIS, UNPUBLISHED
June 11, 2019
Plaintiff-Appellant,
v No. 342770
Wayne Circuit Court
ANESTI BELLO and USAA GENERAL LC No. 17-004396-NI
INDEMNITY COMPANY,
Defendants-Appellees.
Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.
PER CURIAM.
In this action for personal protection insurance benefits (PIP benefits) under the no-fault
act, MCL 500.3101 et seq., plaintiff appeals as of right from an order granting summary
disposition in favor of defendant Anesti Bello. On appeal, plaintiff primarily challenges an
earlier order granting summary disposition in favor of defendant USAA General Indemnity
Company (USAA). We affirm.
Plaintiff was in the United States Army from 2010 through 2014, and was stationed at
Fort Drum, New York. While stationed at Fort Drum, plaintiff bought a Dodge Charger,
registered the vehicle in New York, and obtained a New York automobile insurance policy
through USAA. In July 2014, plaintiff was honorably discharged from the United States Army,
joined the National Guard, and moved to Michigan. Plaintiff brought his vehicle to Michigan,
although the vehicle continued to be registered in New York and remained insured under the
New York policy. At some point, plaintiff changed his mailing address with USAA. USAA sent
a letter confirming the change in mailing addresses to plaintiff, and requested that he change his
identified vehicle location, which plaintiff did not do. USAA continued to send renewal
documents for plaintiff’s New York insurance policy to his Michigan address. In March 2016,
plaintiff was involved in a car accident with Bello.
Plaintiff filed a complaint asserting a claim for PIP benefits against USAA and a third-
party automobile negligence claim against Bello. The trial court granted summary disposition in
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favor of USAA because plaintiff failed to obtain a Michigan no-fault insurance policy. The trial
court then granted summary disposition in favor of Bello, in reliance on its earlier ruling.
Plaintiff argues that the trial court erred when it determined that plaintiff did not have a
valid no-fault insurance policy because USAA was obligated to provide an insurance policy that
complied with the no-fault act. We disagree.
This Court reviews a trial court’s decision to grant or deny summary disposition de novo.
Rory v Continental Ins Co, 473 Mich. 457, 464; 703 NW2d 23 (2005). The trial court granted
summary disposition pursuant to MCR 2.116(C)(10). “A motion under MCR 2.116(C)(10) tests
the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d
817 (1999). “[T]he circuit court must consider the affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the
party opposing the motion.” Joseph v Auto Club Ins Ass’n, 491 Mich. 200, 206; 815 NW2d 412
(2012). “A motion for summary disposition under MCR 2.116(C)(10) shall be granted if there is
no genuine issue regarding any material fact and the movant is entitled to judgment as a matter
of law.” Bazzi v Sentinel Ins Co, 502 Mich. 390, 398; 919 NW2d 20 (2018). “There is a genuine
issue of material fact when reasonable minds could differ on an issue after viewing the record in
the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich.
419, 425; 751 NW2d 8 (2008). “Additionally, [i]ssues of statutory construction are questions of
law, which [this Court] review[s] de novo. Likewise, this Court reviews de novo, as a question
of law, the construction and interpretation of an insurance contract[.]” Lewis v Farmers Ins
Exch, 315 Mich. App. 202, 209; 888 NW2d 916 (2016) (quotation marks and citations omitted;
alterations in original).
Under the no-fault act, “[t]he owner or registrant of a motor vehicle required to be
registered in this state shall maintain security for payment of benefits under personal protection
insurance, property protection insurance, and residual liability insurance.” MCL 500.3101(1).
