2020 WL 5580140

Court of Appeals of Michigan.
Gavril MICLEA, Plaintiff,
and
Michigan Head & Spine Institute, P.C., Intervening Plaintiff,
v.
CHEROKEE INSURANCE COMPANY, Defendant-Appellee,
and
Auto Club Insurance Association, Defendant-Appellant,
and
Michigan Assigned Claims Plan and Michigan Automobile Insurance Placement Facility, Defendants.
No. 344694
|
September 17, 2020, 9:15 a.m.
Wayne Circuit Court, LC No. 16-011913-NF
Before: Ronayne Krause, P.J., and K. F. Kelly and Tukel, JJ.
Opinion

Ronayne Krause, P.J.

*1 Defendant Auto Club Insurance Association (Auto Club) appeals as of right the stipulated judgment entered in favor of plaintiff Gavril Miclea. That stipulated judgment expressly permitted Auto Club to appeal the trial court’s previous order denying its motion for summary disposition and granting summary disposition to defendant Cherokee Insurance Company (Cherokee), holding that Auto Club was the highest-priority no-fault insurer for purposes of plaintiff’s claim for personal protection insurance (PIP) benefits under Michigan’s no-fault act, MCL 500.3101 et seq. On appeal, Auto Club argues that the trial court erred by concluding that it was the highest-priority no-fault insurer rather than Cherokee pursuant to MCL 500.3114(3). We agree. We therefore reverse the order granting summary disposition in favor of Cherokee and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff suffered injuries when he slipped and fell while trying to put antifreeze in his 2000 Volvo tractor (the truck). At the time, plaintiff was performing truck-driving services under an independent-contractor agreement with Universal Am-Can, Ltd. (Universal). Plaintiff testified that he held legal title to the truck, and at the time of the accident, Universal was leasing the truck from him. Plaintiff maintained personal automobile insurance through Auto Club, and Universal maintained business automobile insurance through Cherokee. After unsuccessfully pursuing PIP benefits from Auto Club, Cherokee, and defendant Michigan Assigned Claims Plan, plaintiff filed this lawsuit, seeking a determination as to which insurer was highest in priority for purposes of his claim for PIP benefits. Intervening plaintiff Michigan Head & Spine Institute, P.C., one of plaintiff’s healthcare providers, also filed an intervening complaint to recover benefits for the services it provided.

Cherokee moved for summary disposition under MCR 2.116(C)(10), arguing that, because plaintiff was an independent contractor at the time he suffered his injuries, his personal automobile insurer, Auto Club, was the highest-priority no-fault insurer pursuant to MCL 500.3114(1) and (3). In support of this position, Cherokee relied heavily on this Court’s opinion in Adanalic v. Harco Nat. Ins. Co., 309 Mich. App. 173, 870 N.W.2d 731 (2015), identifying Adanalic as the “controlling authority for independent contractor cases such as the case at bar.” In response, Auto Club argued that it was entitled to summary disposition, claiming that Cherokee was the highest-priority no-fault insurer pursuant to MCL 500.3114(3) because, regardless of whether plaintiff was an independent contractor, plaintiff was an employee of himself and the owner of the truck. Auto Club contended that Celina Mut. Ins. Co. v. Lake States Ins. Co., 452 Mich. 84, 549 N.W.2d 834 (1996), and Besic v. Citizens Ins. Co. of the Midwest, 290 Mich. App. 19, 800 N.W.2d 93 (2010), rather than Adanalic, controlled the outcome of this priority dispute.

The trial court relied on the economic reality test and determined that plaintiff was acting as an independent contractor at the time he sustained his injuries. The trial court therefore concluded that he was not an employee, so his personal insurer, Auto Club, was the no-fault insurer of highest priority. As a result, the trial court granted Cherokee’s motion for summary disposition. Ostensibly, the instant appeal focuses on whether this case is controlled by Adanalic or by Celina and Besic. However, as will be discussed, we conclude that those three cases may be harmonized instead of shoehorning any of them to “control” over the others.

