CASES (2022)

Coakley v. Cole

United States District Court for the Southern District of Mississippi, Northern Division

July 22, 2022, Decided; July 22, 2022, Filed

CIVIL ACTION NO. 3:22-cv-00251-TSL-LGI

Reporter

2022 U.S. Dist. LEXIS 130224 *; 2022 WL 2911660

JAMES COAKLEY AND WIFE ANTONYA COAKLEY, PLAINTIFFS VS. ARCHIE FRANKLIN COLE, JR. AND HANSEN & ADKINS AUTO TRANSPORT, INC., DEFENDANTS

Core Terms

punitive damages, plaintiffs’, gross negligence, training, reckless, supervision, speed, allegations, hiring, claim for punitive damages, entrustment, traveling, vicarious

Counsel: [*1] For James Coakley, Antonya Coakley, Wife, Plaintiffs: John L. Walker, Jr., LEAD ATTORNEY, WALKER GROUP, PC, Jackson, MS.

For Archie Franklin Cole, Jr., Hansen & Adkins Auto Transport, Inc., Defendants: David C. Dunbar, LEAD ATTORNEY, DUNBARMONROE, PLLC, Ridgeland, MS; Christopher G. Dunnells, DUNBARMONROE, PLLC, Ridgeland, MS.

Judges: Tom S. Lee, UNITED STATES DISTRICT JUDGE.

Opinion by: Tom S. Lee

Opinion

MEMORANDUM OPINION AND ORDER

Plaintiffs James Coakley and Antonya Coakley have brought the present action seeking damages stemming from an automobile accident in which a tractor-trailer owned by defendant Hansen & Adkins Auto Transport, Inc. (H&A), and operated by defendant Cole in the course and scope of his employment with H&A, crashed into the rear of the vehicle operated by James Coakley. Plaintiffs’ complaint demands actual and punitive damages from both defendants based on claims against Cole of negligence and gross negligence, and against H&A for vicarious liability and for negligence and/or gross negligence in its hiring, training, retention, entrustment and supervision of Cole. The cause is presently before the court on the motion of defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings as to plaintiffs’ [*2] punitive damages claim against Cole and their direct negligence and gross negligence claims against H&A. Plaintiffs have responded in opposition to the motion, and the court, having considered the memoranda of authorities submitted by the parties, concludes that the motion should be granted.

Pleading Standard

A motion brought under Rule 12(c) is evaluated under the same standard that applies to a Rule 12(b)(6) motion to dismiss for failure to state a claim. In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 209 (5th Cir. 2010). “The fundamental question is whether the plaintiff states a claim on which relief may be granted.” Morris v. PLIVA, Inc., 713 F.3d 774, 776 (5th Cir. 2013). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).¹ “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., 129 S. Ct. 1937. It follows that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’—’that the pleader is entitled to relief.'” Id. at 679, 129 S. Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)). In deciding whether the complaint states [*3] a valid claim for relief, the court must “accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff.” Great Lakes, 624 F.3d at 210. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 663, 129 S. Ct. 1937 (internal citation omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. at 678, 129 S. Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.'” Id., 129 S. Ct. at 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).

Plaintiffs’ Complaint

Plaintiffs’ complaint, in its “Facts” section, states that on January 9, 2019, plaintiff James Coakley was driving eastbound on I-20 in the right lane of traffic while Cole, driving an 18-wheeler, was traveling behind him in the right lane “at a high rate of speed.” As Coakely slowed his vehicle down because of a collision ahead of him, “the 18 wheeler driven by defendant Cole suddenly and violently, without warning or notice, collided with great force” into the rear of Coakely’s vehicle, propelling the vehicle onto, across and off the south shoulder of I-20 and into a ditch, and causing the airbag [*4] to deploy. The collision occurred, the complaint recites, “[a]s a result of Defendant Cole grossly negligently and recklessly operating and handling the 18 wheeler … in the manner described….” In the first count, the complaint goes on to list various ways in which Cole was allegedly negligent, namely, by failing to maintain a proper lookout, keep the vehicle under free and easy control, maintain an appropriate speed for the existing circumstances, maintain a safe traveling distance, and comply with unspecified local and state traffic laws and federal motor carrier laws. It further recites that Cole “committed reckless [and] grossly negligent … acts and omissions” by “[d]riving recklessly” and “[d]riving faster than the appropriate speed for the circumstances.”

