Keith Bronner v. City of Detroit

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

BRONNER v DETROIT

Docket No. 160242. Argued on application for leave to appeal January 7, 2021. Decided
May 27, 2021.

Keith Bronner sued the City of Detroit in the Wayne Circuit Court seeking no-fault
benefits. Bronner was a passenger on a city-operated bus when the bus was involved in an accident
with a garbage truck operated by GFL Environmental USA Inc. The city self-insured its buses
under MCL 500.3101(5) of the no-fault act, MCL 500.3101 et seq. Under the city’s contract with
GFL, GFL agreed to indemnify the city against any liabilities or other expenses incurred by or
asserted against the city because of a negligent or tortious act or omission attributable to GFL.
Following the accident, Bronner initially filed a claim with the city for personal protection
insurance (PIP) benefits under MCL 500.3107. The city paid Bronner about $58,000 in benefits
before the relationship broke down and Bronner sued the city. Shortly after Bronner sued the city,
the city filed a third-party complaint against GFL pursuant to the indemnification agreement in
their contract. GFL moved for summary disposition, arguing that the city was attempting to
improperly shift its burden under the no-fault act to GFL contrary to public policy. The circuit
court, Edward Ewell, Jr., J., denied GFL’s motion and granted summary disposition for the city.
The city later reached a settlement with Bronner, and the trial court ordered GFL to pay the city
$107,529.29 to cover the PIP benefits the city had paid and certain other expenses. GFL appealed
as of right, arguing that the indemnification agreement was void because it circumvented the no-
fault act. The Court of Appeals, MURRAY, C.J., and RIORDAN and CAMERON, JJ., agreed with
GFL and reversed in an unpublished opinion, citing the comprehensive nature of the no-fault act
and concluding that the act outlined the only mechanisms by which a no-fault insurer could recover
the cost of benefits paid to beneficiaries. The city filed an application for leave to appeal in the
Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the
application for leave to appeal or take other action. 505 Mich 1139 (2020).

In an opinion by Justice CLEMENT, joined by Chief Justice MCCORMACK and Justices
ZAHRA, BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court, in lieu of granting leave to
appeal, held:

An agreement between an insurer and a vendor that requires the vendor to reimburse the
insurer for the cost of mandatory benefits the insurer had to pay out as a result of the vendor’s
negligence is not void as contrary to the no-fault act because such an agreement does not relate to
the availability of applicable insurance or the payment of benefits.

1. The general rule of contracts is that when voluntarily and fairly made by competent
persons they shall be held valid and enforceable in the courts. However, when there are definite
indications in the law that a contractual provision conflicts with public policy, the contractual
provision must yield to the public policy. In this case, the Insurance Code, MCL 500.100 et seq.,
did not expressly prohibit the parties’ indemnification agreement. Nonetheless, the Court of
Appeals panel construed the indemnification provision as a variation on contractual provisions that
purport to shift liability for payment of no-fault benefits in a manner that does not comport with
the no-fault act and that the Supreme Court has struck down in previous cases. For instance, in
Citizens Ins Co of America v Federated Mut Ins Co, 448 Mich 225 (1995), the Supreme Court held
that a car dealership could not unilaterally shift liability for no-fault benefits to fully insured
borrowers of loaner vehicles because doing so violated MCL 500.3101(1), which requires the
owner of a vehicle to maintain security for residual liability insurance. And in State Farm Mut
Auto Ins Co v Enterprise Leasing Co, 452 Mich 25 (1996), the Court held that when a vehicle was
rented, the lessor of the vehicle could not enforce a lease condition that shifted responsibility to
the lessee’s no-fault insurer to provide mandatory benefits in the event of an accident. In Universal
Underwriters Ins Co v Kneeland, 464 Mich 491 (2001), on the other hand, the Court upheld a
contract provision obligating a customer who borrowed a vehicle from a car dealership to assume
all responsibility for damages sustained by the vehicle while it was in her possession. The Court
held that the contract in Kneeland sought nonmandatory collision coverage and, therefore, the
contract provision did not improperly shift damages that were not legally able to be reallocated
under the Insurance Code. The Court of Appeals panel concluded in this case that under Kneeland,
the existence in the no-fault act of various reimbursement mechanisms for no-fault insurers
implicitly precluded the enforceability of the indemnification agreement. However, this analysis
failed to consider Kneeland in the context of Citizens Ins Co and State Farm. This context was
demonstrated by the Court’s decision in Cruz v State Farm Mut Auto Ins Co, 466 Mich 588 (2002).
In Cruz, the insurance policy made payment of no-fault benefits contingent on the injured person
submitting to an examination under oath, which potentially conflicted with the Insurance Code’s
requirement that no-fault insurers pay benefits within 30 days of receiving proof of fact and the
amount of the loss. The Court in Cruz sought to harmonize the contract provision with the
Insurance Code, holding that examinations under oath were permissible when used to facilitate the
goals of the no-fault act and when harmonious with the no-fault insurance regime. When Citizens
Ins Co, State Farm, Kneeland, and Cruz are read together, it is apparent that the comprehensive
nature of the Insurance Code’s regulation of no-fault insurance serves to ensure that there is
applicable insurance for accidents and that benefits are paid. The indemnification provision in this
case did not implicate the same concerns as the provision in Cruz; in order to do so, a contractual
provision must, at minimum, relate to the insurance of motor vehicles or the payment of benefits
resulting from motor vehicle accidents. The indemnification agreement did neither and so did not
jeopardize the availability of applicable insurance or the payment of mandatory benefits. As a
result, no improper shifting of liability contemplated by Kneeland was implicated in this case.

