Uninsured motorist (UM) benefits; Effect of plaintiff’s inability to serve & join the other driver involved in the accident as a party; Voluntary dismissal; MCR 2.504(A)(1)(a); MCR 2.102(E)(1) (action was deemed dismissed without prejudice when a party was not served with process); Whether plaintiff could establish the other driver’s liability without him being a named party

Holding that the absence of the other driver involved in the accident (defendant-Young) due to an inability to serve him did not bar plaintiff’s UM benefits claim against defendant-insurer, the court reversed summary disposition for the insurer and remanded. A car driven by Young rear-ended plaintiff’s vehicle. She asserted claims “for negligence against Young and for UM benefits against defendant.” She obtained a second summons after unsuccessful efforts to serve Young but was unable to perfect service on him before it expired. Almost a year later, she voluntarily dismissed her claims against him. Defendant then successfully moved for summary disposition on the basis “plaintiff’s claim for UM benefits failed as a matter of law because [she] could not prove fault when the alleged at-fault driver (i.e., Young) was no longer a party to the case.” She argued on appeal that Young’s dismissal had no effect on her ability to establish “her UM benefits claim against defendant.” The court agreed. “Under MCR 2.102(E)(1), the action was deemed dismissed without prejudice as to Young when he was not served with process by [3/1/23]. The clerk was required to examine the records and enter an order dismissing the action as to Young.” The claim against him did not continue after 3/1/23, “because the clerk’s failure to enter a dismissal did not continue the action.” Thus, plaintiff’s later voluntary dismissal as to Young “had no effect on the case against [him]; and because Young had not submitted to the trial court’s jurisdiction as required under the court rules, the trial court’s reliance on MCR 2.504(A)(1)(a) was misplaced. Therefore, because the action against Young was not voluntarily dismissed under MCR 2.504(A)(1)(b), there was no adjudication on the merits of [his] fault[.]” The court further concluded that “plaintiff can establish under Michigan law that Young is liable for her injuries without him being a named party.” The policy language was unambiguous and did not require her to “first bring a successful claim against the uninsured motorist or that the uninsured motorist must be a party to the action. Rather, the policy only requires plaintiff to establish she is ‘legally entitled to recover damages’ from Young.” Even if he cannot be located to testify, she can establish his “fault with other evidence, including her own testimony.”