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STATE OF MICHIGAN COURT OF APPEALS

SPECTRUM HEALTH HOSPITALS, Plaintiff-Appellee/Cross-Appellant, v FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN and FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, Defendants-Appellants/CrossAppellees.

UNPUBLISHED February 24, 2011

No. 296976 Kent Circuit Court LC No. 09-005149-NF

Before: OWENS, P.J., and MARKEY and METER, JJ. PER CURIAM. In this dispute involving insurance coverage for a single-car accident, defendants appeal as of right from a grant of summary disposition to plaintiff. Plaintiff cross-appeals, arguing that the trial court erred in denying its request for attorney fees. We affirm. On May 16, 2008, Craig Smith, Jr. (Craig Jr.), was driving a Ford Explorer owned by his father, Craig Smith, Sr. (Craig Sr.), when he struck a tree and sustained injuries, which were treated at plaintiff Spectrum Health Hospitals. Craig Jr. was legally intoxicated and had no valid license at the time of the accident. Defendants insured the vehicle in question, and plaintiff therefore sued them for medical expenses related to the accident. Plaintiff filed a motion for summary disposition under MCR 2.116(C)(10), arguing that because Craig Sr. had given permission to Kathleen Chirco, Craig Jr.'s girlfriend, to drive the Explorer, and because Chirco subsequently gave permission to Craig Jr. to drive the vehicle, defendants were obligated to provide coverage related to the accident. Defendants argued that they were not obligated to provide coverage because there had been an "unlawful taking" of the vehicle by Craig Jr. They emphasized that Craig Jr. knew that his father did not want him to drive the vehicle and that Craig Jr. was intoxicated and without a license at the time of the accident. The trial court, relying on Cowan v Strecker, 394 Mich 110; 229 NW2d 302 (1975), granted plaintiff's motion, awarding $30,936.77 in covered expenses and $1,403.46 in penalty interest. -1-

On appeal, defendants argue that they were not obligated to provide coverage related to the accident because of the restrictions contained in MCL 500.3113. We review de novo a trial court's grant of summary disposition. Corley v Detroit Bd of Education, 470 Mich 274, 277; 681 NW2d 342 (2004). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating such a motion, a court considers the entire record in the light most favorable to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Corley, 470 Mich at 278 (internal citation and quotation marks omitted).] MCL 500.3113 states, in part: A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed: (a) The person was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle. Defendants emphasize that Craig Jr. was intoxicated and had no valid license at the time of the accident. Defendants cite Amerisure Ins Co v Plumb, 282 Mich App 417; 766 NW2d 878 (2009), in support of their appeal. In Amerisure, id. at 420-421, the defendant had driven a vehicle without the permission of the owner and without the permission of someone who had himself obtained permissive use from the owner. The defendant was also intoxicated and had no valid license at the time she drove the vehicle. Id. at 421. She was in an accident and sustained injuries. Id. The Amerisure Court examined MCL 500.3113(a) and stated: . . . benefits will be denied if the taking of the vehicle was unlawful and the person who took the vehicle lacked "a reasonable basis for believing that he [or she] could take and use the vehicle." Bronson Methodist Hosp v Forshee, 198 Mich App 617, 626, 499 N.W.2d 423 (1993). When applying

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