The second count charges that H&A is vicariously liable for Cole’s negligence, as Cole was operating the 18-wheeler in the course and scope of his employment with H&A at the time of the accident, and they next allege as the third count that H&A is directly liable for its own negligence and/or gross negligence and recklessness in failing to properly screen and/or perform a complete and thorough background investigation of [*5] Cole before hiring him; failing to properly train Cole before allowing him to operate an 18 wheeler and/or to periodically train him thereafter; failing to develop, implement and/or enforce reasonable and prudent safety programs and procedures; failing to supervise and manage Cole; and failing to comply with federal and state statutes and regulations, including the Federal Motor Carrier Safety Act, 49 C.F.R. Parts 383 to 399. Lastly, plaintiffs assert a separate “Punitive Damages Liability of Defendants” count in which they charge that “the aforesaid acts and/or omissions of Defendants constitute grossly negligent, reckless conduct and wanton disregard for the rights of Plaintiff … which entitles Plaintiffs to recover punitive and exemplary damages against Defendants….”

Punitive Damages: Cole

Defendants argue that plaintiffs’ complaint does not state a viable claim against either of them for punitive damages. Under Mississippi law, which applies in this diversity action,

Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or [*6] reckless disregard for the safety of others, or committed actual fraud.

Miss. Code. Ann. § 11-1-65(1)(a). See also Bradfield v. Schwartz, 936 So. 2d 931, 936 (Miss. 2006) (“In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.”). Punitive damages are not appropriate in most cases; instead, they are reserved for the most extreme cases and “allowed only with caution and within narrow limits.” Steele v. Phillips, No. 1:20cv207-HSO-RHWR, 2021 U.S. Dist. LEXIS 231639, 2021 WL 5762090, at *2 (S.D. Miss. 2021) (quoting Wallace v. Thornton, 672 So. 2d 724, 728 (Miss. 1996)).

The Mississippi Supreme Court has defined “[g]ross negligence,” as will support an award of punitive damages, as “that course of conduct which, under the particular circumstances, disclosed a reckless indifference to consequences without the exertion of any substantial effort to avoid them.” Turner v. City of Ruleville, 735 So. 2d 226, 229 (Miss. 1999). Recklessness, for purposes of automobile law, has been defined as “[the] voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and [*7] the reckless taking of chance of accident happening without intent that any occur….” Id.

Here, although plaintiffs’ complaint repeatedly describes Cole’s actions as “grossly negligent and reckless,” there are no factual allegations to support these characterizations; plaintiffs’ allegations do not plausibly suggest anything more than simple negligence. “Mississippi state courts are generally resistant to awarding punitive damages in automobile collision cases, especially those that involve ‘mere commission of traffic violations.'” Steele, 2021 U.S. Dist. LEXIS 231639, 2021 WL 5762090, at *2 (quoting Walker v. Smitty’s Supply, Inc., No. 5:06cv30-DCB-JMR, 2008 U.S. Dist. LEXIS 37949, 2008 WL 2487793, at *6 (S.D. Miss. May 8, 2008)). That precisely describes the case presented by plaintiffs’ complaint. In their response to defendants’ motion, plaintiffs, after quoting nearly their entire complaint, announce that the allegations “clearly exceed” the applicable pleading standard, but the only factual allegation they specifically argue that “could plausibly support a claim for punitive damages” is their assertion that the 18-wheeler driven by Cole was traveling at an excess speed while approaching the scene of an accident. This is clearly insufficient to support a claim for punitive damages. See 2021 U.S. Dist. LEXIS 231639, [WL] at *2 (stating that “although Defendant was admittedly speeding,” and there was no dispute [*8] that he was negligent, “no reasonable jury could conclude by clear and convincing evidence that his conduct rose to the level of ‘gross negligence which evidences a willful, wanton or reckless disregard for the safety of others.'”); see also Rasdon v. E 3 Trucking, Inc., No. 3:19CV100-M-P, 2019 U.S. Dist. LEXIS 155582, 2019 WL 4346576, at *2 (N.D. Miss. 2019) (citing Aldridge v. Johnson, 318 So. 2d 870 (Miss. 1975), stating, “If the Mississippi Supreme Court is unwilling to allow a jury to be instructed on punitive damages where the driver caused a wreck by exceeding the speed limit and crossing a double yellow line to travel in the opposite lane in an attempt to pass two vehicles,” then allegation that defendant driver was driving at 65 miles per when he rear-ended plaintiffs, who were driving at 20 miles per hour, was not sufficient to state a punitive damages claim); Terrell v. W.S. Thomas Trucking, Inc., No. 1:99CV307-D-D, 2001 U.S. Dist. LEXIS 25455, 2001 WL 1593135, at *1 (N.D. Miss. Mar. 6, 2001) (facts that defendant was traveling twenty miles per hour over speed limit when he collided with vehicle in which plaintiff was a passenger would not support claim for punitive damages); Aldridge, 318 So. 2d at 871-873 (proof that collision occurred while defendant was passing two cars over double yellow lines at seventy miles per hour on two-lane highway in the rain after passing sign that read “Slow to 45” did not support award of punitive damages).² Therefore, plaintiffs’ claim against Cole for the recovery [*9] of punitive damages will be dismissed.