However, “[a] person is not entitled to be paid personal protection insurance benefits for
accidental bodily injury if at the time of the accident . . . [t]he person was the owner or registrant
of a motor vehicle or motorcycle involved in the accident with respect to which the security
required by section 3101 or 3103 was not in effect.” MCL 500.3113(b). Although plaintiff
argues that his USAA policy should be treated as a no-fault insurance policy satisfying the
requirements of MCL 500.3101, it is undisputed that plaintiff had a New York insurance policy,
not a Michigan no-fault insurance policy, at the time of the accident. It is also undisputed that
plaintiff was a Michigan resident and that his vehicle was registered in New York. Because
plaintiff was a Michigan resident at the time of the accident, he was required to maintain no-fault
insurance and register his vehicle in Michigan. Witt v American Family Mut Ins Co, 219 Mich
App 602, 607; 557 NW2d 163 (1996), citing MCL 500.3101(1), and MCL 257.216. Having
failed to do so, plaintiff was not entitled to no-fault benefits. MCL 500.3113(b); Witt, 219 Mich
App at 607.
Plaintiff argues that USAA may nonetheless be required to pay no-fault benefits because
USAA knew that plaintiff was a Michigan resident and still issued plaintiff a New York
insurance policy. In Farm Bureau Ins Co v Allstate Ins Co, 233 Mich. App. 38, 43-44; 592 NW2d
395 (1998), Allstate issued an Indiana insurance policy to its insured, based on the insured’s use
of an Indiana address, although the insured was a Michigan resident. This Court determined that
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Allstate did not violate MCL 500.30121 by issuing an Indiana insurance policy because there was
no evidence that Allstate “should have known that [the insured] was a Michigan resident.” Id. at
41. Accordingly, Allstate had no obligation to provide an insurance policy that complied with
the Michigan no-fault act. Id. at 43.
Like the dissent in Farm Bureau, id. at 49 (GRIFFIN, J., dissenting), plaintiff cites
Blakeslee v Farm Bureau Mut Ins Co of Mich, 388 Mich. 464, 474; 201 NW2d 786 (1972), for
the proposition that insurance policies that are at odds with the no-fault act must be reformed to
comply with the no-fault act. In Blakeslee, 388 Mich. at 469-474, the Supreme Court considered
whether an insurer could enforce a contract provision that limited recovery of uninsured motorist
benefits when another insurance policy was applicable to the same loss and the provision worked
to reduce the insurer’s liability below the then statutorily required uninsured motorist threshold.
The Court concluded that the limiting provision was unenforceable in light of the clear purpose
and mandatory language of the statute requiring minimum uninsured motorist insurance
protection. Id. at 474. Thus, where a no-fault insurance contract attempted to reduce the
coverage required by statute, the required coverage would be read into the policy. Id. The Farm
Bureau majority distinguished Blakeslee on the basis that the Blakeslee insurer was purporting to
provide a Michigan no-fault policy, while Allstate’s insured had clearly procured an Indiana
automobile insurance policy. Farm Bureau, 233 Mich. App. at 42-43 (opinion of the Court).
Therefore, it refused to construe Blakeslee “as requiring an insurance policy issued in good faith
by an insurer outside this state to a person who provides no indication to the insurer of being a
Michigan resident as if it were a Michigan no-fault insurance policy.” Id.
In this case, USAA provided plaintiff with a New York insurance policy, covering a New
York registered vehicle, while plaintiff was a New York resident. An insurance provider violates
MCL 500.3012 when the insurance provider knew or should have known that an insured was a
Michigan resident or when the insurance policy purports to comply with the Michigan no-fault-
act, yet issues a policy failing to satisfy the minimum requirements of the no-fault act. Id. at 42
(“Simply put, the Indiana insurance policy issued by Allstate in this case was not issued ‘in
violation of’ the no-fault act because Allstate neither purported to issue a policy that complied
with Michigan’s no-fault act nor knew that it was dealing with a Michigan resident.”). USAA
1
MCL 500.3012 states:
Such a liability insurance policy issued in violation of sections 3004
through 3012 shall, nevertheless, be held valid but be deemed to include the
provisions required by such sections, and when any provision in such policy or
rider is in conflict with the provisions required to be contained by such sections,
the rights, duties and obligations of the insured, the policyholder and the injured
person shall be governed by the provisions of such sections: Provided, however,
That the insurer shall have all the defenses in any action brought under the
provisions of such sections that it originally had against its insured under the
terms of the policy providing the policy is not in conflict with the provisions of
such sections.