II. STANDARD OF REVIEW
*2 A trial court’s decision to grant or deny summary disposition is reviewed de novo. Ter Beek v. City of Wyoming, 495 Mich. 1, 8, 846 N.W.2d 531 (2014). Summary disposition is appropriate pursuant to MCR 2.116(C)(10) where there is “no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). When reviewing a motion for summary disposition under MCR 2.116(C)(10), the court considers the affidavits, pleadings, depositions, admissions, and other admissible documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(4), (G)(5); Puetz v. Spectrum Health Hosps, 324 Mich. App. 51, 68, 919 N.W.2d 439 (2018).

Michigan’s appellate courts also review a trial court’s interpretation and application of the no-fault act de novo. Agnone v. Home-Owners Ins. Co., 310 Mich. App. 522, 526, 871 N.W.2d 732 (2015). When interpreting and applying a statute, a court’s primary goal is to ascertain and give effect to the Legislature’s intent. Frierson v. W. Am. Ins. Co., 261 Mich. App. 732, 734, 683 N.W.2d 695 (2004). In doing so, courts look first to the language of the statute itself. Id. If the statute is clear and unambiguous, it must be enforced as written, and judicial construction is neither necessary nor permissible. Id. However, Michigan’s appellate courts have recognized that “[t]erms contained in the no-fault act are read in the light of its legislative history and in the context of the no-fault act as a whole.” Id. (citations and quotations omitted). Moreover, “[g]iven the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries.” Id. (quotation omitted). “Further, courts should not abandon common sense when construing a statute.” Id. (quotation omitted).

III. LEGAL BACKDROP
“Michigan’s no-fault act generally abolishes tort liability arising from the ownership, maintenance, or use of a motor vehicle.” Grange Ins. Co. of Mich. v. Lawrence, 494 Mich. 475, 490, 835 N.W.2d 363 (2013). “Instead, insurance companies are required to provide first party insurance benefits for accidental bodily injury arising out of the use of a motor vehicle, which are commonly referred to as personal protection insurance (PIP) benefits.” Id. “The basic purpose of no-fault is to ensure the compensation of persons injured in automobile accidents.” Hill v. Aetna Life & Cas. Co., 79 Mich. App. 725, 728, 263 N.W.2d 27 (1977). Thus, in general, “PIP coverage applies to the insured person, and not to the motor vehicle.” Amerisure Ins. Co. v. Coleman, 274 Mich. App. 432, 438, 733 N.W.2d 93 (2007) (quotation omitted). It is possible for more than one insurer to be responsible for payment of benefits to a particular individual. However, persons are generally not entitled to a double recovery from multiple policies unless the person’s injuries exceed policy limits. Beaver v. Auto-Owners Ins. Co., 93 Mich. App. 399, 401-403, 286 N.W.2d 884 (1979). In the event multiple insurers might be responsible, the relative priority of those insurers is determined by MCL 500.3114(1). Corwin v. DaimlerChrysler Ins., 296 Mich. App. 242, 254-255, 819 N.W.2d 68 (2012). “[T]he general rule is that one looks to a person’s own insurer for no-fault benefits unless one of the statutory exceptions, [MCL 500.3114(2), (3), and (5)], applies.” Parks v. Detroit Auto. Inter-Ins. Exch., 426 Mich. 191, 202-203, 393 N.W.2d 833 (1986).

There is no dispute that Auto Club is plaintiff’s “own insurer,” so Auto Club is by default the insurer of first priority. There is also no dispute that Cherokee insured the motor vehicle at issue. Consequently, only one statutory exception could potentially apply:
*3 An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle. [MCL 500.3114(3).]
Pursuant to MCL 500.3101(3)(l)(i) and (iii), an “owner” of a motor vehicle can include either an entity leasing the vehicle or an entity holding legal title to the vehicle, or both.1 Plaintiff, as the title holder, did not lose his status as an “owner” under the no-fault act by leasing it to Universal. See Besic, 290 Mich. App. at 21-22, 32, 800 N.W.2d 93. Consequently, both plaintiff and Universal were “owners” of the truck at the time of the injury. The outcome of this matter turns on whether plaintiff was an “employee” within the meaning of MCL 500.3114(3). The no-fault act does not expressly define “employer” or “employee.”

