American Alternative Ins. Co., Inc. v. York

Michigan Supreme Court

Lansing, Michigan 48909

Chief Justice Justices

Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 5, 2004

AMERICAN ALTERNATIVE INSURANCE
COMPANY, INC., and DVA AMBULANCE
INC.,
Plaintiffs-Appellants,

v No. 121968

FARMERS INSURANCE EXCHANGE,
also known as FARMERS INSURANCE
COMPANY, FARM BUREAU INSURANCE
COMPANY, COATES MASONRY, INC.,
and CRIPPLE CREEK, INC.,
Defendants,

and

DONALD JEFFREY YORK,
Defendant-Appellee.
________________________________

PER CURIAM

Under the Michigan no-fault automobile insurance act,

MCL 500.3101 et seq., intentional conduct resulting in harm

strips an insured tortfeasor of the immunity from liability

otherwise given by the act. Here, the insured’s conduct

was found to be wilful and wanton. The Court of Appeals
held that such conduct was not the equivalent of

intentional misconduct and, so, the insured retained the

immunity from liability granted by the act. We affirm the

decision of the Court of Appeals, but for different

reasons.

While attending a Christmas party in 1997, defendant

Donald York drank for six or seven hours. York called his

wife to pick him up because he was concerned about his

ability to drive safely. But he later changed his mind and

decided that he could drive himself home. On the way home,

he failed to stop at a stop sign and collided with an

ambulance owned by DVA Ambulance Company. DVA was insured

by plaintiff American Alternative Insurance Company, which

paid DVA $61,000 for damage to the ambulance. American

then filed this action, seeking reimbursement from York.

York defended on the basis that, under the Michigan

no-fault insurance act, as a tortfeasor in an automobile

accident, he was immune from tort liability. The trial

court disagreed with York. It found his conduct wilful and

wanton, which it determined was equivalent to intentional

conduct. Thus, the court concluded that York was not

immune from suit under the no-fault act and he was liable

to American. On appeal, the Court of Appeals reversed the

decision of the trial court, concluding, in essence, that
2

the actions of York were not sufficiently wilful and wanton

to be intentional.

This case involves the interpretation of statutory

language. Matters of statutory interpretation are reviewed

under a de novo standard. DiBenedetto v West Shore Hosp,

461 Mich 394, 401; 605 NW2d 300 (2000). Dispositive in

this case is the rule of statutory construction that if the

language of the statute is clear and unambiguous, no

interpretation is necessary and the court must follow the

clear wording of the statute. Cruz v State Farm Mut

Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002);

City of Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d

804 (1959).

III

As part of the automobile no-fault insurance system

enacted in 1972,1 our Legislature at MCL 500.3135 abolished

tort liability for harm caused while owning, maintaining,

or using a motor vehicle in Michigan. The primary

exception to this broad immunity was that a suit could be

maintained when there was a death, serious impairment of

body function, or permanent serious disfigurement. Another

exception, relevant here, was when the tortfeasor had

1
1972 PA 294.

intentionally caused harm. The Legislature defined this

exception at MCL 500.3135(3), saying it encompassed:

(a) Intentionally caused harm to persons or
property. Even though a person knows that harm
to persons or property is substantially certain
to be caused by his or her act or omission, the
person does not cause or suffer that harm
intentionally if he or she acts or refrains from
acting for the purpose of averting injury to any
person, including himself or herself, or for the
purpose of averting damage to tangible property.
[Emphasis added.]

This subsection contains two sentences. The first

sentence sets out the general class of injuries for which

the tortfeasor is liable, i.e., harm that is intentionally

caused. The second sentence then presents an exception to

this class: when the tortfeasor is attempting to avert

injury, he is not liable for harm even if the harm was

substantially certain to result. Harm resulting from an

attempt to avert injury is not “intentionally caused.”

In this case, the insured did not act in an attempt to

avert injury. We must therefore determine if the class of

harm defined by the first sentence of the subsection,

“[i]ntentionally caused harm,” applies.

