
    Tracy C. BRICKEY and Brandy Brickey, Plaintiffs-Appellants, v. Vincent Lavon MCCARVER and CR Motors of Adrian, Inc., Defendants-Appellees.
    No. 337448
    Court of Appeals of Michigan.
    Submitted April 10, 2018, at Detroit. Decided April 17, 2018, at 9:10 a.m.
    Barbara H. Goldman for plaintiffs.
    Wilson Elser Moskowitz Edelman & Dicker (by John T. Eads, III, and Carol A. Smith ) for defendants.
    Before: Boonstra, P.J., and Beckering and Ronayne Krause, JJ.
   Boonstra, P.J.

In this third-party no-fault action, plaintiffs appeal by right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(8). We reverse and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff Tracy Brickey (Tracy) was operating his motorcycle on US-223 when he was struck by a vehicle driven by defendant Vincent McCarver (McCarver) and owned by defendant CR Motors. Tracy was severely injured.

Plaintiffs filed suit against defendants, arguing that (1) McCarver negligently operated a vehicle and caused injury to Tracy, (2) CR Motors was liable for McCarver's negligence under Michigan's owner's-liability statute, MCL 257.401, and the doctrine of negligent entrustment, and (3) McCarver's negligence additionally resulted in plaintiff Brandy Brickey's loss of consortium. Defendants answered the complaint and also moved for summary disposition under MCR 2.116(C)(8) and (10). Defendants contended in their motion that the motorcycle Tracy was operating at the time of the accident was uninsured and that plaintiffs, accordingly, were precluded from recovery under MCL 500.3135(2)(c). The trial court agreed, relying on Braden v. Spencer , 100 Mich. App. 523, 299 N.W.2d 65 (1980), and granted summary disposition in favor of defendants under MCR 2.116(C)(8) (failure to state a claim on which relief may be granted). The trial court denied plaintiffs' motion for reconsideration. This appeal followed.

II. STANDARD OF REVIEW

A "trial court's ruling on a motion for summary disposition is reviewed de novo on appeal." ZCD Transp., Inc. v. State Farm Mut. Auto. Ins. Co. , 299 Mich. App. 336, 339, 830 N.W.2d 428 (2012), citing Moser v. Detroit , 284 Mich. App. 536, 538, 772 N.W.2d 823 (2009). "A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings." Dalley v. Dykema Gossett PLLC , 287 Mich. App. 296, 304, 788 N.W.2d 679 (2010), citing Corley v. Detroit Bd. of Ed. , 470 Mich. 274, 277, 681 N.W.2d 342 (2004). Summary disposition under MCR 2.116(C)(8) is appropriately granted if the opposing party has failed to state a claim on which relief can be granted. Id ."When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the nonmoving party." Dalley , 287 Mich. App. at 304-305, 788 N.W.2d 679, citing Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). A motion under MCR 2.116(C)(8)"should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." Kuhn v. Secretary of State , 228 Mich. App. 319, 324, 579 N.W.2d 101 (1998), citing Wade v. Dep't of Corrections , 439 Mich. 158, 163, 483 N.W.2d 26 (1992).

We also review de novo questions of statutory interpretation. McLean v. McElhaney , 289 Mich. App. 592, 596, 798 N.W.2d 29 (2010).

III. ANALYSIS

Plaintiffs argue that the trial court erred by granting summary disposition in favor of defendants because MCL 500.3135(2)(c), by its plain language, applies only to uninsured "motor vehicles," as opposed to motorcycles, and therefore does not limit plaintiffs' right to seek damages in tort. We agree.

"The primary rule of statutory interpretation is that we are to effect the intent of the Legislature." Stanton v. City of Battle Creek , 466 Mich. 611, 615, 647 N.W.2d 508 (2002), citing Wickens v. Oakwood Healthcare Sys. , 465 Mich. 53, 60, 631 N.W.2d 686 (2001). " 'To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language.' " Odom v. Wayne Co. , 482 Mich. 459, 467, 760 N.W.2d 217 (2008), quoting Lash v. Traverse City , 479 Mich. 180, 187, 735 N.W.2d 628 (2007). Our primary focus in statutory interpretation "is the language of the statute under review." People v. Harris , 499 Mich. 332, 345, 885 N.W.2d 832 (2016). If the language is unambiguous, the intent of the Legislature is clear and " 'judicial construction is neither necessary nor permitted.' " Odom , 482 Mich. at 467, 760 N.W.2d 217, quoting Lash , 479 Mich. at 187, 735 N.W.2d 628. The words of the statute provide the best evidence of legislative intent and the policy choices made by the Legislature. See White v. City of Ann Arbor , 406 Mich. 554, 562, 281 N.W.2d 283 (1979). Our role as members of the judiciary is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result. In fact, a "clear and unambiguous statute leaves no room for judicial construction or interpretation." Coleman v. Gurwin , 443 Mich. 59, 65, 503 N.W.2d 435 (1993). Therefore, we start by examining the words of the statute, which "should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute." People v. Zajaczkowski , 493 Mich. 6, 13, 825 N.W.2d 554 (2012). See also Harris , 499 Mich. at 435, 885 N.W.2d 832. Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 515, 821 N.W.2d 117 (2012).

