Gavril Miclea v. Cherokee Insurance Company ( 2020 )

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
GAVRIL MICLEA, FOR PUBLICATION
September 17, 2020
Plaintiff, 9:15 a.m.
and
MICHIGAN HEAD & SPINE INSTITUTE, P.C.,
Intervening Plaintiff,
v No. 344694
Wayne Circuit Court
CHEROKEE INSURANCE COMPANY, LC No. 16-011913-NF
Defendant-Appellee,
and
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant,
and
MICHIGAN ASSIGNED CLAIMS PLAN and
MICHIGAN AUTOMOBILE INSURANCE
PLACEMENT FACILITY,
Defendants.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.
RONAYNE KRAUSE, P.J.
Defendant Auto Club Insurance Association (Auto Club) appeals as of right the stipulated
judgment entered in favor of plaintiff Gavril Miclea. That stipulated judgment expressly permitted
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Auto Club to appeal the trial court’s previous order denying its motion for summary disposition
and granting summary disposition to defendant Cherokee Insurance Company (Cherokee), holding
that Auto Club was the highest-priority no-fault insurer for purposes of plaintiff’s claim for
personal protection insurance (PIP) benefits under Michigan’s no-fault act, MCL 500.3101 et seq.
On appeal, Auto Club argues that the trial court erred by concluding that it was the highest-priority
no-fault insurer rather than Cherokee pursuant to MCL 500.3114(3). We agree. We therefore
reverse the order granting summary disposition in favor of Cherokee and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff suffered injuries when he slipped and fell while trying to put antifreeze in his 2000
Volvo tractor (the truck). At the time, plaintiff was performing truck-driving services under an
independent-contractor agreement with Universal Am-Can, Ltd (Universal). Plaintiff testified that
he held legal title to the truck, and at the time of the accident, Universal was leasing the truck from
him. Plaintiff maintained personal automobile insurance through Auto Club, and Universal
maintained business automobile insurance through Cherokee. After unsuccessfully pursuing PIP
benefits from Auto Club, Cherokee, and defendant Michigan Assigned Claims Plan, plaintiff filed
this lawsuit, seeking a determination as to which insurer was highest in priority for purposes of his
claim for PIP benefits. Intervening plaintiff Michigan Head & Spine Institute, P.C., one of
plaintiff’s healthcare providers, also filed an intervening complaint to recover benefits for the
services it provided.
Cherokee moved for summary disposition under MCR 2.116(C)(10), arguing that, because
plaintiff was an independent contractor at the time he suffered his injuries, his personal automobile
insurer, Auto Club, was the highest-priority no-fault insurer pursuant to MCL 500.3114(1) and (3).
In support of this position, Cherokee relied heavily on this Court’s opinion in Adanalic v Harco
Nat Ins Co, 309 Mich. App. 173; 870 NW2d 731 (2015), identifying Adanalic as the “controlling
authority for independent contractor cases such as the case at bar.” In response, Auto Club argued
that it was entitled to summary disposition, claiming that Cherokee was the highest-priority no-
fault insurer pursuant to MCL 500.3114(3) because, regardless of whether plaintiff was an
independent contractor, plaintiff was an employee of himself and the owner of the truck. Auto
Club contended that Celina Mut Ins Co v Lake States Ins Co, 452 Mich. 84; 549 NW2d 834 (1996),
and Besic v Citizens Ins Co of the Midwest, 290 Mich. App. 19; 800 NW2d 93 (2010), rather than
Adanalic, controlled the outcome of this priority dispute.
The trial court relied on the economic reality test and determined that plaintiff was acting
as an independent contractor at the time he sustained his injuries. The trial court therefore
concluded that he was not an employee, so his personal insurer, Auto Club, was the no-fault insurer
of highest priority. As a result, the trial court granted Cherokee’s motion for summary disposition.
Ostensibly, the instant appeal focuses on whether this case is controlled by Adanalic or by Celina
and Besic. However, as will be discussed, we conclude that those three cases may be harmonized
instead of shoehorning any of them to “control” over the others.
II. STANDARD OF REVIEW
A trial court’s decision to grant or deny summary disposition is reviewed de novo. Ter
Beek v City of Wyoming, 495 Mich. 1, 8; 846 NW2d 531 (2014). Summary disposition is
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appropriate pursuant to MCR 2.116(C)(10) where there is “no genuine issue as to any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” MCR
2.116(C)(10). When reviewing a motion for summary disposition under MCR 2.116(C)(10), the
court considers the affidavits, pleadings, depositions, admissions, and other admissible
documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(4),
(G)(5); Puetz v Spectrum Health Hosps, 324 Mich. App. 51, 68; 919 NW2d 439 (2018).
