Order Michigan Supreme Court
Lansing, Michigan
December 7, 2010 Marilyn Kelly,
Chief Justice
138805 Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
LORI CALDERON, as Guardian of ARTHUR Diane M. Hathaway
KRUMM, a Legally Incapacitated Person, Alton Thomas Davis,
Plaintiff/Counter-Defendant- Justices
Appellee,
and
FUNCTIONAL RECOVERY, INC.,
Intervening Plaintiff/Appellee,
v SC: 138805
COA: 283313
Wayne CC: 06-602100-NF
AUTO-OWNERS INSURANCE COMPANY,
Defendant/Counter-Plaintiff-
Appellant.
_________________________________________/
On November 5, 2010, the Court heard oral argument on the application for leave
to appeal the March 24, 2009 judgment of the Court of Appeals. On order of the Court,
the application is again considered, and it is DENIED, because we are not persuaded that
the question presented should be reviewed by this Court.
KELLY, C.J. (concurring).
I concur in the Court’s order denying Auto-Owners Insurance Company’s
application for leave to appeal. I write separately to respond to the dissent. It suggests
that the issue of domicile should be decided as a matter of law because the facts “are not
in dispute.” However, material facts are in dispute.
Arthur Krumm, age 29, was severely injured when a car in which he was a
passenger was involved in a single-car accident in North Carolina on May 16, 2003.
Krumm had no automobile insurance, and the driver of the car was not insured under a
Michigan no-fault policy. As a result of the accident, Krumm sustained traumatic brain
injuries, and plaintiff, Krumm’s sister, was appointed as his legal guardian. Krumm’s
condition apparently prevented him from giving a deposition or otherwise explaining
where he was domiciled at the time of the accident.
2
Auto-Owners initially paid no-fault benefits arising from Krumm’s injuries based
on the theory that he was domiciled in Fife Lake, Michigan, with his grandmother, who
had a no-fault policy with defendant.1 However, it discontinued the benefits and asserted
that Krumm was not entitled to them because he was not domiciled with his grandmother.
Plaintiff sued Auto-Owners seeking personal protection insurance benefits and
underinsured motorist benefits under Krumm’s grandmother’s policy. The trial court
granted Auto-Owners’ motion for summary disposition, and the Court of Appeals
reversed.
In concluding that the Court of Appeals erred in reversing the trial court’s grant of
summary disposition, the dissent focuses mainly on Krumm’s domiciliary intent.
However, additional factors must be weighed when determining a person’s domicile for
purposes of MCL 500.3114(1) including: (1) the formality or informality of the
relationship between the claimant and members of the insured’s household; (2) whether
the claimant lives in the same house, within the same curtilage, or on the same premises
as the insured; (3) the existence or lack of another lodging for the claimant; (4) the
claimant’s mailing address; (5) whether the claimant maintains possessions at the
insured’s home; (6) whether the insured’s address appears on the claimant’s driver’s
license; (7) whether the claimant has a bedroom in the insured’s home; and (8) whether
the claimant is dependent on the insured for financial support. Workman v Detroit Auto
Inter-Insurance Exchange, 404 Mich 477, 496-97 (1979); Dairyland Ins Co v Auto-
Owners Ins Co, 123 Mich App 675 (1983).
The facts pertinent to these factors add additional support to plaintiff’s assertion
that Krumm was domiciled with his grandmother in Michigan at the time of the accident.
Plaintiff submitted evidence that (1) Krumm’s grandmother’s relationship to Krumm was
actually that of a mother rather than grandmother. Krumm’s grandmother adopted him
when he was a young boy and raised him; (2) Krumm visited Arkansas only periodically
and always returned to his grandmother’s house in Michigan; (3) Krumm was estranged
from his wife. He did not have a residence in Arkansas, but moved from place to place,
living a transient lifestyle; (4) Krumm received mail at his grandmother’s address in
Michigan; (5) Krumm kept possessions at his grandmother’s house; (6) Krumm did not
have a driver’s license in any state, but he had a Michigan ID card and a voter’s
registration card both listing his grandmother’s address in Michigan; and (7) Krumm had
his own bedroom in his grandmother’s house.
By focusing on the first factor, Krumm’s domiciliary intent, the dissent fails to
consider the evidence that plaintiff presented in opposition to the motion for summary
disposition. This ignores the standard of review a court must use when a defendant seeks
1
MCL 500.3114(1) provides that a person with injuries arising from a motor vehicle
accident may claim Michigan no-fault benefits under the policy of a spouse or relative
domiciled in the same household.
3
summary disposition under MCR 2.116(C)(10). The court must review the evidence
submitted by the parties in the light most favorable to the party opposing the motion.
West v General Motors Corp, 469 Mich 177, 183 (2003). In this case, plaintiff presented
material facts that created a genuine issue when opposing the summary disposition
motion. The facts must be viewed in the light most favorable to plaintiff.
Moreover, the dissent also errs in its summary of the evidence involving plaintiff’s
intent. Because the accident incapacitated Krumm, he was unable to testify about where
he was domiciled. Friends and family members gave deposition testimony regarding his
domiciliary intent. It was conflicting. Some witnesses testified that plaintiff intended to
remain in Arkansas, at least temporarily, and some testified that he intended to return to
his grandmother’s. As the Court of Appeals noted: “There was no evidence presented
that Krumm planned to remain in Arkansas permanently, but there was evidence
presented from multiple sources that Krumm intended to move back to Michigan and
verbally declared that intent.” Calderon v Auto-Owners Ins Co, unpublished opinion per
curiam of the Court of Appeals, issued March 24, 2009 (Docket No. 283313).
