Action for personal protection insurance (PIP) benefits; Eligibility; MCL 500.3113(b); MCL 500.3173; Whether plaintiff was a constructive “owner” of the uninsured vehicle involved in the accident; MCL 500.3101(3)(l)(i); “Having the use”; Ardt v Titan Ins Co; Twichel v MIC Gen Ins Corp; Kessel v Rahn; Detroit Med Ctr v Titan Ins Co; Chop v Zielinski; Michigan Assigned Claims Plan (MACP); Michigan Automobile Insurance Placement Facility (MAIPF)

Concluding there was a fact question as to whether plaintiff was a constructive owner of the uninsured vehicle involved in the accident giving rise to his claim for PIP benefits, the court reversed in part the grant of summary disposition to defendants-MACP and MAIPF. But it affirmed summary disposition for MACP based on case law holding that it lacks the capacity to be sued. Defendants asserted there was “no genuine issue of material fact because plaintiff’s use of the vehicle indicates he was the constructive owner, making him ineligible for PIP benefits.” The court noted that it and the Supreme Court have considered several “factors in determining whether a person’s use of a vehicle is sufficient to establish constructive ownership[.]” The court found that the trial court’s conclusion “the facts were unrebutted based on plaintiff’s deposition and application was incorrect in part. Plaintiff’s application was contradicted on three points—[he] denied that he contributed money toward the purchase of the vehicle, that he used the vehicle daily, and that he purchased” gas for it. But he “did not contradict his application on five points—[he] used the vehicle, not daily as initially reported, but a couple of times over the course of the eight days; [he] had access to a set of keys, but later testified that he did not have his own set of keys; [he] had not ever had to ask for permission to use the vehicle; [he] had never been denied permission to use [it]; and [he] gave himself permission to use [it] on the date of the accident.” However, he identified his girlfriend (L) as the only owner of the car “on his application and, during his deposition, plaintiff denied that he owned a car.” He additionally explained that it “was there for him to drive if he ‘needed to, like if [he] need[ed] to do something . . . .’ Thus, although plaintiff had access to the car’s keys, he did not have unfettered use of the vehicle as an owner would.” The court noted that he used it “sporadically, albeit apparently without securing [L’s] permission given their relationship.” Considering the evidence in the light most favorable to him, the court found a fact question existed on the constructive ownership issue. Remanded.