2. The Court of Appeals misconstrued provisions of the Insurance Code that permit no-
fault insurers to seek reimbursement for payment of some benefits as implicitly excluding any
other reimbursement mechanism, such as the indemnification provision that was at issue in this
case. In doing so, the Court of Appeals effectively relied on the expressio unius est exclusio
alterius canon, that in stating some options, other options must not exist. The Court of Appeals
identified the Michigan Catastrophic Claims Association (MCCA), MCL 500.3104; the Michigan
Assigned Claims Plan (MACP), MCL 500.3171; and MCL 500.3116, which allows insurers to
impose a lien on tort damages recovered by some no-fault beneficiaries, as the exclusive
reimbursement opportunities for no-fault insurers under the act. Rather than representing the
exclusive means for reimbursements, these statutory provisions respond to specific problems,
unrelated to the issue that was presented in this case. For instance, the purpose of the MCCA is to
spread the cost of catastrophic claims across all no-fault insurers in Michigan and to equalize
competitive imbalances between larger and smaller insurers. Rather than being a substitute for
reimbursement, it is effectively an entitlement for insurers. The MACP is a benefit to persons
injured in motor vehicle accidents who otherwise do not have applicable insurance benefits. In
other words, the MACP is a mechanism created by the Insurance Code through which the
Legislature carries out a scheme of general welfare by obliging insurers to act as insurers of last
resort for injured persons with whom the insurer does not have an existing insurance relationship.
This does not affect an insurer’s ability to freely enter into contracts with vendors that may include
indemnification provisions. Finally, MCL 500.3116 allows an insurer to recover from its
beneficiaries by reducing PIP benefits to the extent that the insured has received equivalent
compensation from tort judgments arising from out-of-state accidents, accidents with uninsured
motorists, and from intentionally caused harm. MCL 500.3116 does not prevent an insurer from
contracting with a vendor to reach an indemnity agreement. In Cruz, the Court observed that the
provision of some discovery tools in the no-fault act did not necessarily preclude the parties from
contracting for the use of other discovery tools, such as examinations under oath. Similarly, the
no-fault act’s reimbursement options are not comprehensive and do not preclude parties from
contracting for other reimbursement methods. In this case, the indemnification agreement did not
relate to the insurance of motor vehicles or the payment of benefits resulting from accidents
involving motor vehicles, did not alter the relationship between the insurer and its insured or
beneficiaries, and did not transform the nature of benefits paid by the insurer to beneficiaries into
something else. It therefore did not conflict with the Insurance Code.

Reversed.

Justice VIVIANO, concurring, agreed with the result reached by the majority for many but
not all of the reasons stated in that opinion and wrote separately to highlight the issue of the
appropriate analytical framework for addressing whether the no-fault act precluded enforcement
of the indemnification agreement and his conclusion that the majority opinion relied too heavily
on ascertaining the broad purposes of the no-fault act. The core issue was whether the parties’
contractual indemnification agreement was unenforceable because it violated public policy as
represented by the no-fault act. Justice VIVIANO noted that caselaw contained various standards
for determining whether certain provisions of the no-fault act had abrogated the common law;
some cases held that the intent to abrogate must be clearly stated in the statute, while others
indicated that the comprehensiveness of the statutory scheme can indicate abrogation (an approach
that resembles a field-preemption analysis). He stated that the majority adopted the latter
methodology in this case without expressly examining whether it was appropriate. Under a field-
preemption analysis, a court would examine whether the no-fault act has impliedly preempted
parties from contracting for indemnification via a provision like the one in this case. To the extent
that a field-preemption analysis was applicable in this case, Justice VIVIANO disagreed with the
manner in which the majority applied the analysis. He noted the ease with which extratextual
purpose can be impermissibly exalted above statutory text. In addition, choosing the correct field
is critical because defining the field at a certain level of generality becomes determinative. Justice
VIVIANO stated that it was therefore important for a court to stick to the text of the statute when
defining the field, and one way to do this is to recognize that a statute’s occupation of one area of
the law does not necessarily mean that it occupies adjacent areas as well. The majority
demonstrated this by examining the no-fault act’s few scattered provisions concerning
reimbursement, thereby showing that the statute did not occupy this area of the law and that the
indemnification agreement did not directly conflict with any provision in the act. Justice VIVIANO
would have allowed this analysis to dispose of the case without considering whether the
enforceability of the indemnification agreement turned on whether a court considered it to be
consistent with the broadly characterized goals of the no-fault act, i.e., regulating the insurance of
motor vehicles and requiring payment of benefits, or whether the agreement “implicated” or
“related to” these goals. The majority’s use of these statutory purposes further aggrandizes the
purposes the Court had attributed to the no-fault act in past cases and made it uncertain when a
contractual provision would be precluded from enforcement due to implicating or relating to the
statutory purposes.
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

FILED May 27, 2021

STATE OF MICHIGAN

SUPREME COURT

KEITH BRONNER,

Plaintiff,

and

ANGELS WITH WINGS TRANSPORT,
LLC,

Intervening Plaintiff,

v No. 160242

CITY OF DETROIT,

Defendant/Third-Party
Plaintiff-Appellant,

and

GFL ENVIRONMENTAL USA INC., f/k/a
RIZZO ENVIRONMENTAL SERVICES,
INC.,

Third-Party Defendant-
Appellee.
BEFORE THE ENTIRE BENCH

CLEMENT, J.
In this case, we consider whether a no-fault insurer—or, as here, a self-insurer—

may legally contract with a vendor for indemnification of the no-fault insurer for the cost

of no-fault benefits that the insurer is obliged by law to pay when the vendor’s negligence

caused the injury for which the benefits are compensation. We conclude that such an

agreement is legal and reverse the contrary conclusion of the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

