A concurring opinion by a justice of the Supreme Court of Michigan highlights what may be “the most perverse aspect” of the state's no-fault insurance law.
The Case
Tracy Brickey asserted that he was severely injured when he was struck by a vehicle driven by Vincent McCarver (and owned by CR Motors of Adrian, Inc.) while he was operating his motorcycle.
Mr. Brickey sued Mr. McCarver and CR Motors for negligence. They moved for summary disposition, contending that the motorcycle Mr. Brickey was operating was uninsured and that, accordingly, he was precluded from recovery under Michigan law, MCL 500.3135(2)(c).
The trial court granted the motion, and Mr. Brickey appealed. He argued that the trial court had erred by granting summary disposition in favor of Mr. McCarver and CR Motors because MCL 500.3135(2)(c), by its plain language, applied only to uninsured “motor vehicles,” as opposed to motorcycles and, therefore, did not limit his right to seek tort damages.
The appellate court reversed. It agreed with Mr. Brickey, explaining that the definition of “motor vehicle” in Michigan law specifically excluded motorcycles and that MCL 500.3135(2)(c) does not limit the right of motorcyclists to recover damages.
Mr. McCarver and CR Motors sought leave to appeal to the Michigan Supreme Court.
Michigan Law
MCL 500.3135(2)(c) provides:
(2) For a cause of action for damages pursuant to subsection (1) filed on or after July 26, 1996, all of the following apply: . . .
(c) Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.
MCL 500.3101(2)(i) defines “motor vehicle” as a:
vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels.
The Michigan Supreme Court's Decision
The court denied leave to appeal.
A concurring opinion by Justice Brian K. Zahra, in which Justice Stephen J. Markman joined, agreed that the court should not grant leave to appeal, but also pointed out “perhaps the most perverse aspect” of the Michigan no-fault law: that a person may drive a motorcycle without insurance and receive no-fault benefits if the person is involved in an accident with a motor vehicle and sustains injury.
Justice Zahra explained that this is based on MCL 500.3114(5), which allows “[a] person suffering accidental bodily injury arising from a motor vehicle accident that shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers,” while MCL 500.3135(2)(c) only precludes an award of damages for “a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by [MCL 500.3101] at the time the injury occurred” – a requirement that does not apply to owners or registrants of a motorcycle.
As Justice Zahra observed, this “may be a legislative oversight that can be corrected only through the legislative process.” Whether the legislature will act remains to be seen.
The case is Brickey v. McCarver, 919 N.W.2d 412 (Mich. Ct. App. 2018), leave to appeal denied by Brickey v. McCarver, No 158060 (Mich. Mar. 8, 2019).
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].