GUIBORD
v.
FARMERS INSURANCE EXCHANGE.
Docket No. 54857.
Michigan Court of Appeals.
Decided October 7, 1981.Pere, Schmidt, Raguso & Isgrigg, for plaintiff.
Sauer, Sterling & Schilling, for Farmers Insurance Exchange.
Young & Heckman, for Home Insurance Company.
Don F. Shell, for West American Insurance Company.
Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN,[*] JJ.
DANHOF, C.J.
This action arose out of a motorcycle-motor vehicle accident. Plaintiff Francis Guibord, the motorcyclist, brought this action for no-fault personal protection insurance benefits against defendant third-party plaintiff Farmers Insurance Exchange (Farmers), the insurer of the owner and operator of the motor vehicle, Nancy Haaseth. Farmers, in turn, filed a third-party action against Home Insurance Company (Home), the insurer of Guibord's sister, and against West *221 American Insurance Company (West American), the insurer of Guibord's father. The theory behind the third-party complaint was that at the time of the accident Guibord had been domiciled either in his sister's Michigan household or in his father's Ohio household, and that MCL 500.3114(1); MSA 24.13114(1), required benefits to be paid by either Home or West American.
Prior to trial, the district court granted summary judgment for West American on the ground that the conditions for liability of an out-of-state insurer under MCL 500.3163; MSA 24.13163 had not been met. At the conclusion of the nonjury trial the district court found that Guibord had been domiciled in Ohio at the time of the accident. Under this decision Farmers is required to pay Guibord's personal protection insurance (PIP) benefits pursuant to MCL 500.3115(1); MSA 24.13115(1).
Farmers appealed the district court's decision to circuit court, which affirmed. Farmers then sought leave to appeal to this Court, which denied leave. Farmers sought leave to appeal to the Supreme Court, which Court in lieu of leave to appeal remanded to this Court for consideration as on leave granted.[1]
The first issue raised by Farmers concerns whether the trial court erred in denying its motion for a new trial on the ground that the court's finding that Guibord was domiciled in Ohio on the date of the accident is against the great weight of the evidence.
Before we address the merits of this issue, we note that Guibord was not a named insured in any automobile insurance policy. Furthermore, the motorcycle he was driving did not qualify as a "motor *222 vehicle" pursuant to MCL 500.3101(2); MSA 24.13101(2) of the no-fault act. However, under the terms of the no-fault act, a motorcyclist may be entitled to claim no-fault benefits when he is injured in an accident involving a motor vehicle. Underhill v Safeco Ins Co, 407 Mich. 175, 182-186; 284 NW2d 463 (1979). See also Piersante v American Fidelity Ins Co, 88 Mich. App. 607; 278 NW2d 691 (1979).
In examining Guibord's claim for PIP benefits, it is important to determine if he was domiciled in Ohio or Michigan on August 10, 1976, since § 3114(1) provides in pertinent part:
"Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household." (Emphasis added.)
In the event § 3114(1) is not applicable, § 3115(1) provides:
"Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident."
Under § 3114(1) and § 3115(1), if Guibord was domiciled in his sister's Michigan household at the time of the accident, then he qualifies for PIP benefits from her insurer, Home. Underhill, supra, 182. If Guibord was domiciled in his father's Ohio *223 household at the time of the accident, then he might qualify for PIP benefits from either his father's insurer, West American, or the insurer of the motor vehicle involved in the accident, Farmers. Whether Farmers or West American is liable for Guibord's PIP benefits will be discussed more fully later in this opinion.
As noted above, the district court, acting as trier of fact, found that at the time of the accident Guibord was domiciled in his father's Ohio household. The trial court also denied Farmers' motion for a new trial.
A new trial may be ordered if the court in its discretion considers the decision to be against the great weight of the evidence. DCR 527.1(5). This Court interferes with the trial court's exercise of its discretion "only if abuse of its discretion is so plain that upon consideration of the facts upon which the trial judge acted an unprejudiced person can say that there was no justification or excuse for the ruling made". Carpenter v Cleveland, 32 Mich. App. 213, 215; 188 NW2d 248 (1971).
In Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich. 477, 496-497; 274 NW2d 373 (1979), the Supreme Court set forth the following factors to be considered in determining "domicile" under § 3114(1):
"(1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his `domicile' or `household'; * * * (2) the formality or informality of the relationship between the person and the members of the household; * * * (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises, * * * (4) the existence of another place of lodging by the person alleging `residence' or `domicile' in the household; * * *."
*224 In the instant case, Guibord, who had just graduated from high school in Ohio, came to Michigan in June of 1976. Guibord testified that he intended to stay in Michigan only for the summer of 1976. Thereafter he intended to return to his father's Ohio home and look for a job in Ohio. Guibord gave a reasonable explanation for his stay in Michigan: the job market in his small Ohio hometown was temporarily glutted with college students. According to Guibord, his intention of returning to Ohio changed after the accident as a result of his desire to continue treatment with a Michigan physician, Dr. Joseph Carlisle.