On September 25, 2014, Keith Bronner was a passenger on a bus operated by the

City of Detroit. The bus was in an accident with a garbage truck operated by GFL

Environmental USA Inc. 1 The city self-insures its fleet of buses under MCL 500.3101(5), 2

and Bronner consequently made a claim with the city for personal protection insurance

(PIP) benefits under MCL 500.3107. The city initially paid about $58,000 in benefits to

Bronner; but eventually the relationship broke down, and Bronner sued the city in

September 2015.

GFL’s garbage truck was operating under a contract that GFL had signed with the

city in February 2014. Section 9.01(a) of that agreement provided that GFL

agree[d] to indemnify, defend, and hold the City harmless against and from
any and all liabilities, obligations, damages, penalties, claims, costs, charges,
losses and expenses . . . that may be imposed upon, incurred by, or asserted

1
At the time of the accident, GFL was known as Rizzo Environmental Services, Inc.
2
At the time of these events, the relevant provision was found at MCL 500.3101(4); it was
renumbered with the enactment of 2019 PA 21. Because 2019 PA 21 does not affect this
dispute, references in this opinion are to the current version of the statute.

2
 against the City . . . to the extent caused by . . . [a]ny negligent or tortious
act, error, or omission attributable in whole or in part to [GFL] or any of its
Associates[.]

Shortly after Bronner sued the city, the city filed a third-party complaint against GFL,

invoking this indemnification agreement. In June 2016, GFL moved for summary

disposition, arguing that the city was “attempting to circumvent the explicit requirements

of the No-Fault Act[3] by improperly shifting its burden onto [GFL] through language found

in an unrelated service contract between Detroit and [GFL], which clearly violates public

policy and the legislative intent behind the No-Fault Statute.” The trial court denied this

motion and instead granted summary disposition in favor of the city. In February 2017,

the city reached a settlement with Bronner, and the trial court then ordered GFL to pay the

city $107,529.29 to cover the PIP benefits paid by the city, 4 plus certain other expenses.

In the Court of Appeals, GFL renewed its argument that the indemnification

agreement circumvented the Insurance Code’s 5 no-fault rules and was therefore void. The

Court of Appeals agreed and reversed in an unpublished opinion. 6 The Court of Appeals

panel emphasized the comprehensive nature of the no-fault system, which includes only a

few explicit mechanisms by which a no-fault insurer may recover the cost of benefits paid

3
MCL 500.3101 et seq.
4
This sum included both the city’s settlement with Bronner and its settlement with Angels
with Wings Transport, LLC, which had provided transportation services to Bronner and
intervened as a plaintiff to make its own recovery.
5
MCL 500.100 et seq.
6
Bronner v Detroit, unpublished per curiam opinion of the Court of Appeals, issued July 9,
2019 (Docket No. 340930).

3
out. The Court accepted the negative implication that, by stating these options in the no-

fault act, the Legislature had denied the availability of any other options. The panel

therefore concluded that the indemnification agreement was unenforceable. The city then

filed an application for leave to appeal in our Court, and we ordered argument on that

application. Bronner v Detroit, 505 Mich 1139 (2020).

II. STANDARD OF REVIEW

The question before the Court is not the meaning of the indemnification agreement

between the city and GFL as such. GFL’s argument in this Court does not concern the

proper interpretation of the parties’ contract, and GFL does not argue that the

indemnification sought by the city is beyond the scope of that contract. Rather, the question

is whether the Insurance Code precludes the contract provision at issue. In other words,

the question is whether the provision “runs afoul of the public policy of the state” in the

form of “the policies that . . . are reflected in . . . our statutes,” Terrien v Zwit, 467 Mich

56, 66-67; 648 NW2d 602 (2002), such as the Insurance Code. Whether a contract

provision is invalid on these grounds is a question of law subject to de novo review. Id. at

61. “This Court [also] reviews the grant or denial of summary disposition de novo to

determine if the moving party is entitled to judgment as a matter of law.” Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

III. ANALYSIS

We have held that “ ‘[t]he general rule [of contracts] is that competent persons shall

have the utmost liberty of contracting and that their agreements voluntarily and fairly made

shall be held valid and enforced in the courts.’ ” Terrien, 467 Mich at 71, quoting Twin

4
City Pipe Line Co v Harding Glass Co, 283 US 353, 356; 51 S Ct 476; 75 L Ed 1112

(1931). Of course, where there are “ ‘definite indications in the law’ ” of some contrary

public policy, Terrien, 467 Mich at 68, quoting Muschany v United States, 324 US 49, 66;

65 S Ct 442; 89 L Ed 744 (1945), the contract provision must yield to public policy. As

the Court of Appeals noted here, however, there is no provision of the Insurance Code

which expressly prohibits the sort of indemnification agreement at issue. Even so, the

Court of Appeals drew inferences from the comprehensive nature of the no-fault system

that we must assess.