IV. ANALYSIS
This Court has long held that the economic-reality test provides the appropriate framework for determining whether an individual is an employee or an independent contractor under Michigan’s no-fault act. See, e.g., Parham v. Preferred Risk Mut. Ins. Co., 124 Mich. App. 618, 624, 335 N.W.2d 106 (1983). The trial court properly applied the economic reality test and determined that at the time of the injury, “plaintiff was operating as an independent contractor and not an employee.” Auto Club does not challenge that finding. Cherokee thus argues generally that plaintiff simply cannot be an employee because he is an independent contractor. In contrast, Auto Club argues that plaintiff was nevertheless an “employee” for purposes of MCL 500.3114(3) because he was self-employed and occupying a vehicle that he owned at the time of his injuries. We agree with Auto Club.

As an initial matter, it is clear from context that the trial court only analyzed whether plaintiff was an independent contractor or employee of Universal. The trial court properly relied on the economic reality test to make that finding. However, the trial court erred in concluding that plaintiff, who was also an owner of the truck, was therefore not also an employee of himself. This Court has already resolved that issue under similar circumstances, albeit in an unpublished opinion signed by two members of this panel. Unpublished opinions of this Court are not binding. MCR 7.215(C)(1); MCR 7.215(J)(1). Nevertheless, unpublished opinions may be considered persuasive, especially where the unpublished case involves similar facts or where little published authority exists on point. See Cox v. Hartman, 322 Mich. App. 292, 307-308, 911 N.W.2d 219 (2017). We find little published authority tending to resolve what we now believe is a troublesome and recurring issue: a superficial conflict between two cases from this Court and one case from our Supreme Court: Celina, Besic, and Adanalic. We have, however, harmonized those cases in a prior unpublished opinion.

Therefore, we now expressly reaffirm and adopt our prior resolution of this issue in Sappington v. Shoemake, unpublished per curiam opinion of the Court of Appeals, issued October 30, 2018 (Docket No. 337994) 2018 WL 5631444, as follows:
*4 Our Supreme Court has unambiguously established that a person can simultaneously be both an employer and an employee under the no-fault act. Celina[ ], 452 Mich. [at] 87-90 [549 N.W.2d 834][ ]. In particular, someone who is self-employed is an employee of himself. Id. This Court further explained that a person can be a self-employed independent contractor and retain the status of both employer and employee. Besic, 290 Mich. App. at 31-32 [800 N.W.2d 93]. Both cases are holdings as a matter of law: if a person is self-employed, that person is necessarily both employer and employee for purposes of MCL 500.3114(3). Therefore, if [plaintiff] is an independent contractor of [Universal], then [plaintiff] is necessarily an employee of himself.
Cherokee correctly observes that “[a]n independent contractor is not considered an ‘employee’ for purposes of the no-fault act.” Adanalic[ ], 309 Mich. App. [at] 191 [870 N.W.2d 731][ ]. However, Adanalic clearly addressed only whether a person could simultaneously be an employee and an independent contractor of the same entity at the same time. Furthermore, Adanalic is consistent with Celina and Besic. In the latter cases, the injured parties owned the vehicles in which they were injured. Celina, 452 Mich. at 86 [549 N.W.2d 834]; Besic, 290 Mich. App. at 21 [800 N.W.2d 93]. In Adanalic, the injured party owned a truck, but his injuries involved his occupancy of a semi-trailer that he did not own. Adanalic, 309 Mich. App. at 177-178 [870 N.W.2d 731]. In all three cases, the courts were called upon to determine whether an owner of the occupied vehicle employed the injured party. Because the injured party in Adanalic did not own the vehicle in which he was injured, his self-employment status was irrelevant.
If [plaintiff] was an independent contractor of [Universal], Adanalic only establishes that [plaintiff] was not an employee of [Universal]. Binding case law rejects Cherokee’s argument that [plaintiff]’s status as an independent contractor necessarily precludes him from being an employee of anyone. [Id., unpub. at 3-4 (emphasis in original).]
As we discussed in Sappington above, all three cases operate in perfect harmony. Therefore, we reject Cherokee’s argument that an independent contractor of one entity cannot simultaneously be an employee of another entity, including himself.