In reviewing the trial court’s determination that

defendant’s wilful and wanton conduct was equivalent to

intentional conduct, the Court of Appeals attempted to

qualify Citizens Ins Co of America v Lowery, 159 Mich App

611, 616-618; 407 NW2d 55 (1987), and thus engaged in a

discussion of the common-law distinctions between the tort

concepts of “wilful and wanton” and intentional. The Court

stated:

With some qualification, we are not
persuaded by defendant’s claim that Lowery was
wrongly decided. Where the statutory language is
clear and unambiguous, the statute does not need
interpretation and must be enforced as written.
Roberts v Mecosta Co General Hosp, 466 Mich 57,
63; 642 NW2d 663 (2002). Because § 3135 used the
phrase “intentionally caused harm,” and that
phrase is unambiguous, we must enforce it as
written. Therefore, the phrase “wilful and
wanton” may be substituted for “intentional” only
to the extent that it has the same meaning as
“intentional.” As the above quotations from
Lowery and Boumelhem [v Bic Corp, 211 Mich App
175, 185; 535 NW2d 574 (1995)] suggest, “wilful
and wanton” is generally equated with
“intentional.” Therefore, to the extent that
Lowery equates “wilful and wanton” with
“intentional,” we agree with the decision in
Lowery. However, to the extent that “wilful and
wanton” is read to include conduct less than
intentional, such as recklessness, then the
decision in Lowery improperly interpreted the
statute and cannot stand. Therefore, we agree
with Lowery to the extent that it employs a
meaning of “wilful and wanton” that is synonymous
with “intentional” and we limit its holding
accordingly. [252 Mich App 76, 79-80; 650 NW2d
729 (2002).]

The gist of this is, as we read it, that while much

intentional conduct is wilful and wanton, not all wilful

and wanton conduct is intentional. Be that as it may, this

case lends itself to a simpler analysis.

The Legislature, in speaking so clearly in § 3135(3),

made unmistakable its intent to define where immunity was

lost. As set out in the statute, the test is: was the harm

intentionally caused.2 The statute makes no reference to

“wilful and wanton.” Accordingly, in analyzing §

3135(3)(a), the courts are to review only whether the

defendant intended to cause the harm that resulted.

As to the instant case, while there is evidence that

York was intoxicated, there is none to support a finding

that he actually intended to collide with the ambulance and

cause damage to it. Thus, under the language of the

statute, because York did not intend to cause damage to the

ambulance, he is immune from suit. Therefore, the Court of

Appeals correctly determined that the trial court’s finding

was clearly erroneous. MCR 2.613(C).

The trial court and the Court of Appeals applied the

wrong legal standards. However, because the Court of

Appeals reached the correct result, we affirm the Court of

Appeals decision for the reasons stated herein.

Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.

2
This test is accurately stated in Hicks v Vaught, 162
Mich App 438, 440; 413 NW2d 28 (1987), which the Court of
Appeals, for whatever reason, did not discuss.
6
S T A T E O F M I C H I G A N

SUPREME COURT

AMERICAN ALTERNATIVE INSURANCE
COMPANY, INC., and DVA AMBULANCE
INC.,
Plaintiffs-Appellants,

v No. 121968

FARMERS INSURANCE EXCHANGE,
also known as FARMERS INSURANCE
COMPANY, FARM BUREAU INSURANCE
COMPANY, COATES MASONRY, INC.,
and CRIPPLE CREEK, INC.,
Defendants,

and

DONALD JEFFREY YORK,
Defendant-Appellee.
________________________________

MARKMAN, J. (concurring).

I concur. Although I agree with the result reached by

the majority, I find its analysis inadequate because it

fails at all to address plaintiff’s principal argument—that

"intentionally caused harm" in the first sentence of MCL

500.3135(3)(a) is defined, by implication in the second

sentence, and, as a result, encompasses not only

"intentionally caused harm,” but also harm that is
“substantially certain” to occur.1

1
At oral argument, both parties essentially contended
that § 3135(3)(a) should be understood in such a manner.
Kevin Sralla, plaintiff’s attorney, stated:

Or if you do something where you know that
you’re substantially certain to hit the other
truck and there’s no element of acting to avert
harm, then I think that also would be an
intentional act. And that’s precisely the reason
why I think the Legislature contemplated a
broader umbrella for intentional acts because it
used the words “substantially certain.” It
didn’t say if you intend to do something, it said
“substantially certain.”

In his opening statement, William Schultz, defendant’s
attorney asserted:

The Legislature intended by that
particular language [in the second sentence] then
to provide that there was a status of misconduct
that did not get immunity. That misconduct
includes and includes only intended actions where
the person knows that harm is substantially
certain to occur as the result of that person’s
conduct.

