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Boyfriend with access to uninsured vehicle is not an "owner" disqualified from no fault benefits

Willie Auxier was driving his girlfriend's van to return some movies when he was struck from behind and injured.  The girlfriend was involved in a dispute with her insurer at the time, so the van was ultimately deemed uninsured.  Nationwide, the insurer of Auxier's car, denied his right to receive no fault benefits, claiming that he was an "owner" of the van.  Under Michigan's tort "reform" amendments, the operator/owner of an uninsured motor vehicle is denied most of his no fault rights, even if he is injured in a collision where he is without fault.

Nationwide had sent an adjuster to take a statement from Auxier before Auxier spoke to an attorney.  The adjuster recorded a statement in which Auxier admitted that he had use of the vehicle "any time that I want" and drove it perhaps once a week over the past year.  On this basis, Nationwide deemed Auxier an "owner" under the pertinent statute, even though the car was titled in the girlfriend's name, only, and Auxier had insured his own vehicle.

Auxier retained counsel and filed a claim against Nationwide.  In the litigation, the facts were fleshed-out more completely, and it developed that while Auxier did not have a set of keys to the van, he had more-or-less standing permission to take the spare keys from the kitchen if he needed to drive it.  The parties testified that this would usually occur if Auxier needed to run a family errand and his car was low on gas or broken down.  He would usually put gas in the van if he used it and had recruited a friend to change the brake pads on it.  His girlfriend confirmed that she had denied him the use of the van on several occasions when she needed it.

The Court concluded that the trial court was correct in its holding that under these circumstances, Auxier was not a statutory "owner" of the vehicle under MCL 500.3101.  He did not have a 30-day lease, was not an installment purchaser, and did not hold the legal title, therefore he could only be an "owner" under the statute unless he "had the use of it" for more than 30 days.  The Court concluded that under existing Michigan law, to be an owner under the latter phrase, Auxier had to enjoy "proprietary or possessory" usage, rather than "incidental usage with the permission of another".

Under the facts as fully developed, it was clear that Auxier's use of the van was entirely dependent upon the goodwill of his girlfriend and therefor "permissive" rather than "possessory and exclusive".  The court found it particularly important that he owned and insured his own vehicle, rendering his use of the insured vehicle more or less "incidental".  On this basis, he could not be considered a statutory "owner" of the van.

Auxier's claim for attorney fees was denied, however, as the incomplete factual statement obtained by the insurer before he consulted an attorney provided a "reasonable" basis for Nationwide to contest his "ownership".

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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