Michigan’s appellate courts also review a trial court’s interpretation and application of the
no-fault act de novo. Agnone v Home-Owners Ins Co, 310 Mich. App. 522, 526; 871 NW2d 732
(2015). When interpreting and applying a statute, a court’s primary goal is to ascertain and give
effect to the Legislature’s intent. Frierson v W Am Ins Co, 261 Mich. App. 732, 734; 683 NW2d
695 (2004). In doing so, courts look first to the language of the statute itself. Id. If the statute is
clear and unambiguous, it must be enforced as written, and judicial construction is neither
necessary nor permissible. Id. However, Michigan’s appellate courts have recognized that
“[t]erms contained in the no-fault act are read in the light of its legislative history and in the context
of the no-fault act as a whole.” Id. (citations and quotations omitted). Moreover, “[g]iven the
remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the
persons who are its intended beneficiaries.” Id. (quotation omitted). “Further, courts should not
abandon common sense when construing a statute.” Id. (quotation omitted).
III. LEGAL BACKDROP
“Michigan’s no-fault act generally abolishes tort liability arising from the ownership,
maintenance, or use of a motor vehicle.” Grange Ins Co of Mich v Lawrence, 494 Mich. 475, 490;
835 NW2d 363 (2013). “Instead, insurance companies are required to provide first party insurance
benefits for accidental bodily injury arising out of the use of a motor vehicle, which are commonly
referred to as personal protection insurance (PIP) benefits.” Id. “The basic purpose of no-fault is
to ensure the compensation of persons injured in automobile accidents.” Hill v Aetna Life & Cas
Co, 79 Mich. App. 725, 728; 263 NW2d 27 (1977). Thus, in general, “PIP coverage applies to the
insured person, and not to the motor vehicle.” Amerisure Ins Co v Coleman, 274 Mich. App. 432,
438; 733 NW2d 93 (2007) (quotation omitted). It is possible for more than one insurer to be
responsible for payment of benefits to a particular individual. However, persons are generally not
entitled to a double recovery from multiple policies unless the person’s injuries exceed policy
limits. Beaver v Auto-Owners Ins Co, 93 Mich. App. 399, 401-403; 286 NW2d 884 (1979). In the
event multiple insurers might be responsible, the relative priority of those insurers is determined
by MCL 500.3114(1). Corwin v DaimlerChrysler Ins, 296 Mich. App. 242, 254-255; 819 NW2d
68 (2012). “[T]he general rule is that one looks to a person’s own insurer for no-fault benefits
unless one of the statutory exceptions, [MCL 500.3114(2), (3), and (5)], applies.” Parks v Detroit
Auto Inter-Ins Exch, 426 Mich. 191, 202-203; 393 NW2d 833 (1986).
There is no dispute that Auto Club is plaintiff’s “own insurer,” so Auto Club is by default
the insurer of first priority. There is also no dispute that Cherokee insured the motor vehicle at
issue. Consequently, only one statutory exception could potentially apply:
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
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insurance benefits to which the employee is entitled from the insurer of the
furnished vehicle. [MCL 500.3114(3).]
Pursuant to MCL 500.3101(3)(l)(i) and (iii), an “owner” of a motor vehicle can include either an
entity leasing the vehicle or an entity holding legal title to the vehicle, or both.1 Plaintiff, as the
title holder, did not lose his status as an “owner” under the no-fault act by leasing it to Universal.
See Besic, 290 Mich. App. at 21-22, 32. Consequently, both plaintiff and Universal were “owners”
of the truck at the time of the injury. The outcome of this matter turns on whether plaintiff was an
“employee” within the meaning of MCL 500.3114(3). The no-fault act does not expressly define
“employer” or “employee.”
IV. ANALYSIS
This Court has long held that the economic-reality test provides the appropriate framework
for determining whether an individual is an employee or an independent contractor under
Michigan’s no-fault act. See, e.g., Parham v Preferred Risk Mut Ins Co, 124 Mich. App. 618, 624;
335 NW2d 106 (1983). The trial court properly applied the economic reality test and determined
that at the time of the injury, “plaintiff was operating as an independent contractor and not an
employee.” Auto Club does not challenge that finding. Cherokee thus argues generally that
plaintiff simply cannot be an employee because he is an independent contractor. In contrast, Auto
Club argues that plaintiff was nevertheless an “employee” for purposes of MCL 500.3114(3)
because he was self-employed and occupying a vehicle that he owned at the time of his injuries.
We agree with Auto Club.
As an initial matter, it is clear from context that the trial court only analyzed whether
plaintiff was an independent contractor or employee of Universal. The trial court properly relied
on the economic reality test to make that finding. However, the trial court erred in concluding that
plaintiff, who was also an owner of the truck, was therefore not also an employee of himself. This
Court has already resolved that issue under similar circumstances, albeit in an unpublished opinion
signed by two members of this panel. Unpublished opinions of this Court are not binding. MCR
7.215(C)(1); MCR 7.215(J)(1). Nevertheless, unpublished opinions may be considered
persuasive, especially where the unpublished case involves similar facts or where little published
authority exists on point. See Cox v Hartman, 322 Mich. App. 292, 307-308; 911 NW2d 219
(2017). We find little published authority tending to resolve what we now believe is a troublesome
and recurring issue: a superficial conflict between two cases from this Court and one case from
our Supreme Court: Celina, Besic, and Adanalic. We have, however, harmonized those cases in a
prior unpublished opinion.