Later, Mr. Schultz stated:

I don’t believe that you can read in
harmony the second [sentence] of [§ 3135(3)(a)]
with an argument that in all cases there is no
immunity only if there is an intended action that
results in intended harm. In other words, we
agree that in order to read [the first and second
sentences] in harmony, there has to be a
2
Section 3135(3) enumerates several circumstances in

which an insured tortfeasor may be held liable for a

vehicular accident, despite the automobile no-fault act's

broad personal immunity from tort liability. Section 3135,

in particular, provides:

(3) Notwithstanding any other provision of
law, tort liability arising from the ownership,
maintenance, or use within this state of a motor
vehicle . . . is abolished except as to:

While the second sentence in subsection (a)

conceivably can be read to imply that the “intentionally

caused harm” standard of the first sentence is to be

defined with reference to a state of mind in which a person

is “substantially certain” that an outcome will result from

particular conduct, I do not believe that this is the

better reading of this provision. Rather, “intentionally

caused harm” should be given its ordinary meaning, one that

concession that there is some conduct less than
the true intentional tort for which the person
does not get the immunity provided by the no-
fault act. Otherwise, it seems to us, that
second [sentence] of the statute is unnecessary.

requires purposefulness on the part of the driver, rather

than a mere awareness of probabilities. That is, absent

some special definition of “intentionally” in the statute,

it should be assumed that “intentionally” means

“intentionally.” People v Morey, 461 Mich 325, 330; 603

NW2d 250 (1999).2 Although the Legislature is free to

define words to mean something other than what they

ordinarily mean, it nonetheless should be assumed that

words possess their ordinary meanings unless clearly

defined in a contrary manner.

While it might, not unreasonably, be argued that the

second sentence of subsection (a) attempts to redefine

“intentionally” by impliedly equating it with

“substantially certain,” such an implication, in my

judgment, is simply too obscure in this context to overcome

the presumption that words should be understood by their

ordinary meanings. Here, in the case of a term,

"intentionally," that has a longstanding and well-defined

meaning ranging across a variety of discrete areas of the

2
See In re Certified Question (Kenneth Henes v Biomass
Ind, Inc), 468 Mich 109, 114; 659 NW2d 597 (2003)(defining
“intentional,” for purposes of MCL 600.2961[5][b], in
accordance with the Random House Webster’s College
Dictionary [1991] [“done with intention or on purpose;
intended”]). See also Cruz v State farm Mut Automobile Ins
Co, 466 Mich 588, 595; 648 NW2d 591 (2002); Hicks v Vaught,
162 Mich App 438, 440; 413 NW2d 28 (1987).

law,3 § 3135(3) fails to communicate with sufficient clarity

that the term here is to be given an alternative and

inconsistent meaning. Instead, the statute leaves such a

conclusion to be drawn only by negative inference from what

is clearly an awkward phraseology.4

Although I believe that the purpose of the prefatory

clause in the second sentence is merely to introduce an

3
See, e.g., Travis v Dreis & Krump Mfg Co, 453
Mich 149, 171; 551 NW2d 132 (1996)(opinion by BOYLE,
J.)(concluding that an “intentional tort,” for purposes of
MCL 418.131[1], occurs, not where the “employer is only
substantially certain that injury will result from his
acts,” but only where the employer has “in mind a purpose
to bring about given consequences”); Auto-Owners Ins Co v
Churchman, 440 Mich 560, 573; 489 NW2d 431 (1992)(holding
that the insured’s actions satisfied an insurance policy’s
exclusionary clause, which exempted coverage for “bodily
injury or property damage expected or intended by an
insured person,” because the insured “purposely went to
[the victim’s] house and shot him four times at close
range”); People v Dykhouse, 418 Mich 488, 502; 345 NW2d 150
(1984)(stating that a “very high risk of death” intent is
insufficient to satisfy first-degree murder, which is a
specific intent crime requiring proof of defendant’s
intention to take a life); Book Furniture Co v Chance, 352
Mich 521, 526-527; 90 NW2d 651 (1958)(holding that
“[w]aiver is the intentional relinquishment of a known
right . . . . The usual manner of waiving a right is by
acts which indicate an intention to relinquish it, . . . or
by so neglecting and failing to act as to induce a belief
that it was the intention and purpose to waive.")

4
I surmise that the drafters of this provision sought
to restate the rule of the first sentence in the prefatory
clause to the second sentence, but sought also to avoid the
awkwardness of repeating the language of the first sentence
in so doing. Unfortunately, their resummarization was
imprecise and has engendered confusion.
5
exception to the rule of the first sentence, rather than to

serve as a definitional clause for the first sentence, this

purpose is considerably less clear than it might have been.

Therefore, I do not view plaintiff's proposed

interpretation as unreasonable, but simply as less

reasonable than that adopted by the majority. Choosing

among these interpretations requires this Court to select

among imperfect alternatives.

Although § 3135(3)(a) is certainly crafted more

awkwardly than it might have been, I believe that the

majority’s interpretation of this provision is the more

reasonable interpretation, and I therefore concur with the

majority.

Stephen J. Markman

American Alternative Ins. Co., Inc. v. York

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