Auto negligence; Noneconomic damages; No-fault bar for uninsured constructive owners; MCL 500.3135(2)(c); Constructive ownership; “Having the use” of for greater than 30 days; MCL 500.3101(3)(l)(i); Excluded driver/uninsured vehicle; Bronson Health Care Group, Inc v State Auto Prop & Cas Ins Co; “Proprietary or possessory” use; Ardt v Titan Ins Co; Chop v Zielinski

The court held that summary disposition of plaintiff’s auto-negligence claim for noneconomic damages was improper because a genuine issue of material fact existed as to whether she was a constructive owner of the uninsured vehicle she was driving, and the no-fault bar in MCL 500.3135(2)(c) applies only if she was operating “her own vehicle” without the security required by MCL 500.3101(1). Defendant ran a red light and struck the car plaintiff was driving. That vehicle was titled to her daughter and was covered by a no-fault automobile insurance policy, but plaintiff was “expressly listed as an excluded driver.” The trial court ruled plaintiff was a constructive owner because she had the keys, drove the vehicle regularly, and did not need permission, so she was barred from noneconomic damages under MCL 500.3135(2)(c). The court reiterated that “a validly excluded driver’s act of driving the insured vehicle at the time of the accident renders the vehicle uninsured.” But it explained that the “‘question of ownership is one of fact’” and that “having the use” under MCL 500.3101(3)(l)(i) means using the vehicle “‘in ways that comport with concepts of ownership,’” i.e., “‘proprietary or possessory usage, as opposed to merely incidental usage under the direction or with the permission of another.’” Applying Ardt and Chop, the court found that defendant’s reading, i.e., “‘unrestricted, regular daily use,’” was one of the possible interpretations of the evidence, but viewing the evidence favorably to plaintiff, a factfinder could conclude the use was limited and nonproprietary: plaintiff lived with the title owner, used the vehicle only to drop off and pick up her daughter at work, testified “she ‘never’ used it for any other purpose[,]” and kept the only set of keys simply because she had to return home after drop-off. Because these facts supported a reasonable inference of limited, daughter-benefit use rather than ownership-like control, “there is a genuine issue of material fact” on constructive ownership, making summary disposition improper. Reversed and remanded. The court noted that on remand the trial court should address threshold injury under MCL 500.3135(1).