"Any issues relating to the soundness of the policy underlying the statute or its practical ramifications are properly directed to the Legislature." Maier v. Gen. Tel. Co. of Mich. , 247 Mich. App. 655, 664, 637 N.W.2d 263 (2001). "[W]e may not read into the statute what is not within the Legislature's intent as derived from the language of the statute." Robinson v. City of Lansing , 486 Mich. 1, 15, 782 N.W.2d 171 (2010) (quotation marks and citation omitted).

MCL 500.3135(2)(c) provides, in relevant part:

(2) For a cause of action for damages pursuant to subsection (1) filed on or after July 26, 1996, all of the following apply:
* * *
(c) Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.

Section 3101, in turn, provides, "(1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance." MCL 500.3101(1). "Motor vehicle" is defined, for the purposes of Chapter 31 of the Insurance Code of 1956, as a "vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels." MCL 500.3101(2)(i). The definition of "motor vehicle" specifically excludes motorcycles. MCL 500.3101(2)(i)(i ).

Inasmuch as the statute explicitly excludes motorcycles from the definition of "motor vehicle," and therefore from the preclusive effect of MCL 500.3135(2)(c), the plain language of the statute unambiguously refutes the trial court's statutory interpretation. See Robinson , 486 Mich. at 15, 782 N.W.2d 171. Moreover, the trial court errantly relied on Braden , 100 Mich. App. at 529, 299 N.W.2d 65, for the proposition that, despite the explicit exclusion of motorcycles from the definition of "motor vehicle," uninsured operators of motorcycles are subject to the proscriptions of MCL 500.3135(2)(c). First, Braden is not binding on this Court given its age, MCR 7.215(J)(1), and second, Braden is factually and legally inapposite. In Braden , the plaintiff did not sue to recover noneconomic loss, as in this case, but instead filed a complaint "for property damage to his motorcycle resulting when it collided with an automobile owned and operated by [the] defendant." Braden , 100 Mich. App. at 525, 299 N.W.2d 65. The trial court held that, under MCL 500.3135, the defendant was not shielded from tort liability because the plaintiff was operating a motorcycle-not a "motor vehicle"-at the time of the accident. Id . On appeal, this Court reversed, holding that "[t]he exclusion of motorcycles from the [no-fault] act's definition of motor vehicles does not illustrate a legislative intent to exempt motorcyclists from the effect of the abolition of tort liability by § 3135." Id . at 529, 299 N.W.2d 65 (emphasis added). Defendant contends that this language means that the term "motorcycle" must be read into every provision of MCL 500.3135.

Importantly, however, the statute at issue in Braden was quite different from the one that exists today. See MCL 500.3135, as amended by 1979 PA 147. In Braden , the Court was solely concerned with the application of what is now MCL 500.3135(3). See Braden , 100 Mich. App. at 525-526, 299 N.W.2d 65. Subsection (2)(c) was not added to the statute until 1995-15 years after Braden . See MCL 500.3135, as amended by 1995 PA 222.

Subsection (3) provides, in pertinent part, "(3) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101 was in effect is abolished...." MCL 500.3135(3) (emphasis added). In other words, while Subsection (2)(c) addresses a party's right to recover damages, Subsection (3) deals with a party's exposure to tort liability. Specifically, Subsection (3) extinguishes tort liability for noneconomic losses for drivers of motor vehicles who carry proper insurance, apart from the exceptions found in MCL 500.3135(1). Subsection (3) has nothing to do with a plaintiff's right to recover damages and instead has everything to do with a defendant's liability, irrespective of the plaintiff or the plaintiff's mode of travel. Accordingly, it was irrelevant in Braden that the plaintiff was a motorcyclist because the defendant was, in any event, immune from tort liability for the type of damages the plaintiff sought. Braden , 100 Mich. App. at 529, 299 N.W.2d 65. Consequently, even if we were bound by Braden , our decision would not conflict with its essential holding. See Braden , 100 Mich. App. at 529, 299 N.W.2d 65.