No-fault insurance in Michigan is “a comprehensive scheme of compensation

designed to provide sure and speedy recovery of certain economic losses resulting from

motor vehicle accidents.” Belcher v Aetna Cas & Surety Co, 409 Mich 231, 240; 293

NW2d 594 (1980). “In general, where comprehensive legislation prescribes in detail a

course of conduct to pursue and the parties and things affected, and designates specific

limitations and exceptions, the Legislature will be found to have intended that the statute

supersede and replace the common law dealing with the subject matter.” Millross v Plum

Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987). Although Millross was a

case about the dramshop act, we have applied this same principle in the no-fault context.

In particular, the Court of Appeals drew upon our line of cases construing the

comprehensive nature of the no-fault law as prohibiting certain shifts of liability for no-

fault benefits to invalidate the indemnification agreement at issue.

The first case in this line is Citizens Ins Co of America v Federated Mut Ins Co, 448

Mich 225; 531 NW2d 138 (1995). In that case, a car dealership gave a customer a “loaner”

5
automobile while the dealership was working on the customer’s own vehicle. 7 The

customer was later in a serious accident. On appeal in this Court, the legal question was

which insurer was responsible under MCL 500.3131 to pay residual personal injury

benefits: the insurer of the car dealership (as the owner of the vehicle) or the customer (as

the operator of the vehicle). The insurance policy issued to the car dealership by its insurer

stated that the insurer would not consider as an “insured” anyone to whom the dealership

had loaned the vehicle unless that individual was uninsured or underinsured. We held that

the dealership’s insurer could not, in its policy, unilaterally shift liability for no-fault

benefits to fully insured borrowers of the dealership’s vehicle because it violated MCL

500.3101(1), which requires the owner of a vehicle to maintain security for residual

liability insurance. The policy exclusion was therefore void, and the dealership’s insurer

had to pay benefits.

We extended Citizens Ins Co in State Farm Mut Auto Ins Co v Enterprise Leasing

Co, 452 Mich 25; 549 NW2d 345 (1996). There, we held that when an automobile is rented

out, the lessor of the vehicle may not enforce a lease condition shifting responsibility to the

lessee’s no-fault insurer to provide mandatory no-fault benefits if an accident occurs—even

if the lessee agreed to this lease condition. Id. at 27-28, 35. We offered various reasons

for this conclusion, but one, which the Court of Appeals referred to here, was that the intent

of the no-fault system is to hold the owner rather than the operator of a vehicle primarily

7
The facts of Citizens appear in neither this Court’s opinion nor the majority opinion in
the Court of Appeals, but rather the dissenting opinion in the Court of Appeals. See
Citizens Ins Co v Federated Mut Ins Co, 199 Mich App 345, 348; 500 NW2d 773 (1993)
(NEFF, J., dissenting).

6
responsible for paying no-fault benefits, and it would subvert that intent to switch that

responsibility:

The driver cannot defeat the provisions of the no-fault act by stating
that the owner need not pay insurance. Because the driver cannot bind the
driver’s insurer, a driver who agreed to shift coverage would remain solely
liable for damages caused by use of the vehicle. The rental car would be left
uninsured under the terms of the rental agreement stating that the owner
provides no insurance. This lack of coverage violates the no-fault act. Even
though an injured party could attempt to obtain compensation from the
driver, the no-fault act is intended to protect injured parties from having to
pursue such suits. Even if the driver qualified as self-insured, we would not
allow the rental car companies to avoid the Legislature’s intent that a vehicle
owner be primarily responsible for providing coverage. Just as the car rental
company cannot shift liability to a driver’s insurer, it cannot shift liability to
a driver personally. Either shift of responsibility away from the owner would
violate the act because it requires owners to provide primary coverage. [Id.
at 35-36.]

On the other hand, we gestured toward a limit to the principle established in Citizens

Ins Co and State Farm in Universal Underwriters Ins Co v Kneeland, 464 Mich 491; 628

NW2d 491 (2001). In Kneeland, as in Citizens Ins Co, a car dealership loaned an

automobile to a customer while it was working on her vehicle. Id. at 493. The customer

signed an agreement when she borrowed the vehicle in which she “agree[d] to assume all

responsibility for damages while [the] vehicle [was] in h[er] possession.” Id. (emphasis

omitted). While she was driving the vehicle, she was in an accident causing more than

$3,700 in damage to the vehicle. Id. The dealership and its insurer paid for appropriate

repairs but then sued the customer to enforce the agreement she had made when she

borrowed the vehicle, seeking compensation for the cost of the repairs. Id. We expressed

concern that the term “damages” in the agreement “could refer to any harm caused to a

third party’s person or property, i.e., it could reach damages for which no-fault insurance

7
coverage is mandatory.” Id. at 496. Citing State Farm, we acknowledged that “[a] shift

of liability to that extent might contravene the no-fault act.” Id. at 496-497. That said,

what was sought under the contract in Kneeland was nonmandatory collision coverage,

which took Kneeland outside the rule from Citizens Ins Co and State Farm, and we

therefore concluded that “the contract thus does not shift liability for damages that may not

legally be reallocated.” Id. at 498.

The Court of Appeals panel here construed the indemnification provision at issue as

a variation on the sort of liability-shifting that these cases have prohibited. In particular, it

emphasized certain hedging language from our Kneeland opinion. 8 In interpreting the

word “damages,” which the vehicle borrower agreed to accept responsibility for in the

Kneeland contract, we observed that it could encompass mandatory no-fault benefits and,

citing State Farm, we noted that such a shift of liability might violate the Insurance Code.

Id. at 496-498. We stated:

We express no view regarding whether State Farm would control the
legality of the contract [in Kneeland]. Th[e] agreement and the one
addressed in State Farm are arguably different in scope and effect. We
merely observe that an argument is available that the parties’ agreement, if it
reaches beyond optional collision damages, is illegal. [Id. at 497 n 3.]