The totality of evidence, viewed in the light most favorable to plaintiff, may not
prove that Krumm resided with his grandmother. However, it provides a basis for a
reasonable jury to conclude that he was domiciled with her at the time of the accident.
Given the conflicting evidence regarding domiciliary intent and considering the other
Workman-Dairyland factors, a genuine issue of material fact exists about Krumm’s
domicile. It should be submitted to a jury. I agree with the Court of Appeals that
summary disposition should not have been granted.
MARKMAN, J. (dissenting).
I respectfully dissent from the order denying defendant’s application. Under no
circumstances, in my judgment, could it be fairly said that, at the time of the accident in
this case, Arthur Krumm was “domiciled in the same household” as his grandmother in
Michigan for purposes of personal protection insurance under our no-fault act.
Accordingly, I would reverse the judgment of the Court of Appeals and remand to the
trial court for reinstatement of its order granting summary disposition in favor of
defendant.
Under Michigan’s no-fault act, personal protection insurance benefits are available
to “the person named in the policy, the person’s spouse, and a relative of either domiciled
in the same household . . . .” MCL 500.3114(1). “Domicile [is] that place where a
person has voluntarily fixed his abode not for a mere special or temporary purpose, but
with a present intention of making it his home, either permanently or for an indefinite or
unlimited length of time.” Henry v Henry, 362 Mich 85, 101-102 (1960) (citation
omitted). “Generally, the determination of domicile is a question of fact. However,
4
where . . . the underlying facts are not in dispute, domicile is a question of law for the
court.” Fowler v Auto Club Ins Assn, 254 Mich App 362, 364 (2002).
The facts here are not in dispute. Krumm, who was born and raised in Michigan
by his grandmother, abandoned his ties to Michigan and moved to Arkansas in 2002, with
his wife and children, where he lived and worked for 13 months prior to his accident. In
each of his many encounters with Arkansas public safety authorities, Krumm identified
himself as an Arkansas resident with an Arkansas address. Indeed, as best as it can be
discerned from the record, from approximately 1993 to 1998, Krumm had only lived
intermittently with his grandmother, and from 1999 to 2002, numerous police reports
indicate that he had not lived with his grandmother. Then, in May of 2003, while
searching for work in North Carolina, Krumm was injured in the accident. Krumm’s
legal guardian brought suit against defendant Auto-Owners claiming that he was entitled
to first-party benefits under his grandmother’s policy because he had been domiciled in
her home. After extensive discovery, the trial court granted defendant’s motion for
summary disposition, holding that Krumm was not “domiciled in the same household” as
his grandmother. Yet, based on statements that Krumm intended to return to Michigan at
some uncertain time in the future, the Court of Appeals held that a question of fact
existed as to whether Krumm had been domiciled in Michigan.
By denying leave to appeal, the majority leaves intact a lower court decision that
holds that a 29-year-old married man with children, who had been living in another state
for a significant period of time, may be considered “domiciled” in Michigan. Even
viewing the evidence in a light most favorable to plaintiff, hearsay statements that
Krumm intended to return to Michigan do not provide a reasonable basis for finding that
he was “domiciled in the same household” as his grandmother. An intent to return to his
grandmother’s house at some indefinite time in the future, or “some day,” is insufficient
to find that Krumm was “domiciled in the same household” as his grandmother, in light
of the understanding of domicile as that place where a person has the “present intention”
of making his home. If evidence that a person has been “contemplating,” “mulling over,”
“pondering,” or “speculating about,” the idea of returning to a place at which he lived
intermittently in the past is deemed adequate to sustain a finding of domicile, then
traditional notions of this concept will be eroded. The financial consequences of the
majority’s creative understanding of “domicile” will, of course, be borne by policy
holders in Michigan through higher premiums.
Despite the Chief Justice’s assertion to the contrary, the facts here are not “in
dispute,” only their relevance. Her concurring statement identifies a laundry-list of
factors drawn from case-law that may or may not be relevant in particular cases in
determining domicile, and asserts that I have failed in this dissent to mention each of
these. However, even the Chief Justice’s enumeration of factors falls well short of
identifying the “totality of circumstances” that conceivably could be relevant in the
determination of a domicile. There is no end to the universe of factors that could be
5
relevant to such a determination in a proper case. However, what is dispositive here is
the standard by which domicile is determined — domicile exists only in that place
“where a person has voluntarily fixed his abode not for a mere special or temporary
purpose, but with a present intention of making it his home, either permanently or for an
indefinite or unlimited length of time.” I have set forth the entirety of factors that, in my
judgment, conduce toward a finding that domicile — wherever it obtained for Krumm at
the time of the accident — did not obtain at his grandmother’s house in Michigan. I do
not believe that a reasonable finder of fact could have aggregated the factors collected by
the Chief Justice to reasonably conclude any differently.
CORRIGAN, J., joins the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 7, 2010 _________________________________________
1124 Clerk