Therefore, we now expressly reaffirm and adopt our prior resolution of this issue in
Sappington v Shoemake, unpublished per curiam opinion of the Court of Appeals, issued October
30, 2018 (Docket No. 337994), as follows:
1
We recognize that the word “leasing” could, in the absence of further context, be construed as
referring either to the lessor or the lessee. When the statute is read as a whole, however, it clearly
refers to a lessee.
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Our Supreme Court has unambiguously established that a person can
simultaneously be both an employer and an employee under the no-fault act.
Celina[], 452 Mich [at] 87-90[]. In particular, someone who is self-employed is an
employee of himself. Id. This Court further explained that a person can be a self-
employed independent contractor and retain the status of both employer and
employee. Besic, 290 Mich. App. at 31-32. Both cases are holdings as a matter of
law: if a person is self-employed, that person is necessarily both employer and
employee for purposes of MCL 500.3114(3). Therefore, if [plaintiff] is an
independent contractor of [Universal], then [plaintiff] is necessarily an employee
of himself.
Cherokee correctly observes that “[a]n independent contractor is not
considered an ‘employee’ for purposes of the no-fault act.” Adanalic[], 309 Mich
App [at] 191[]. However, Adanalic clearly addressed only whether a person could
simultaneously be an employee and an independent contractor of the same entity at
the same time. Furthermore, Adanalic is consistent with Celina and Besic. In the
latter cases, the injured parties owned the vehicles in which they were injured.
Celina, 452 Mich. at 86; Besic, 290 Mich. App. at 21. In Adanalic, the injured party
owned a truck, but his injuries involved his occupancy of a semi-trailer that he did
not own. Adanalic, 309 Mich. App. at 177-178. In all three cases, the courts were
called upon to determine whether an owner of the occupied vehicle employed the
injured party. Because the injured party in Adanalic did not own the vehicle in
which he was injured, his self-employment status was irrelevant.
If [plaintiff] was an independent contractor of [Universal], Adanalic only
establishes that [plaintiff] was not an employee of [Universal]. Binding case law
rejects Cherokee’s argument that [plaintiff]’s status as an independent contractor
necessarily precludes him from being an employee of anyone. [Id., unpub at 3-4
(emphasis in original).]
As we discussed in Sappington above, all three cases operate in perfect harmony. Therefore, we
reject Cherokee’s argument that an independent contractor of one entity cannot simultaneously be
an employee of another entity, including himself.
We additionally observe that Cherokee’s argument would seemingly result in the curious
conclusion that an independent contractor is somehow unemployed; because, at least in some
contexts, being an “independent contractor” means that one is self-employed.2 Furthermore, it
appears to us that the Legislature intended, by enacting MCL 500.3114(3), to shift the burden of
providing PIP benefits to the insurers of vehicles in certain commercial contexts, probably because
those insurers will be in a better position to evaluate the risks against which they are insuring. See
Celina, 452 Mich. at 89. We may not depart from the literal language of an unambiguous statute,
2
For example, the Internal Revenue Service takes the position that being an independent contractor
means that one is self-employed. See < https://www.irs.gov/businesses/small-businesses-self-
employed/independent-contractor-defined >.
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but if any construction is necessary—such as determining the meaning of an undefined word—we
should strive “to prevent absurd results, injustice, or prejudice to the public interest.” Rafferty v
Markovitz, 461 Mich. 265, 270; 602 NW2d 367 (1999); see also Frierson, 261 Mich. App. at 734.
If the case law had left any doubt, we would therefore resolve that doubt in favor of deeming the
insurer of the commercial vehicle to have a higher priority.
V. CONCLUSION
As we concluded in Sappington, there is no need to determine which of Celina, Besic, and
Adanalic “controls” over the others, because all three cases can be harmonized. A person cannot
be an employee and independent contractor of the same entity at the same time. However, being
an independent contractor of one entity does not preclude a person from simultaneously being an
employee of another entity, which can include one’s self.3 On these facts, plaintiff was not an
employee of Universal, but he was an employee of himself. Because plaintiff also “owned” the
vehicle, MCL 500.3114(3) applies. Because Cherokee insured the vehicle, it is the insurer of
highest priority. The trial court’s order denying summary disposition to Auto Club and granting
summary disposition in favor of Cherokee is reversed, and the matter is remanded for any further
proceedings the trial court deems necessary or proper. We do not retain jurisdiction. Auto Club,
being the prevailing party, may tax costs. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Jonathan Tukel
3
See footnote 2.
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