The Court of Appeals panel concluded that this left open whether benefits that the no-fault

law requires to be paid out could be shifted and that the existence of various reimbursement

8
See Bronner, unpub op at 5-6.

8
mechanisms for no-fault insurers under the statute implicitly precluded the enforceability

of an indemnification agreement such as the one at issue. 9

The Court of Appeals’ analysis of Kneeland is flawed, however, as it does not read

Kneeland in the context of Citizens Ins Co and State Farm, which came before Kneeland.

This is best demonstrated by reviewing Cruz v State Farm Mut Auto Ins Co, 466 Mich 588;

648 NW2d 591 (2002). The insurance policy in Cruz made payment of no-fault benefits

contingent on the injured person submitting to an “examination under oath” (EUO), id. at

590, and the question was whether this provision was compatible with the Insurance Code’s

requirement that no-fault insurers pay benefits “within 30 days after an insurer receives

reasonable proof of the fact and of the amount of loss sustained,” MCL 500.3142(2). See

Cruz, 466 Mich at 593-594, 596. Because “the no-fault act contains no reference either

allowing or prohibiting examinations under oath,” we had to “determine whether, given

this silence, the inclusion of examination under oath provisions in no-fault automobile

insurance policies is allowed.” Id. at 594. We held that the parties could not “contract out

of the statutory duty imposed on the insurer to pay benefits within thirty days of receipt of

the fact and of the amount of the loss sustained by agreeing that no benefits are due until

an EUO is given by the insured[.]” Id. at 595. Drawing on Kneeland, we sought to

harmonize the EUO requirement in Cruz with the Insurance Code and declined to hold that

EUOs intrinsically violate it. Instead, we held that EUOs are permissible “when used to

facilitate the goals of the [no-fault] act and when they are harmonious with the

Legislature’s no-fault insurance regime,” such as if they are “designed only to ensure that

9
Bronner, unpub op at 6.

9
the insurer is provided with information relating to proof of the fact and of the amount of

the loss sustained—i.e., the statutorily required information on the part of the insured.” Id.

at 598. As the insurer in Cruz conceded that it had been provided with the requisite

information without the EUO, we held that the contract provision requiring an EUO was

unenforceable on Cruz’s facts. Id. at 590 n 1, 600-601.

Cruz’s analysis offers critical insight into the nature of what the no-fault law

comprehensively regulates. It described the no-fault system as “a comprehensive

legislative enactment designed to regulate the insurance of motor vehicles in this state and

the payment of benefits resulting from accidents involving those motor vehicles.” Id. at

595 (emphasis added). When Citizens Ins Co, State Farm, Kneeland, and Cruz are read

together, it becomes apparent that the comprehensive nature of the Insurance Code’s

regulation of no-fault insurance functions to ensure that there is applicable insurance for

accidents and that benefits get paid. Citizens and State Farm both struck down agreements

that purported to rearrange which insurer had to pay benefits, while Cruz struck down a

policy provision that interfered with the payment of benefits. State Farm also noted that

agreements that purport to rearrange which insurer is supposed to pay benefits also run the

risk of leaving no insurer available to pay benefits. Meanwhile, Kneeland upheld an

agreement that did not relate to the payment of mandatory benefits.

The indemnification agreement at issue does not implicate the Cruz concerns. There

is no dispute that the bus was “insured” (inasmuch as the city had satisfied the Secretary

of State it could self-insure under MCL 500.3101(5)), and there is no dispute that the

benefits required by statute to be paid to Bronner and his caregivers were paid. Cruz clearly

acknowledges that the Insurance Code’s silence about a particular contractual provision

10
may pose interpretive challenges in the right circumstances; but to implicate Cruz’s

concern, the contractual provision must, at minimum, relate to the insurance of motor

vehicles or the payment of benefits resulting from motor vehicle accidents. This agreement

implicates neither, but rather requires a vendor to reimburse the insurer for the cost of

benefits compensating for an injury caused by the vendor’s negligence. Where, as here,

the agreement does not jeopardize the availability of applicable insurance or the payment

of mandatory benefits, it falls outside our anti-shifting rule. As a result, no improper shift

of liability as contemplated by Kneeland is implicated in this case, 10 because a vendor

reimbursing the insurer for the cost of mandatory benefits the vendor caused the insurer to

pay out does not relate to either the availability of insurance or the payment of benefits.

The Court of Appeals similarly misconstrued the portions of the Insurance Code

allowing no-fault insurers to seek reimbursement for payment of some benefits as

implicitly excluding any other reimbursement mechanism (such as the indemnification

provision at issue). It identified the Michigan Catastrophic Claims Association (the

MCCA), MCL 500.3104, the Michigan Assigned Claims Plan (the MACP), MCL

10
It is not clear in hindsight why we performed the textual analysis of the meaning of
“damages” in Kneeland to begin with. Even if the word “damages” could have been
understood to include mandatory no-fault benefits, all that was at issue in Kneeland were
nonmandatory collision benefits. Even if the Kneeland agreement had expressly stated that
the borrower of the vehicle was accepting liability for both mandatory no-fault benefits and
other nonmandatory damages, it is difficult to imagine we would have disallowed recovery
of the nonmandatory damages simply because the agreement improperly shifted liability
for mandatory benefits. We would presumably have construed the contract “to harmonize
[it] with the statute,” Cruz, 466 Mich at 599, and enforced it to the extent that it was
enforceable, but no further. This counsels further against overreliance on Kneeland.