We additionally observe that Cherokee’s argument would seemingly result in the curious conclusion that an independent contractor is somehow unemployed; because, at least in some contexts, being an “independent contractor” means that one is self-employed.2 Furthermore, it appears to us that the Legislature intended, by enacting MCL 500.3114(3), to shift the burden of providing PIP benefits to the insurers of vehicles in certain commercial contexts, probably because those insurers will be in a better position to evaluate the risks against which they are insuring. See Celina, 452 Mich. at 89, 549 N.W.2d 834. We may not depart from the literal language of an unambiguous statute, but if any construction is necessary—such as determining the meaning of an undefined word—we should strive “to prevent absurd results, injustice, or prejudice to the public interest.” Rafferty v. Markovitz, 461 Mich. 265, 270, 602 N.W.2d 367 (1999); see also Frierson, 261 Mich. App. at 734, 683 N.W.2d 695. If the case law had left any doubt, we would therefore resolve that doubt in favor of deeming the insurer of the commercial vehicle to have a higher priority.

V. CONCLUSION
*5 As we concluded in Sappington, there is no need to determine which of Celina, Besic, and Adanalic “controls” over the others, because all three cases can be harmonized. A person cannot be an employee and independent contractor of the same entity at the same time. However, being an independent contractor of one entity does not preclude a person from simultaneously being an employee of another entity, which can include one’s self.3 On these facts, plaintiff was not an employee of Universal, but he was an employee of himself. Because plaintiff also “owned” the vehicle, MCL 500.3114(3) applies. Because Cherokee insured the vehicle, it is the insurer of highest priority. The trial court’s order denying summary disposition to Auto Club and granting summary disposition in favor of Cherokee is reversed, and the matter is remanded for any further proceedings the trial court deems necessary or proper. We do not retain jurisdiction. Auto Club, being the prevailing party, may tax costs. MCR 7.219(A).

K. F. Kelly. (dissenting).

I respectfully dissent. Because I conclude that Auto Club Insurance Association (Auto Club) was the highest-priority no-fault insurer for purposes of plaintiff’s claim for personal protection insurance (PIP) benefits under Michigan’s no-fault act, MCL 500.3101 et seq., I would affirm.

The applicable facts and standard of review are delineated in the majority opinion. Briefly, plaintiff was injured when he slipped and fell while trying to put antifreeze in his 2000 Volvo tractor (the truck). Plaintiff owned the truck, but it was leased by Universal Am-Can, Ltd. (Universal), and he provided driving services to Universal through an independent contractor agreement. Plaintiff maintained personal automobile insurance through Auto Club, and Universal maintained business automobile insurance through Cherokee Insurance Company (Cherokee). Plaintiff attempted to obtain PIP benefits from Auto Club, Cherokee, and defendant Michigan Assigned Claims Plan, but was denied benefits. He then filed this lawsuit, seeking a determination regarding the insurer highest in priority for purposes of his claim for PIP benefits.