Farmers relies on a chain of inferences in support of its contention that the determination of the trial court is against the great weight of the evidence. Farmers asserts, inter alia, that Dr. Carlisle's testimony indicates that Guibord might have visited him only once during a period of five or six months after January of 1977 and that Guibord was not really concerned with the proximity of Dr. Carlisle. Farmers also claims that it can be inferred from Guibord's failure to leave Michigan after the accident that he intended to make Michigan his domicile before the accident. We do not find these inferences so compelling as to support the conclusion that the trial court abused its discretion. The findings of the trial court as to Guibord's domicile are affirmed.
Farmers argues, alternatively, that even if the trial court were correct in finding that Guibord was domiciled in Ohio at the time of the accident, that court erred in granting summary judgment in favor of West American on the ground that the conditions for liability for an out-of-state insurer under § 3163 had not been met. Farmers reasons that if Guibord was domiciled in his father's Ohio *225 household, West American, having filed the written certification required of out-of-state insurers under § 3163, is bound by the priority of payment provisions of § 3114(1) and § 3115(1).
Farmers' arguments find support in a recent decision by another panel of this Court. In Mills v Auto-Owners Ins Co, 102 Mich. App. 105; 300 NW2d 757 (1980), a Wisconsin motorcyclist was injured in a motorcycle-motor vehicle accident and sought no-fault benefits from either his father's Wisconsin insurer or the insurer of the Michigan driver of the motor vehicle involved in the accident. The panel in Mills examined relevant case law and what it viewed as the pertinent provisions of the no-fault act and concluded that the Wisconsin insurer (Auto-Owners) was liable for the motorcyclist's no-fault benefits. In reaching this conclusion, Mills stated:
"Defendant Auto-Owners's only argument on appeal is that § 3163 requires that the injury arise out of the operation or use of a motor vehicle, which does not include a motorcycle; and, since the injuries in the present case arose from the use of a motorcycle rather than from the ownership, operation, maintenance or use of a motor vehicle, § 3163 is unavailable to plaintiffs and plaintiffs must seek benefits from the insurer of the owner or driver of the motor vehicle involved in the accident. Defendant Auto-Owners's argument is essentially identical to the argument which was rejected in Underhill and Piersante. As noted hereinbefore, those cases held that as long as the vehicle which is involved in the accident with the motorcycle is a `motor vehicle', the motorcycle, even though it is not a `motor vehicle', is entitled to no-fault benefits. Defendant Auto-Owners's argument would lead to an interpretation of the wording in § 3163 which is inconsistent with the interpretation of virtually identical wording in § 3105. This Court's duty, however, is to construe the act `to render it internally consistent and to avoid absurd results'. *226 Shoemaker v National Ben Franklin Ins Co of Michigan, 78 Mich. App. 175, 178; 259 NW2d 414 (1977).
"Therefore, defendant Auto-Owners's argument is rejected by this Court, and the judgment of the trial court is affirmed." Id., 111.
We disagree with the reasoning of Mills, and conclude that Mills overlooked a crucial distinction between § 3105, MCL 500.3105; MSA 24.13105, and § 3163.
Section 3105(1) provides:
"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter."
Section 3163(1) provides:
"An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, shall be subject to the personal and property protection insurance system set forth in this act." (Emphasis added.)
Unlike Mills, we do not find that § 3105 and § 3163 are "virtually identical". Section 3105 contains no counterpart to the emphasized language in § 3163. We also note that in Underhill and Piersante the Courts did not hold that a motorcycle was a "motor vehicle" for purposes of § 3105. Rather, those Courts held that the motorcyclists *227 were entitled to no-fault benefits because, even though they were not using a motor vehicle, the other party involved in the accident was. Thus, the accidents arose out of the use of a motor vehicle.
In the instant case, Guibord's accident arose out of the use of a motor vehicle but did not arise out of the use of a motor vehicle by an out-of-state resident. Guibord was the out-of-state resident involved and he was using a motorcycle. Thus, we find that the conditions for liability of an out-of-state insurer set forth in § 3163 have not been met. The trial court did not err in granting summary judgment in favor of West American.
To summarize, we find that the priority provisions of § 3114(1) and § 3115(1) are applicable to this case. We also find that Home is not liable for Guibord's PIP benefits because Guibord was not domiciled in his sister's Michigan household at the time of the accident. West American is not liable for Guibord's PIP benefits because the conditions for liability of an out-of-state insurer set forth in § 3163 have not been met. However, Farmers, as the insurer of the motor vehicle involved in this accident, is liable for Guibord's PIP benefits under § 3115(1) of the no-fault act.
Affirmed. No costs, interpretation of a statute being involved.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] 409 Mich. 939 (1980).