11
500.3171, and the ability for no-fault insurers to impose a lien on tort damages recovered

by some no-fault beneficiaries, MCL 500.3116, as the stated reimbursement opportunities

for no-fault insurers under the Insurance Code. In other words, it effectively relied on the

negative-implication canon, expressio unius est exclusio alterius, 11 that in stating some

options, other options must not exist. However, this “doctrine properly applies only when

the unius (or technically, unum, the thing specified) can reasonably be thought to be an

expression of all that shares in the grant or prohibition involved.” Scalia & Garner,

Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 107.

“Common sense often suggests when this is or is not so,” id., and this is such a case: we

do not believe these options can be construed as “an expression of all that shares in the

grant” of avenues for reimbursement. Rather, each of them responds to specific problems

unrelated to the issue presented.

First, the MCCA “was created by the Legislature in 1978 in response to concerns

that Michigan’s no-fault law . . . placed too great a burden on insurers, particularly small

insurers, in the event of ‘catastrophic’ injury claims.” In re Certified Question, 433 Mich

710, 714; 449 NW2d 660 (1989). “Its primary purpose is to indemnify member insurers

for losses sustained as a result of the payment of personal protection insurance benefits

beyond the ‘catastrophic’ level . . . .” Id. at 714-715. The MCCA spreads the cost of these

catastrophic claims across all no-fault insurers in Michigan to equalize competitive

imbalances between larger and smaller insurers and make the amount of cash on hand

11
Expressio unius est exclusio alterius means “[e]xpress mention in a statute of one thing
implies the exclusion of other similar things.” Detroit v Redford Twp, 253 Mich 453, 456;
235 NW 217 (1931).

12
needed more predictable for insurers. See id. at 714 n 2. Rather than being a substitute for

reimbursement, it is, in effect, an entitlement for insurers—a cumulative remedy they enjoy

above and beyond any other opportunities they may have to recoup the cost of benefits

paid. 12

Second, the MACP is a benefit to persons injured in motor vehicle accidents who

otherwise do not have applicable insurance benefits. It imposes, by statute, the obligation

of providing no-fault benefits to persons injured in motor vehicle accidents if an applicable

no-fault policy cannot be identified, MCL 500.3172(1), on all no-fault insurers licensed to

do business in Michigan. In other words, the MACP obliges them to function as insurers

of last resort even as to some injured persons with whom the insurer does not have an

existing insurance relationship, making “insurance companies . . . the instruments through

which the Legislature carries out a scheme of general welfare.” Shavers v Attorney

General, 402 Mich 554, 597; 267 NW2d 72 (1978). That the Insurance Code creates a

mechanism in MCL 500.3385 by which insurers may pass on to their customers the cost

of benefits the insurers must pay out by statutory fiat does not derogate from the insurers’

12
Indeed, if the MCCA is merely “a set security meant to assist against certain
circumstances,” which is to say, “when the PIP amount contracted by the insurer exceeds
the statutory threshold,” United States Fidelity Ins & Guaranty Co v Mich Catastrophic
Claims Ass’n (On Rehearing), 484 Mich 1, 17-18; 795 NW2d 101 (2009), then the extent
of the MCCA’s obligation to its members may well be informed by the extent to which
those members might be able to recoup such costs. If the MCCA “shall
provide . . . indemnification for 100% of the amount of ultimate loss sustained under [PIP]
coverages in excess of” $580,000, MCL 500.3104(2)(o), then the degree to which insurers
can be indemnified for their PIP losses before looking to the MCCA may affect the size of
the “ultimate loss sustained.”

13
prerogative at common law to freely enter into contracts with vendors which may include

indemnification provisions.

Finally, the limited opportunity under MCL 500.3116 to recover certain benefits

paid out does not imply the inability of an insurer to reach an indemnity agreement with a

vendor. The statute allows “personal injury protection no-fault benefits [to] be reduced to

the extent the insured has received equivalent compensation from tort judgments arising

from accidents outside of the state, from accidents with uninsured motorists, and from

intentionally caused harm.” Tebo v Havlik, 418 Mich 350, 367; 343 NW2d 181 (1984). In

such cases, the insurer is reducing its liability to (or recovering from) its beneficiaries.

Section 3116 is, in effect, an exception that proves a rule: by providing a limited avenue

by which a no-fault insurer can offset its liability to its own beneficiary, it implicitly denies

other options at recovering from a beneficiary and confirms the no-fault system’s focus on

the relationship between insurers and their insureds and beneficiaries—not the relationship

between insurers and their vendors. 13

When we upheld the theoretical viability of EUOs in no-fault policies, we observed

that “[t]he discovery tools provided in the [no-fault law] are not comprehensive” and

13
Section 3116 may also address GFL’s concerns that a ruling in the city’s favor here could
validate other cost-recovery agreements that might be offensive to the no-fault system. A
reimbursement clause that effectively changed an insurer’s relationship with its insureds
or beneficiaries—such as an agreement that the insurer would pay out benefits but asserted
a right to subsequent reimbursement from the beneficiary—would presumably fall within
the comprehensive scope of the statute and not be permitted. Transforming insurance
benefits into the functional equivalent of a loan would change the character of the payments
being made. By allowing a limited ability to claw back benefits from a beneficiary, § 3116
could certainly be read as implicitly precluding other such arrangements.