Direct Negligence/Gross Negligence Claims against H&A

H&A seeks dismissal of plaintiffs’ claim against it for alleged simple negligence, i.e., for negligent hiring, retention, investigation, training, entrustment and supervision, on the dual bases that (1) their claim is unsupported by factual allegations that are required to satisfy the applicable pleading standard, and (2) the claims are not viable in light of H&A’s admission of vicarious liability for any negligence of Cole that may have proximately caused or contributed to the accident.

This court recognized in Robinson v. Colucci, No. 3:16CV687TSL-RHW, 2017 U.S. Dist. LEXIS 230450, 2017 WL 11379844 (S.D. Miss. 2017), that not only have the federal courts in this state “long opined that independent, or non-respondeat superior claims against an employer for simple negligence, including claims for negligent entrustment and failure to train and supervise employees, are properly dismissed where vicarious liability is admitted,” 2017 U.S. Dist. LEXIS 230450, [WL] at *2 (citing cases), but recently, in Carothers v. City of Water Valley, 242 So. 3d 138, 2017 WL 2129701 (Miss. Ct. App. 2017), the Mississippi Court of Appeals, citing Davis v. ROCOR International, No. 3:00-CV-864, 2001 U.S. Dist. LEXIS 26216, at *20 (S.D. Miss. Dec. 19, 2001), adopted the same position, concluding that since the employer had conceded liability, there was no basis for allowing the plaintiffs to proceed on direct-liability claims against the [*10] employer, Robinson, 2017 U.S. Dist. LEXIS 230450, 2017 WL 11379844, at *5. See also Clark v. Lard Oil Co., NO. 2:18-cv-00109-KS-MTP, 2019 U.S. Dist. LEXIS 198298, 2019 WL 5802379, at *3 (S.D. Miss. 2019) (“[U]nder Mississippi law, when an employer admits vicarious liability for the actions of its employee, all direct negligence claims against the employer, such as negligent hiring, training, retention, entrustment, supervision, and maintenance, are due to be dismissed” as redundant) (citing Roberts v. Ecuanic Express, Inc., No. 2:12-cv-84, 2012 U.S. Dist. LEXIS 103371, 2012 WL 3052838, at *2 (S.D. Miss. July 25, 2012) (explaining that “once an employer has admitted that it is liable for an employee’s actions, evidence pertaining only to issues of negligent hiring, entrustment, supervision or maintenance become superfluous and possibly unfairly prejudicial”)). The court is unpersuaded by plaintiffs’ arguments for a contrary rule.

The court is also of the opinion, moreover, that plaintiffs’ allegations are insufficient to state a claim of direct negligence against H&A in any event. See Cecil v. Smith, No. 1:13CV201-SA-DAS, 2014 U.S. Dist. LEXIS 49034, 2014 WL 1394360, at *3 (N.D. Miss. 2014) (dismissing direct negligence claims against employer where there was “no factual basis evidencing a reason that DLT failed to exercise due care in the hiring, training, retention, and/or supervision of Smith, or that DLT Trucking breached any duty pursuant to the Federal Motor Carrier Regulations other than Plaintiff’s bald assertions.”). [*11] Plaintiffs allege that H&A failed to thoroughly investigate Cole’s background but do not even intimate what an investigation would have revealed. They state that he was not properly trained but do not suggest in what way his training was inadequate. They charge that H&A failed to have or enforce “safety programs or procedures” relating to driver screening or training, and more vaguely, to “management programs and policies”; but these are just conclusory charges, devoid of factual substance. The same is true of their allegation that H&A failed to “abide by and strictly comply with all Federal and State Statutes and Regulations, including but not limited to the FMCSR.” Plaintiffs offer no facts that would support a direct claim of even simple negligence, much less a claim of gross negligence as would be needed to support a claim for punitive damages.³