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did not violate MCL 500.3012 because USAA provided a New York insurance policy while
plaintiff resided in New York and sought insurance required by the laws of that state.
Plaintiff argues that USAA knew he was a Michigan resident at the time of the accident
because he previously changed his mailing address for the insurance policy to a Michigan
address. An insured has an obligation to read his or her insurance policy and to raise any
questions within a reasonable time after the policy is issued. Casey v Auto Owners Ins Co, 273
Mich. App. 388, 394-395; 729 NW2d 277 (2006). “Consistent with this obligation, if the insured
has not read the policy, he or she is nevertheless charged with knowledge of the terms and
conditions of the insurance policy.” Id. at 395. Plaintiff argues that his vehicle was principally
garaged in Michigan, and under MCL 500.3009(1)2, USAA was required to provide a no-fault
insurance policy. However, the renewal declaration page of plaintiff’s insurance policy states:
“The Vehicle(s) described herein is principally garaged at the above address unless otherwise
stated.” Underneath this statement, the declarations page says, “VEH 01 FORT DRUM NY
13602-0000.”3 Accordingly, plaintiff is charged with knowing that despite his Michigan mailing
address, USAA identified plaintiff’s vehicle as principally garaged in New York. Because MCL
500.3009(1), by its plain language, only governs policies concerning “any motor vehicle
registered or principally garaged in this state,” it does not apply.
Plaintiff’s New York insurance policy also stated that “[p]olicyholders moving from
NYS [New York State] must coordinate the surrender of NYS license plates and cancellation of
a NYS insurance policy with obtaining a new registration and insurance policy in another state.”
Plaintiff failed to comply with this provision by moving to Michigan in 2014 without ever
changing his vehicle registration or insurance policy before the subject motor vehicle accident
occurred in 2016.
2
MCL 500.3009(1) states:
An automobile liability or motor vehicle liability policy insuring against
loss resulting from liability imposed by law for property damage, bodily injury, or
death suffered by any person arising out of the ownership, maintenance, or use of
a motor vehicle shall not be delivered or issued for delivery in this state with
respect to any motor vehicle registered or principally garaged in this state unless
the liability coverage is subject to all of the following limits:
(a) A limit, exclusive of interest and costs, of not less than $20,000.00
because of bodily injury to or death of 1 person in any 1 accident.
(b) Subject to the limit for 1 person in subdivision (a), a limit of not less
than $40,000.00 because of bodily injury to or death of 2 or more persons in any 1
accident.
(c) A limit of not less than $10,000.00 because of injury to or destruction
of property of others in any accident.
3
Above the statement, “VEH 01” is identified as the Dodge Charger involved in plaintiff’s
motor vehicle accident.
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The trial court properly granted USAA’s and Bello’s motions for summary disposition
because plaintiff was a Michigan resident, did not register his vehicle in Michigan, and did not
obtain Michigan no-fault insurance. USAA did not violate MCL 500.3012 because it issued a
New York insurance policy to plaintiff while he was a New York resident. Moreover, plaintiff’s
insurance policy required him to cancel his New York insurance policy and vehicle registration
when he moved outside of New York and obtain a new insurance policy in Michigan, which
plaintiff failed to do.