In essence, defendants ask this Court to add language into Subsection (2)(c), such that it might read: "Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle [or motorcycle] the security required by section 3101 [or 3103] at the time the injury occurred." MCL 500.3135(2)(c) (emphasis added). To read the statute in that manner would require an impermissible judicial construction of an unambiguous statute. See Odom , 482 Mich. at 467, 760 N.W.2d 217, quoting Lash , 479 Mich. at 187, 735 N.W.2d 628. We decline defendants' invitation to so interpret an unambiguous statutory provision.

Defendants nevertheless contend that Subsection (2)(c) must apply to motorcycles because, although not required by § 3101, motorcycles are still required to be insured under MCL 500.3103, and public policy dictates that any operator of a motorcycle -like any operator of a motor vehicle-who has failed to obtain insurance coverage as required by law should be barred from recovering tort damages. Indeed, § 3103 provides, in pertinent part, "(1) An owner or registrant of a motorcycle shall provide security against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by a person arising out of the ownership, maintenance, or use of that motorcycle." MCL 500.3103(1).

However, it is for the Legislature, not this Court, to address the policymaking considerations that are inherent in statutory lawmaking. See Maier , 247 Mich. App. at 664, 637 N.W.2d 263 ; W.A. Foote Mem. Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 190 n. 16, 909 N.W.2d 38 (2017). Moreover, defendants' reliance on § 3103 hinders, rather than helps, their argument. The plain language of § 3103 demonstrates that when the Legislature intends for corollary rules to exist as between motor vehicles and motorcycles, it explicitly enacts those rules. Therefore, for example, § 3101 creates a requirement that certain motor vehicles are insured, and § 3103 creates a similar requirement for motorcycles. See MCL 500.3101 ; MCL 500.3103. Similarly, MCL 500.3113, which limits the entitlement of certain persons to recover personal protection insurance benefits, contains the exact language that defendants would have this Court to read into MCL 500.3135(2)(c) :

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:
* * *
(b) The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect. [ MCL 500.3113 (emphasis added).]

The Legislature's omission of a term in one portion of a statute that is contained in another should be construed as intentional. Michigan v. McQueen , 293 Mich. App. 644, 672, 811 N.W.2d 513 (2011). Similarly, the Legislature's use of different terms suggests different meanings. U.S. Fidelity Ins. & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing ), 484 Mich. 1, 14, 795 N.W.2d 101 (2009).

The language of MCL 500.3135(2)(c) is unambiguous: individuals injured while operating a motor vehicle that is both owned by them and uninsured in violation of MCL 500.3101 are not entitled to recover damages. Motorcycles are not motor vehicles under the no-fault act. MCL 500.3101(2)(i)(i ). Accordingly, MCL 500.3135(2)(c) does not limit the right of motorcyclists to recover damages.

Plaintiffs contend in the alternative that, even assuming that MCL 500.3135(2)(c) applies to motorcyclists, the trial court nonetheless erred by dismissing all of plaintiffs' claims because Subsection (2)(c) only limits actions for noneconomic damages. Having held that Subsection (2)(c) does not apply to motorcyclists, however, we need not reach that question, which in any event was not raised below until reconsideration. See Vushaj v. Farm Bureau Gen. Ins. Co. of Mich. , 284 Mich. App. 513, 519, 773 N.W.2d 758 (2009).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

BECKERING and RONAYNE KRAUSE, JJ., concurred with BOONSTRA, P.J. 
      
      At the time, Subsection (3) was codified as Subsection (2). MCL 500.3135(2), as amended by 1972 PA 294; MCL 500.3135(3). The relevant language analyzed in Braden , however, is verbatim to the language of Subsection (3) today. See MCL 500.3135(3) ; Braden , 100 Mich. App. at 526, 299 N.W.2d 65.
     
      
      Even assuming arguendo that Braden did support defendants' reading of MCL 500.3135(2), we are mindful that clear statutory language must prevail when "caselaw clearly misinterprets the statutory scheme at issue." Covenant Med. Center, Inc. v. State Farm Mut. Auto. Ins. Co. , 500 Mich. 191, 201, 895 N.W.2d 490 (2017) ; see also W.A. Foote v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 190 n. 16, 909 N.W.2d 38 (2017).
     