Plaintiff’s Request to Amend

Plaintiffs request that in the event the court concludes their complaint is deficient as to the claims addressed by defendants’ motion, the court should allow them to amend their complaint to provide more specific allegations. Plaintiffs’ “request” will be denied. However, there is nothing to prevent plaintiffs [*12] from timely filing a proper motion to amend, accompanied by a proposed amended complaint, in accordance with the Federal Rules of Civil Procedure and this court’s local rules.

Conclusion

Based on the foregoing, it is ordered that defendants’ motion for judgment on the pleadings as to plaintiffs’ claims against Cole for punitive damages and their direct liability claims against H&A is granted.

SO ORDERED this 22nd day of July, 2022.

/s/ Tom S. Lee

UNITED STATES DISTRICT JUDGE

End of Document

¹This federal standard applies to plaintiffs’ complaint, despite the fact that this case was removed from state court. See Peña v. City of Rio Grande City, 879 F.3d 613, 617 (5th Cir. 2019) (holding that “[u]pon removal the federal pleading standards control.”).

²The cases cited by plaintiffs are clearly distinguishable. This court in Bass v. Hirschbach Motor Lines, Inc., Civ. No. 3:14CV360TSL-JCG, 2014 U.S. Dist. LEXIS 145712, 2014 WL 5107594 (S.D. Miss. 2014), found allegations that the driver of a tractor-trailer rig “was so inattentive at the time of the collision that he not only failed to check for traffic in the outside lane before moving right, but after striking Mrs. Bass’s vehicle he pushed it down the interstate an estimated distance of 1/4 mile … at an estimated speed of 50-55 miles an hour without ever realizing he had struck Mrs. Bass’s car.” 2014 U.S. Dist. LEXIS 145712, [WL] at *1. In Barnes v. Carpenter, No. 2:14-CV-144-KS-MTP, 2014 U.S. Dist. LEXIS 160576, 2014 WL 6068943 (S.D. Miss. 2014), the court stated that while punitive damages are not appropriate in cases involving the mere commission of traffic violation, they “may be available where a driver/tortfeasor operates his vehicle while under the influence of an intoxicant.” 2014 U.S. Dist. LEXIS 160576, [WL] at *1. The court thus found the plaintiff’s allegation that the defendant motorist was impaired at the time of the accident sufficient to withstand a Rule 12(b)(6) motion to dismiss. Id. And in Gaddis v. Hegler, No. 3:10-CV-249-CWR-LRA, 2011 U.S. Dist. LEXIS 59027, 2011 WL 2111801 (S.D. Miss. 2011), there was evidence that the defendant driver was using her cell phone to make or receive calls or texts at the time of the accident and that “at least some of these distractions caused [her] to drive in excess of the speed limit; caused her not to see two stop light ahead warning signs; caused her to run the red light, which was ‘red for more than 10 seconds prior to impact;’ and caused her to cross over ‘two northbound lanes of Highway 25 … before the impact occurred.'” 2011 U.S. Dist. LEXIS 59027, [WL] at *4. In contrast to the cited cases, plaintiffs herein allege only that Cole was driving at an inappropriate rate of speed for the circumstances. There is no allegation that he was distracted, or utterly inattentive, or in any way impaired.

³An employer’s admission of vicarious liability does not insulate it against a claim for punitive damages based on its direct gross negligence In hiring, training, supervising and the like. See Bass, 2014 U.S. Dist. LEXIS 145712, 2014 WL 5107594, at *3 (fact that court has previously dismissed independent simple negligence claims against employer for compensatory damages does not automatically foreclose plaintiffs’ punitive damages claims against the employer). Such claim may not proceed, however, where there are no factual allegations to back it up.

