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Court grafts new obstacle on injured person's recovery: consent and legal operation

Rae Plumb went to the bar and got drunk, before leaving with some men she didn't know.  When one of them threw her the keys and asked her to drive, she apparently acquiesced.  Ultimately, she was found badly burned and with a head injury, near the scene of a single-vehicle collision.  It turned out that the man who gave her the keys was not the owner of the car, and the owner--who hadn't yet acquired the title from the seller---claimed he didn't give the keys to anyone....he claimed he left them in the car.

When Plumb attempted to secure Personal Injury Protection benefits (medical and three years' wages, essentially) from the insurer of the vehicle under the no fault law, she was denied.  The insurer and ultimately two judges of the Court of Appeals concluded that she could not collect no fault benefits because she "unlawfully took and used" the vehicle involved.  While the judges acknowledged that she may have "reasonably believed" that the stranger who gave her the keys was entitled to allow her to drive it, she could not have reasonably believed that she was entitled to "use" the vehicle, given her own inebriation and suspended driver's license. 

The dissenting judge, a judge known as a moderate conservative, disagreed with the distinction the other judges drew between this case and existing case law, which had not previously conditioned the payment of PIP benefits on a driver proving that he or she was "legally operating the vehicle".  He pointed out that the statute, intended to disqualify injury victims who had unlawfully taken a car, was never intended to require proof that it was being operated "legally"; such an additional, new requirement opens a veritable trove of potential defenses and excuses for insurers to avoid paying "no fault" benefits that is completely contrary to the no fault statutory scheme.  The next driver denied benefits will be denied because his license had expired the week before, or because he is driving "after hours" [if a young person] or without his corrective lenses.  The Court will be faced with all manner of defenses to justify the failure to pay what were intended to be automatic, no fault, medical and wage losses.

As the dissenting judge recognized, this statute was intended to disqualify thieves and joyriders from receiving no fault benefits---it was not intended to disqualify every driver who could be accused of some form of illegality.  Rae Plumb may have abhorrent judgment and may be found by the jury to have been lying about how she got the car keys; under the statute as written and intended, however, she isn't legally disqualified from benefits if she really had permission to drive.  The majority is on thin ice in accepting the "owner's" claims and not hers, in negating the common sense presumption that she received the keys from someone, and in grafting a new "legal operation" requirement on the consent statute.

Thompson O’Neil, P.C.
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