In Michigan, MCL 500.3114(1) sets forth the general rule to determine the Michigan insurer responsible for providing PIP benefits. Grange Ins. Co. of Mich. v. Lawrence, 494 Mich. 475, 490, 835 N.W.2d 363 (2013). By its terms, MCL 500.3114(1), states in relevant part, that “a personal protection insurance policy … applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.” MCL 500.3114(1). Thus, the no-fault insurance policy secured by the injured person’s household is first in order of priority for payment of no-fault benefits. Corwin v. DaimlerChrysler Ins., 296 Mich. App. 242, 255, 819 N.W.2d 68 (2012). “[I]t is the policy of the no-fault act that persons, not motor vehicles, are insured against loss.” Lee v. Detroit Auto. Inter-Ins. Exch., 412 Mich. 505, 509, 315 N.W.2d 413 (1982). Accordingly, a personal insurer of an injured claimant may be liable for benefits despite the fact that it has written no coverage respecting any vehicle involved in the accident and indeed that no vehicle involved in the accident has any coverage whatever. This requirement, that the insurer of a personal vehicle must provide benefits regardless of whether the insured vehicle is involved in the accident, remains applicable. Corwin, 296 Mich. App. at 255, 819 N.W.2d 68.

In MCL 500.3114(3), however, there is an employee exception to that general rule:
An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
To determine priority, one must examine whether plaintiff was an “employee” for purposes of MCL 500.3114(3) such that Cherokee would be responsible for payment of PIP benefits as, “the insurer of the furnished vehicle,” rather than Auto Club, plaintiff’s personal automobile insurer under MCL 500.3114(1).

*6 The economic-reality test provides the appropriate framework for determining whether an individual is an employee or an independent contractor under Michigan’s no-fault act. Parham v. Preferred Risk Mut. Ins. Co., 124 Mich. App. 618, 624, 335 N.W.2d 106 (1983). However, Auto Club concedes that plaintiff was Universal’s independent contractor, not its employee. Despite that concession, Auto Club argues that plaintiff was an “employee” for purposes of MCL 500.3114(3) for the simple reason that he was self-employed and occupying a vehicle that he owned at the time of his injuries.

With respect to that argument, the trial court concluded that the outcome of this case was controlled by Adanalic v. Harco Nat. Ins. Co., 309 Mich. App. 173, 870 N.W.2d 731 (2015). In Adanalic, the plaintiff, who “had contracted with DIS Transportation [DIS] to pick up, haul, and deliver various loads of cargo,” “was seriously injured while unloading a pallet from a disabled box truck onto a semitrailer,” both of which were owned by DIS. Id. at 177, 870 N.W.2d 731. When the plaintiff sought PIP benefits, a dispute arose as to which automobile insurer was liable for these benefits: Harco National Insurance Company, DIS’s business automobile insurer, or Michigan Millers Mutual Insurance Company (Millers), the plaintiff’s personal automobile insurer. Id. The trial court determined that Millers, the plaintiff’s personal automobile insurer, was the highest-priority no-fault insurer. Id. at 178, 870 N.W.2d 731.

In reaching that decision, the trial court emphasized the following aspects of the relationship between the plaintiff and DIS: (1) the contract between the plaintiff and DIS identified him as an independent contractor, (2) the plaintiff “had the right to decline to haul any load offered by DIS” and “this was the actual practice between the parties,” (3) although their agreement “state[d] that DIS compensated [the plaintiff] based on a percentage of the loads he delivered,” the plaintiff “was responsible for withholding all taxes and for workers compensation insurance,” (4) their agreement “was terminable at will by either party,” and (5) “the performance of the plaintiff’s duties were not an integral part of DIS’ business.” Adanalic, 309 Mich. App. at 191-192, 870 N.W.2d 731. Based on these considerations, the trial court concluded that the plaintiff “was an independent contractor, not an employee” for purposes of MCL 500.3114(3). Id. at 192, 870 N.W.2d 731.