Alesevic v. Gordon

Court of Appeals of Michigan

June 30, 2022, Decided

No. 358507

Reporter

2022 Mich. App. LEXIS 3815 *; 2022 WL 2380704

HARIS ALESEVIC, Plaintiff, v RUSSELL GORDON, CITY OF DETROIT, and WAYNE COUNTY, Defendants, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant, and ACCEPTANCE INDEMNITY INSURANCE COMPANY, Defendant-Appellee.

Notice: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

Prior History: [*1] Wayne Circuit Court. LC No. 19-011275-NI.

Alesevic v. Gordon, 2020 Mich. App. LEXIS 8515 (Mich. Ct. App., Dec. 17, 2020)

Core Terms

coverage, endorsement, benefits, insurance policy, insured, tractor, no-fault, modified, named insured, motorcycle, summary disposition, mandatory coverage, injuries, policies

Counsel: For HARIS ALESEVIC, Plaintiff – Appellee: KEITH M BANKA.

For RUSSELL GORDON, Defendant: KRISTI E SOLON.

For DETROIT CITY OF, Defendant: MARY BETH COBBS.

For WAYNE COUNTY, Defendant: JASON H HARRISON SR.

For PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant – Appellant: JEREMIAH L FANSLAU.

Judges: Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.

Opinion

Per Curiam.

Defendant, Progressive Michigan Insurance Company (Progressive), appeals by right a stipulated order dismissing claims by plaintiff against Progressive. Progressive is challenging the trial court’s earlier order that granted summary disposition in favor of defendant, Acceptance Indemnity Insurance Company (Acceptance). We affirm.

Plaintiff was a passenger in a car being driven by defendant, Russell Gordon. The vehicle either hit a dip in the road, or Gordon attempted to avoid a dip in the road, which caused the car to swerve and ultimately crash through a fence and strike a parking-lot pole. Plaintiff suffered a variety of injuries. At the time of the accident, plaintiff and Gordon had automobile insurance policies through Progressive, and plaintiff owned a 2007 Volvo tractor that could be used to haul semitrailers [*2] hitched to the tractor. Plaintiff had a non-trucking insurance policy with Acceptance that covered the tractor. Such non-trucking insurance policies are generally known as “bobtail” policies, insuring the tractor and driver of the rig when the tractor is operated absent a semitrailer or cargo. See Besic v Citizens Ins Co of the Midwest, 290 Mich App 19, 22 n 1; 800 NW2d 93 (2010). We discuss in our analysis below the pertinent language in the Acceptance insurance policy.

Plaintiff commenced suit against Progressive and Acceptance for underinsured motorist benefits, uninsured motorist benefits, and personal protection insurance (PIP) benefits related to injuries plaintiff sustained in the motor vehicle accident. Plaintiff also filed various claims against the remaining defendants, none of whom are parties to this appeal. The appeal solely entails Progressive and Acceptance and the payment of PIP benefits. The other claims were ultimately resolved or dismissed. Acceptance moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff’s insurance policy was a bobtail policy that only applied to accidents involving the Volvo tractor. Acceptance further contended that the PIP endorsement associated with the Acceptance policy was not applicable to plaintiff because there [*3] was an exclusion to the endorsement that was implicated because plaintiff is a “named insured” on his Progressive policy. The trial court granted Acceptance’s motion for summary disposition and subsequently denied Progressive’s motion for reconsideration.¹ Eventually, plaintiff and Progressive stipulated to the dismissal of plaintiff’s claims against Progressive, and this appeal followed.

This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). Additionally, we review de novo issues concerning the proper interpretation of a contract and the legal effect or application of a contract. Rory v Continental Ins Co, 473 Mich. 457, 464; 703 N.W.2d 23 (2005).

In ascertaining the meaning of a contract such as an insurance policy, this Court gives the words used in the contract their plain and ordinary meaning, as would be apparent to a reader of the instrument. Id. A fundamental tenet of Michigan jurisprudence is that an unambiguous contract is not open to judicial construction and must be enforced as written, thereby respecting the freedom of individuals to arrange their affairs by contract. Id. at 468. In Hunt v Drielick, 496 Mich 366, 372-373; 852 NW2d 562 (2014), our Supreme Court observed:

An insurance policy is similar to any other contractual agreement, and, thus, the court’s role is to determine [*4] what the agreement was and effectuate the intent of the parties. We employ a two-part analysis to determine the parties’ intent. First, it must be determined whether the policy provides coverage to the insured, and, second, the court must ascertain whether that coverage is negated by an exclusion. While it is the insured’s burden to establish that his claim falls within the terms of the policy, the insurer should bear the burden of proving an absence of coverage. Additionally, exclusionary clauses in insurance policies are strictly construed in favor of the insured. . . . However, it is impossible to hold an insurance company liable for a risk it did not assume, and, thus, clear and specific exclusions must be enforced. [Quotation marks, citations, and brackets omitted.]

