The Michigan Supreme Court is set to finally address the issue of whether and to what extent the “judicially created” “family joyriding exception” is viable in light of the plain language of the No-Fault Act.
Today, the Court issued a grant order in Progressive v. DeYoung to address the issue of (1) whether an immediate family member who knows that he or she has been forbidden to drive a vehicle, and has been named in the no-fault insurance policy applicable to the vehicle as an “excluded driver”, but who nevertheless operates the vehicle and sustains personal injury in an accident while doing so comes with the so-called “family joyriding exception” to MCL 500.3113(a); and (2) if so, whether the “family joyriding exception” should be limited or overruled. Here is the Court’s Order: Progressive v DeYoung et al..
The Court of Appeals followed a string of cases applying the “family joyriding exception”, which essentially “judicially voids” the language of MCL 500.3113(a), which statutorily excludes the payment of no-fault benefits to an injured person if “[t]he 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.” The Court of Appeals opinion is here: Progressive v DeYoung (COA Opinion).
In the instant case, the injured driver was explicitly excluded under the No-Fault policy and did not have permission to use the vehicle from its owner. Nonetheless the Court of Appeals used the judicially contrived exception to thwart the intent, not only of the Legislature, but, in fact, of the contracting parties! This case will have significant implications on the rights and responsibilities of vehicle owners and no-fault insurers.
Published by Carson J Tucker, JD MSEL
Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs.
Board of Directors, Michigan Defense Trial Counsel
Amicus Committee Co-Chair, Michigan Defense Trial Counsel
Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia.
United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003
Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
View all posts by Carson J Tucker, JD MSEL