14
rejected the argument that “the provision of some discovery tools by the act—tools that

address limited aspects of the insurer’s postclaim information needs—precludes the parties

from contracting for the use of other discovery tools including those such as EUOs that

enable insurers to directly gather information from the insured.” Cruz, 466 Mich at 598

n 14. Much the same can be said about the no-fault law’s reimbursement options. They

are not comprehensive, and the fact that they are offered does not preclude the parties from

contracting for other reimbursement methods. This is all the more apparent when the

indemnification agreement at issue does not relate to “the insurance of motor vehicles in

this state [or] the payment of benefits resulting from accidents involving those motor

vehicles.” Id. at 595. It does not alter the relationship between the insurer and its insured

or its beneficiaries, and it does not transform the nature of benefits paid by the insurer to

its beneficiaries into something else. It therefore does not conflict with the Insurance Code.

IV. CONCLUSION

GFL argues that the city should not be treated any differently than more traditional

no-fault insurers. We agree. If an ordinary insurance company reached an agreement with

the vendor it hired to plow its parking lot in the winter that the plower would reimburse the

insurer for accidents caused by the plower’s negligence, such an agreement would be

enforceable under today’s ruling. That the city has far more opportunities to reach such

agreements—and traditional insurers far fewer—is presumably offset by the fact that

insurers are in the business of issuing no-fault insurance, while the city is in the business

of providing a full panoply of municipal services and self-insures incidentally to that role.

Regardless of the differing opportunities for an insurer to reach an indemnification

15
agreement with a vendor, we conclude that such agreements are enforceable, and the

contrary decision of the Court of Appeals is reversed.

Elizabeth T. Clement
Bridget M. McCormack
Brian K. Zahra
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch

16
 STATE OF MICHIGAN

SUPREME COURT

KEITH BRONNER,

Plaintiff,

and

ANGELS WITH WINGS TRANSPORT,
LLC,

Intervening Plaintiff,

v No. 160242

CITY OF DETROIT,

Defendant/Third-Party
Plaintiff-Appellant,

and

GFL ENVIRONMENTAL USA INC., f/k/a
RIZZO ENVIRONMENTAL SERVICES,
INC.,
Third-Party Defendant-
Appellee.

VIVIANO, J. (concurring).
I agree with the result reached by the majority for many but not all of the reasons

given in its opinion. I write separately to again highlight one larger issue that has escaped

sustained attention in this area of the law: the appropriate analytical framework for

addressing the vendor’s claim that the no-fault act precludes enforcement of the contractual

indemnity provision at issue. See Meemic Ins Co v Fortson, 506 Mich 287, 300-301 n 7;
954 NW2d 115 (2020) (noting the unsettled state of the interpretive framework in this

area). Whatever approach we may decide to adopt in a future case, I believe the majority’s

approach here relies too heavily on ascertaining the statute’s broad purposes.

The core issue, as the majority states, is whether the parties’ contractual indemnity

agreement is unenforceable because it violates public policy as represented by the no-fault

act. In our most recent opinion addressing this general topic, we observed that our caselaw

contains various standards for determining whether the no-fault act, or various provisions

of it, has abrogated the common law and thereby precludes the parties from incorporating

certain common-law defenses in their insurance contracts. Id. at 300-301 n 7. Some of

our cases hold that the intent to abrogate must be clearly stated in the statute, whereas other

cases indicate that the comprehensiveness of the statutory scheme can indicate abrogation.

Id.

The majority today opts for the latter standard, which is how the case was argued

and decided below, although no one—including the majority—has expressly examined

whether this is the appropriate interpretive methodology for assessing this issue. In

adopting this approach, the majority’s framework resembles a field-preemption analysis

by asking whether the no-fault act has impliedly preempted parties from contracting for

indemnification. See generally Mich Gun Owners, Inc v Ann Arbor Pub Sch, 502 Mich

695, 702-708; 918 NW2d 756 (2018) (discussing preemption in general and field

preemption specifically). Some support exists for this approach. For example, we have

often used the term “preemption” when discussing abrogation. See, e.g., Kyser v Kasson

Twp, 486 Mich 514, 539; 786 NW2d 543 (2010). More directly, the Delaware Supreme

Court has held that because these concepts are so similar, a preemption-like analysis is

2
applicable to resolve questions of abrogation. See AW Fin Servs, SA v Empire Resources,

Inc, 981 A2d 1114, 1122 (Del, 2009) (“Although preemption and superseder [i.e.,

common-law abrogation] are analytically distinct concepts, they both involve the same

inquiry: has one body of law replaced another? For that reason, the preemption analytical

framework is a useful tool to conduct our analysis of whether the Escheat Statute has

superseded common law claims.”).

To the extent that a field-preemption analysis applies here—and I would take the

opportunity in a future case to more closely analyze this question—my only significant

disagreement with the majority is how it applied that analysis. It is difficult to determine

when a field has been impliedly preempted by a statute. Scalia & Garner, Reading Law:

The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), § 47 (discussing the

presumption against federal preemption of state law). At bottom, field preemption “is

really ‘a species of conflict preemption,’ ” in that it is triggered when a legal provision

trenches upon (i.e., conflicts with) a statute’s occupation of a field. Id., p 290, quoting

English v Gen Electric Co, 496 US 72, 79 n 5; 110 S Ct 2270; 110 L Ed 2d 65 (1990). That

a conflict lies at the heart of field preemption is important to keep in mind because it is

very easy for the field-preemption analysis to “exalt extratextual purpose above statutory

text.” Note, Preemption as Purposivism’s Last Refuge, 126 Harv L Rev 1056, 1057 (2013).