Plaintiff argues that the New York insurance policy should be reformed into a Michigan
no-fault insurance policy on the basis of mutual mistake. “Michigan courts sitting in equity have
long had the power to reform an instrument that does not express the true intent of the parties as
a result of fraud, mistake, accident, or surprise.” Johnson Family Ltd Partnership v White Pine
Wireless, LLC, 281 Mich. App. 364, 371-372; 761 NW2d 353 (2008). “To obtain reformation, a
plaintiff must prove a mutual mistake of fact, or mistake on one side and fraud on the other, by
clear and convincing evidence.” Casey, 273 Mich. App. at 398. “A unilateral mistake is not
sufficient to warrant reformation.” Id. Plaintiff fails to demonstrate a material question of fact
as to whether a mutual mistake was made. Although plaintiff informed USAA of his new
mailing address in Michigan, plaintiff failed to take any additional steps to change the location of
his vehicle with USAA, or to register his vehicle in Michigan. USAA believed that plaintiff’s
vehicle was located in New York because plaintiff did not seek to alter or transfer his New York
insurance policy and the vehicle remained registered in New York. Any alleged mistake was
solely plaintiff’s mistake, and therefore, there is no basis to reform the insurance policy.
Plaintiff also argues that the trial court erred when it refused to consider his supplemental
response to USAA’s motion for summary disposition. The trial court did not accept the
supplemental brief because it was untimely filed and submitted contrary to the court rules. “This
Court reviews for an abuse of discretion a trial court’s decision to decline to entertain motions
filed after the deadline set forth in its scheduling order.” Kemerko Clawson, LLC v RXIV Inc,
269 Mich. App. 347, 349; 711 NW2d 801 (2005). The trial court abuses its discretion when it
reaches a decision falling outside the range of reasonable and principled outcomes. Nahshal v
Fremont Ins Co, 324 Mich. App. 696, 710; 922 NW2d 662 (2018).
The trial court entered a scheduling order that required plaintiff to file a response to
USAA’s motion for summary disposition by November 8, 2017. Plaintiff filed his supplemental
response on November 14, 2017. Under MCR 2.119(A)(2)(b), “[e]xcept as permitted by the
court or as otherwise provided in these rules, no reply briefs, additional briefs, or supplemental
briefs may be filed.” Plaintiff argues that the trial court abused its discretion when it declined to
consider the supplemental response because the transcript from the deposition of USAA’s
underwriter was not available until the day after plaintiff filed his response to USAA’s motion
for summary disposition. However, plaintiff cited to the underwriter’s deposition testimony in
the initial response and stated that the deposition would be filed when it was transcribed.
Moreover, USAA attached the deposition transcript to its summary disposition reply brief so the
trial court had it before denying plaintiff’s dispositive motion. Because plaintiff filed the
supplemental response without leave from the court and, in any event, the trial court had the full
deposition transcript, the trial court’s decision to reject plaintiff’s supplemental response was not
outside the range of principled outcomes.
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Although plaintiff primarily argues on appeal that the trial court erred when it granted
USAA’s motion for summary disposition, we note that the trial court properly granted Bello’s
motion for summary disposition as well. 4 MCL 500.3135(2)(c) provides that “[d]amages shall
not be assessed in favor of a party who was operating his or her own vehicle at the time the
injury occurred and did not have in effect for that motor vehicle the security required by section
3101 at the time the injury occurred.” Again, plaintiff did not have a Michigan no-fault
insurance policy as required by MCL 500.3101, and plaintiff is not entitled to reform his New
York insurance policy into a Michigan no-fault insurance policy because there was no mutual
mistake. Accordingly, plaintiff was not entitled to recover noneconomic losses arising from
Bello’s alleged negligence, and summary disposition in favor of Bello was proper.
Affirmed.
/s/ David H. Sawyer
/s/ Colleen A. O’Brien
/s/ Anica Letica
4
Bello argues that the law of the case required the trial court to grant his motion for summary
disposition because the trial court had previously determined that plaintiff did not have a valid
no-fault insurance policy. Bello’s argument is mistaken to the extent that the law-of-the-case
doctrine only applies to prior appellate court decisions, not prior trial court decisions. See
Grievance Administrator v Lopatin, 462 Mich. 235, 260; 612 NW2d 120 (2000) (stating that,
under the law-of-the-case doctrine, “an appellate court’s determination of an issue in a case binds
lower tribunals on remand and the appellate court in subsequent appeals.”).
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