This Court affirmed that decision by determining that, “[f]or purposes of MCL 500.3114(3), whether an injured party was an ‘employee’ is determined by applying the ‘economic reality test.’ ” Adanalic, 309 Mich. App. at 190-191, 870 N.W.2d 731. The economic-reality test weighs several factors, this Court recognized, including “(a) control of the worker’s duties, (b) payment of wages, (c) right to hire, fire and discipline, and (d) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.” Id. at 191, 870 N.W.2d 731 (citation and internal quotation marks omitted). Nevertheless, this Court explained, “[a]n independent contractor is not considered an ‘employee’ for purposes of the no-fault act.” Id., citing Citizens Ins. Co. of America v. Auto. Club Ins. Ass’n, 179 Mich. App. 461, 465, 446 N.W.2d 482 (1989). Because it “h[e]ld that the trial court did not err by finding that, for purposes of the no-fault act, [the plaintiff] was an independent contractor, not an employee, of DIS,” this Court concluded that “the trial court did not err by ruling that Millers, as [the plaintiff’s] no-fault insurer, was responsible for payment of his PIP benefits.” Id. at 194, 870 N.W.2d 731.

*7 As Cherokee contends, and the trial court concluded, Adanalic is on point. Like the injured person in that case, plaintiff was performing truck-driving services under an independent-contractor agreement. Similar to the factual scenario in Adanalic, plaintiff testified that he was paid “[a] percentage” of each shipment, not by the hour; received 1099s, not W2s; paid for the truck’s registration, fuel, repairs, and “everything” else himself; had the right to refuse loads; and chose his own routes to make deliveries. As a result, pursuant to Adanalic, plaintiff was an independent contractor, not an employee, for purposes of MCL 500.3114(3).

Auto Club contends, however, that Adanalic is distinguishable “because the injured person in that case did not own the trailer involved in the accident.” “Stated another way,” Auto Club claims, “Adanalic did not involve a self-employed person who was injured while occupying a business vehicle he owned.” Auto Club argues that Celina Mut. Ins. Co. v. Lake States Ins. Co., 452 Mich. 84, 549 N.W.2d 834 (1996), and Besic v. Citizens Ins. Co. of the Midwest, 290 Mich. App. 19, 800 N.W.2d 93 (2010), control because those cases added an additional legal inquiry to the determination of whether an injured person was an independent contractor: whether the injured person was also self-employed and occupying an owned business vehicle.

In Celina, Robert Rood was injured while driving a wrecker owned by his own towing company, Rood’s Wrecker & Mobile Home Service. Celina Mut. Ins. Co., 452 Mich. at 86, 549 N.W.2d 834. Celina Mutual Insurance Company (Celina), Rood’s Wrecker & Mobile Home Service’s business automobile insurer, paid Rood’s claim for PIP benefits but also filed suit against Lake States Insurance Company, Rood’s personal automobile insurer, alleging that it was the highest-priority no-fault insurer. Id. The trial court concluded that MCL 500.3114(3) applied to Rood because he was an “employee” of Rood’s Wrecker & Mobile Home Service despite it being his own business. Id. at 85, 549 N.W.2d 834. Therefore, the trial court held, Celina, as the insurer of the vehicle involved in the accident, was the highest-priority insurer. Id. Although this Court reversed, “concluding that a sole proprietor was not an ‘employee’ for the purpose of § 3114(3),” the Supreme Court reversed and reinstated the trial court’s decision. Id. at 85-86, 549 N.W.2d 834.

According to the Supreme Court, its decision was “most consistent with the purposes of the no-fault statute to apply § 3114(3) in the case of injuries to a self-employed person.” Celina Mut. Ins. Co., 452 Mich. at 89, 549 N.W.2d 834. The Court explained: “The cases interpreting that section have given it a broad reading designed to allocate the cost of injuries resulting from use of business vehicles to the business involved through the premiums it pays for insurance.” Id.1 Conversely, the Court continued, the Court of Appeals’ analysis relied too heavily “on cases involving worker’s compensation statutes which have held that a sole proprietor is not an ‘employee’ ” and “were enacted for the protection of both employees and employers.” Id. at 90, 549 N.W.2d 834. The no-fault act, on the other hand, “has no such restrictive definition of ‘employee’ ” and achieves its “goals … by including self-employed persons within the purview of § 3114(3).” Id.