The reason is that “field preemption essentially impl[ies] additional statutory clauses

beyond the statute’s text, clauses that mandate preemption.” Id. at 1064. In addition,

“choosing the correct field definition” is difficult and critical because “[d]efining the field

at a certain level of generality becomes the entire game.” Id. at 1067.

3
 As a result, I believe it is important to stick to the text as much as possible when

defining the field. One way to do this is by recognizing that a statute’s occupation of one

area of the law does not necessarily mean that it occupies adjacent areas as well. Cf. AW

Fin Servs, 981 A2d at 1124 (“With one exception, the Escheat Statute does not impliedly

supersede other areas of the common law, because there is no ‘fair repugnance’ between

the statute and common law areas that are not related to escheat.”).

In this case, by investigating the no-fault act’s few scattered provisions concerning

reimbursement, the majority thoroughly demonstrates that the act does not occupy this area

of law. See ante at 11-14. And through the same analysis of these specific statutory

provisions, the majority ably explains why the indemnity agreement at issue does not

directly conflict with the operation of any other provision in the no-fault act. 1 This

analysis, in my view, is generally sufficient to dispose of the case. It shows that the no-

fault act does not occupy the field of indemnification and that none of the handful of

relevant provisions conflicts with the indemnification contract at issue.

I therefore cannot agree that the majority’s assessments of the sweeping scope and

purpose of the no-fault scheme have much, if any, analytical significance. That is, I cannot

agree that the enforceability of the indemnification contract at issue turns upon whether a

court considers it to be consistent with the broadly characterized statutory goals of

1
Implied conflict preemption is another type of preemption under which a provision
directly conflicts with state law, i.e., when the provision permits what the statute prohibits
or vice versa. DeRuiter v Byron Twp, 505 Mich 130, 140; 949 NW2d 91 (2020). As with
the field-preemption inquiry, no one here expressly framed the case in these terms. But
the mode of analysis used here, in searching for a conflict, is similar, and I would also
consider, in an appropriate case, whether this framing is helpful.

4
regulating the insurance of motor vehicles and requiring payment of benefits. See ante

at 10. I do not believe that the proper question in cases like the present one is whether a

contract provision “implicate[s]” or “relate[s] to” either of these broadly defined purposes

of the no-fault schemes. Ante at 10-11. 2 Rather, the case calls for a closer examination of

2
The majority’s use of statutory purpose here is problematic in at least two respects. One
is that it further aggrandizes the purposes we have attributed (without much assessment of
the text) to the no-fault act. In Shavers v Attorney General, 402 Mich 554, 578-579; 267
NW2d 72 (1978), we articulated a somewhat narrower purpose of the statute as
“provid[ing] victims of motor vehicle accidents [with] assured, adequate, and prompt
reparation for certain economic losses” through the means of compulsory insurance. We
subtly expanded this in Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 595; 648 NW
591 (2002), suggesting that both the “insurance of motor vehicles . . . and the payment of
benefits” were purposes of the act. Today, the majority gives these purposes teeth, holding
that contract provisions that “relate” to or “implicate” these broad purposes can thereby be
rendered unenforceable. Cruz did not establish such an aggressive use of these statutory
purposes. Rather, it stated that contracts that “contravene[] the requirements of the no-
fault act by imposing some greater obligation upon one or another of the parties [are], to
that extent, invalid.” Id. at 598. That inquiry involves a more careful examination of the
statutory provisions at issue.

A second troubling aspect of the majority opinion is the imprecise words it uses to
describe when the purposes of the no-fault act preclude enforcement of a contract: if the
provision “implicates” or “relates to” the purposes. It is uncertain how these criteria will
be met, as it seems likely that many provisions in an insurance contract will “implicate” or
“relate to” either insuring motor vehicles or paying benefits. The majority appears to give
these terms a limited scope, implying that a provision implicates or relates to a purpose
only if it results in denying insurance or benefits owed under the act. But if that is so, why
does the majority define the purposes so broadly? There are specific statutory sections that
relate to insuring vehicles and paying benefits. Under Cruz, a court should examine those
particular sections to determine whether they are contravened by the contractual provision
at issue. By generalizing the purposes of the no-fault act, the majority today suggests that
contractual agreements are in jeopardy even if they do not violate a particular provision
but instead have some connection with a broadly conceived statutory purpose. See
Preemption as Purposivism’s Last Refuge, 126 Harv L Rev at 1067.

5
the statutory text, such as the majority itself provides in addition to its assessments of the

statute’s broader objectives.

As I said at the outset, I agree with the conclusion the majority reaches and with

much of its work in getting there. I agree that the no-fault act is not a comprehensive

regulation of indemnification agreements and that none of the pertinent statutory provisions

conflicts with the agreement here. Therefore, I agree that the indemnification contract does

not violate the no-fault act and should be upheld. I do not believe, however, that to reach

this conclusion we should rely on the statute’s abstract goals as defined by this Court.

While the proper interpretive framework remains somewhat unclear—in particular,

whether preemption principles can illuminate the interpretation of the statute—I cannot

subscribe to a methodology that relies so heavily on statutory purposes. 3 For these reasons,

I respectfully concur.

David F. Viviano

3
The majority also extends its holding to insurers, even though the city here is a self-
insurer. See ante at 14-15. While the majority’s conclusion might very well be correct,
the majority has not offered any supporting analysis and, in any event, it is unnecessary to
reach this issue. Consequently, I do not join this portion of the majority opinion.

6