On appeal, Progressive argues that plaintiff, as an individual, was the named insured under the insurance policy issued by Acceptance. Further, Progressive contends that the PIP endorsement to the Acceptance policy indicated that it would provide PIP benefits to plaintiff consistent with the no-fault act, MCL 500.3101 et seq., if he sustained an injury in an accident that resulted from the use of “an auto” as “an auto,” which language [*5] would encompass Gordon’s vehicle. Thus, according to Progressive, Acceptance and Progressive are in the same order of priority under MCL 500.3114(1), thereby mandating a pro rata split or equitable division under former MCL 500.3115(2) in regard to the payment of PIP benefits.² Acceptance counters that its policy did not provide coverage under the circumstances presented because the accident did not involve the 2007 Volvo tractor. Acceptance additionally argues that a policy exclusion barred PIP coverage because plaintiff was a “named insured” and could collect PIP benefits under his Progressive policy. Accordingly, because there was no coverage, and because, assuming coverage, an exclusion applied, Progressive alone was responsible for the payment of PIP benefits, and the purported issue of priority, equal or otherwise, was irrelevant.

The certificate of insurance for plaintiff’s policy with Acceptance provided that it was part of the insurance agreement and that PIP coverage, among other coverages, would “apply only to the Specified ‘Auto’ or ‘Autos’ below.” (Emphasis added.) And the only auto listed in the certificate of insurance was the “2007 Volvo Tractor.” This language plainly and unambiguously precluded [*6] liability by Acceptance to pay PIP benefits in relation to an accident that did not involve the Volvo tractor even though plaintiff may have suffered injuries in the accident. The Acceptance insurance policy, however, also contained a Michigan PIP endorsement, which Progressive contends overrode the certificate of insurance or broadened the PIP coverage. More specifically, the PIP endorsement provided, in part:

We will pay personal injury protection benefits to or for an “insured” who sustains “bodily injury” caused by an “accident” and resulting from the ownership, maintenance or use of an “auto” as an “auto.” These benefits are subject to the provisions of Chapter 31 of the Michigan Insurance Code. . . . [Emphasis added.]

Progressive, relying on this provision, maintains that plaintiff was the “insured” under the Acceptance policy and that the plain language of the endorsement did not limit its application to any particular vehicle.

Acceptance challenges Progressive’s argument regarding the PIP endorsement, asserting, in part, that the endorsement modified the insurance policy but only with respect to a covered automobile, which, again, was solely the 2007 Volvo tractor. Progressive [*7] argues that Acceptance essentially cherry-picks from the language in the PIP endorsement and does not read the endorsement’s introductory language in its entirety. The PIP endorsement to the Acceptance insurance policy provided, in part:

For a covered “auto” licensed or principally garaged in, or “garage operations” conducted in, Michigan, this endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM

GARAGE COVERAGE FORM

MOTOR CARRIER COVERAGE FORM

TRUCKERS COVERAGE FORM.

With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. [Emphasis added.]

Progressive maintains that the coverage form at issue in this case was the “NON-TRUCKING AUTOMOBILE COVERAGE FORM,” and not any of the coverage forms listed in the PIP endorsement. Therefore, according to Progressive, the emphasized language in the above-quoted passage was implicated, and it effectively expanded PIP coverage to encompass injuries incurred by plaintiff in any auto accident.

We do not agree with Progressive’s construction of the introductory language found in the PIP endorsement. The covered “auto” was the Volvo tractor, so the [*8] PIP endorsement modified insurance in connection with the Volvo tractor, but then only in regard to coverage forms that were not applicable in this case. We note that if one of the coverage forms listed in the PIP endorsement had in fact been applicable, there would perhaps be tension between the “covered auto” language and the “an auto” language in the PIP endorsement. Progressive relies on the sentence in the PIP endorsement that we quoted and emphasized above: “With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.” But this language was simply referring to the listed coverage forms, inapplicable here, indicating that their provisions continued to govern unless the endorsement modified them. In sum, there was nothing in the PIP endorsement that negated or broadened the language in the certificate of insurance that plainly and unambiguously limited PIP coverage to injuries arising out of accidents involving the Volvo tractor.