*8 This Court deemed Celina’s analysis controlling in Besic several years later. In that case, after quoting the Supreme Court’s analysis, this Court held that Celina mandated that MCL 500.3114(3) apply even though the plaintiff was a self-employed independent contractor rather than an employee. The Court stated:
Besic owned the truck and worked as a self-employed independent contractor for MGR. Consistently with the Michigan Supreme Court’s analysis in Celina, 452 Mich. at 89 [549 N.W.2d 834], the priority language in MCL 500.3114(3) extends to the self-employment situation of Besic.
* * *
Because MCL 500.3114(3) applies to the undisputed facts of this case, it dictates that Besic “shall receive personal protection insurance benefits to which [he] is entitled from the insurer of the furnished vehicle.” In light of the fact that only Clearwater [Insurance Company] extended PIP benefits to the truck involved in Besic’s accident, it has first priority to pay Besic’s first-party benefits. [Besic, 290 Mich. App. at 32, 800 N.W.2d 93.]
In reaching that decision, this Court expressly rejected arguments regarding a lack of evidence as to who Besic’s purported “employer” was for purposes of the statute. Id. at 33, 800 N.W.2d 93.

While our Supreme Court’s opinion in Celina and this Court’s opinion in Besic are closely related to the circumstances presented here, Adanalic still controls. While Adanalic stands for the proposition that the injured party must seek payment of PIP benefits from its personal no-fault insurer when deemed to be an independent contractor, Celina and Besic stand for the proposition that the injured party must seek payment of PIP benefits from the insurer of the vehicle if the person is self-employed and if the person is acting on behalf of his or her business at the time the accident occurs. But if an injured party is deemed to be an independent contractor under the economic-reality test, the question becomes whether he was acting on behalf of his business at the time of the injury.

Here, while plaintiff was self-employed, he was acting on behalf of Universal, the trucking company he worked for as an independent contractor, not himself as an employer. Consequently, Celina and Besic are not directly on point. Instead, because plaintiff was undisputedly an independent contractor—Auto Club expressly concedes that point on appeal—at the time he sustained his injuries, and was acting on behalf of Universal, MCL 500.3114(3) does not apply. Although there are circumstances that distinguish this case from Adanalic as well, including differences regarding the ownership of the truck involved, it is my view that the injured person’s personal automobile insurer is responsible for PIP benefits if the person is an independent contractor alone, but the insurer of the vehicle involved is responsible if the person is self-employed and acting on behalf of his or her own self-employment, as this outcome appears most consistent with Adanalic, Celina, Besic, and the statutory language at issue. Moreover, I reject Auto Club’s contention that Celina and Besic added an additional legal inquiry to the independent contractor determination. The plain language of MCL 500.3114(3) contains no such requirement.

*9 Because I conclude that the trial court properly determined that plaintiff was not an “employee” for purposes of MCL 500.3114(3), I would hold that the trial court correctly identified Auto Club, not Cherokee, as the highest-priority no-fault insurer for purposes of plaintiff’s claim for PIP benefits. Therefore, I would affirm.

All Citations
— N.W.2d —-, 2020 WL 5580140

Footnotes

1
We recognize that the word “leasing” could, in the absence of further context, be construed as referring either to the lessor or the lessee. When the statute is read as a whole, however, it clearly refers to a lessee.

2
For example, the Internal Revenue Service takes the position that being an independent contractor means that one is self-employed. See < https://www.irs.gov/businesses/small-businesses-selfemployed/independent-contractor-defined >.

3
See footnote 2.

1
The Celina Court expressly held that the act was designed to allocate the cost to the business for the premium it pays for the vehicle. However, there is no definition of employee in MCL 500.3114(3). Consequently, businesses have hired owners of tractor-trailers as independent contractors and leased the owner’s vehicle. Thus, the characterization of this employment relationship, despite the business lease of the vehicle, effectively allows the business to avoid payment for PIP benefits and place the burden on the independent contractor’s personal insurer, a result that was not intended.