Furthermore, assuming that the PIP endorsement was applicable, the endorsement provided for the following exclusion in section C of the endorsement:

We will not pay personal injury protection [*9] benefits for “bodily injury”

* * *

6. To anyone entitled to Michigan no-fault benefits as a Named Insured under another policy. This exclusion does not apply to you or anyone “occupying” a motorcycle.

Plaintiff was a named insured in his Progressive policy. Accordingly, the exclusion identified in the PIP endorsement was implicated and needed to be honored assuming general application of the endorsement in the first place.

Progressive argues that the exclusion was unenforceable because the no-fault act statutorily mandates PIP-benefit coverage in automobile insurance policies. Progressive also claims that there was an exclusion within the exclusion as to “you,” which was a reference to plaintiff, maintaining that “you” did not modify “occupying a motorcycle.” Both of these arguments are unavailing.

In Johnson v USA Underwriters, 328 Mich App 223; 936 NW2d 834 (2019), this Court stated:

The no-fault act . . . does not address, let alone bar, an insurer’s ability to sell optional insurance coverages only. In this case, the USA policy did not provide the mandatory no-fault coverages to Vandeinse. Indeed, USA does not offer mandatory coverages to any customers; it only sells collision and comprehensive policies, which, according to Vandeinse’s insurance agent, [*10] are sometimes bundled with other insurance policies for a reduced cost. Because the no-fault act does not bar this practice, it does not violate Michigan law, and we cannot read into the statute something that is not there.

* * *

The dissent concludes that the no-fault act “implicitly” requires that every insurer provide policies that include the mandatory coverages, and then—and only then—can an insurer “delete” coverages after verification that the insured will not operate the vehicle on a roadway. However, the no-fault act does not state that every insurer must provide mandatory coverages. Instead, MCL 500.3101(1) requires that any insured who intends to drive on a highway must have the mandatory coverages. The no-fault act also allows insurers to delete coverages from policies that have already been issued. The dissent has not identified any statutory provision that requires insurers to provide mandatory coverages when issuing policies to insureds. If that was the Legislature’s intent, it would have included such a provision in the no-fault act.

Accordingly, Acceptance’s non-trucking insurance policy—a bobtail policy³—was not required to provide PIP benefits to plaintiff. And plaintiff had existing [*11] PIP coverage through Progressive, so he was not without such coverage. Therefore, the exclusion in the PIP endorsement was enforceable.

Finally, we reject Progressive’s interpretation of the exclusion within the exclusion, which provides: “This exclusion does not apply to you or anyone ‘occupying’ a motorcycle.” This language plainly and unambiguously provided an exclusion to the exclusion for a motorcycle occupant, whether it be “you” or “anyone” riding on the motorcycle. “[Y]ou” and “anyone” both modify ” ‘occupying’ a motorcycle.’ ” If the language were construed to exclude “you” in general, it would effectively swallow up the exclusion regarding persons entitled to PIP benefits as a named insured under a different insurance policy.

In sum, we conclude that there is no genuine issue of material fact that Progressive was the only party obligated to provide PIP benefits in relation to plaintiff’s injuries; there was no true priority issue. Therefore, we hold that the trial court did not err by granting Acceptance’s motion for summary disposition.

We affirm. Having fully prevailed on appeal, Acceptance may tax costs under MCR 7.219.

/s/ Jane E. Markey

/s/ Douglas B. Shapiro

/s/ Sima G. Patel

End of Document

¹We note that the trial court provided no analysis, reasoning, or explanation whatsoever in either granting the motion for summary disposition and in denying the motion for reconsideration; the court simply granted and denied the motions without saying anything more.

²MCL 500.3114 and MCL 500.3115 were amended pursuant to 2019 PA 21 after the events in this case. The amendment does not affect our analysis, and current MCL 500.3114(8), comparable to former MCL 500.3115(2), now provides for the equal division of PIP-payment obligations with respect to insurers of equal priority.

³This Court approved of such policies in Integral Ins Co v Maersk Container Serv Co, Inc, 206 Mich App 325, 330-332; 520 NW2d 656 (1994).