*1 Reddig v Mut Ins Co MICHIGAN MUTUAL AUTO INSURANCE COMPANY v REDDIG 24, 1983, Docket No. 63998. Submitted March at Detroit. Decided 11, 1983. applied appeal Leave to for. October driving Uwe killed when was the automobile she was was by Gregory Szyman- struck an uninsured automobile driven Reddig, personal representative ski. Marlene of the estate of brought Reddig, wrongful against Szyman- Uwe a death action Michigan Company, seeking ski and Mutual Auto Insurance to liability coverage Szymanski establish on the basis of an policy George Baubie, issued to and insurance Diane relatives Szymanski with whom resided. The extended to using an insured non-owned automobile not furnished for the regular Michigan brought use. insured’s Mutual then an action relief, declaratory seeking judicial determination of the availability coverage, naming insurance as Mar- defendants Reddig, Szymanski, lene and Dennis Elwart. The was Szymanski whether was the owner of the He automobile. agreed purchase paid part vehicle from Elwart and had purchase price. Elwart, however, registered of the was the owner and title holder at the time the accident. The Oakland Court, LaPlata, J., George Circuit H. held that was automobile, a conditional vendee and thus of the granted summary judgment Michigan and in favor of Mutual. Reddig appealed. Defendant Held: in statute effect at the time of the accident title, seller of an automobile to surrender the and certificate a sale which did not include a transfer of the title was void. Therefore, case, in this the sale to void and Elwart remained the owner of trial court the automobile. The ruling judgment. granting summary erred in otherwise Reversed remanded. J., Mackenzie, concurred in reversal on the there basis genuine disputes regarding are as to facts whether the material use, Szymanski’s automobile was furnished for ^[1] ^[2] 7A Am Jur 73 Am Jur 2d, 2d, References Summary Judgment Automobiles and for Points in Headnotes Highway §§ 27. Traffic 31.§ App 631 Opinion of the Court driving had an it with and whether he he was disputes possession. Where such factual immediate exist, precluded. summary judgment of the *2 — Ownership — Certificate of of Automobiles 1. Automobiles Title. ownership regarding the of of transfer the former statute Under vehicle, did not include a a sale of a vehicle which a motor and, in of title was void such circum- transfer the certificate of (MOL stances, 257.233[d]; the seller remained 9.1933[d]). by Mackenzie, J. Concurrence Judgment — — Judgments Summary Issue Fact. 2. Genuine genuine a trial a trier fact exists to be decided at A issue pleading of a factual the truth of material assertion where movant, deponent, depends credibility of a or aidant on the circumstances, and, judg- summary for under motion such granted. ment should not be Stephen Forhan J. Googasian, Hopkins & (by Hopkins), plaintiff.

Marston, Sachs, Nunn, Kates, & Kadushin Jr.), O’Hare, Barnes, P.C. David K defen- (by Reddig. dant Maher, P.J., R. M. and Mackenzie and

Before: Breighner,* M. B. JJ. trial appeal

Per Curiam. from the Defendants for sum- granting court’s order motion plaintiffs 117.2(3). to GCR mary judgment pursuant 22, 1978, Szy- Gregory On November defendant Nova, an driving manski was a 1972 Chevrolet uninsured car, another when he collided with vehicle, driver, killing Reddig. its Uwe Defendant Reddig, personal representative Marlene deceased, wrongful brought estate of the death * judge, sitting Appeals by assignment. on the Circuit Reddig Co Mut Ins v op the Court against action plaintiff. Plaintiff denied and instituted this declaratory relief action.

Plaintiff issued policy insurance George Baubie and Diane Baubie which was effect at the time of the accident. is the Diane brother of Baubie was a resident of the at Baubies’ household the accident. Marlene sought under recovery pursuant following to the provisions: following

"Persons Insured: The are insured under I: Part

"(b) respect automobile, with to a non-owned "(2) relative, any only respect private but with to a * * * passenger opera- automobile his actual * * * tion lieved to reasonably is with be- *3 be with the of the owner * * * scope permission within the of such " * * * 'non-owned automobile’ means an automobile not owned furnished for the use of either the named insured or a resident of the same household ** as the named insured *”.

The dispute between the parties was Szy- whether manski was the was, owner the If he then Nova. he could not be afforded coverage under "non- the owned automobile” clause reproduced above. At accident, the time the defendant Dennis Elwart registered the owner and title holder of the However, Nova. Elwart and Szymanski had earlier agreed that Szymanski purchase would the vehicle from Elwart for paid had on $100. $60 the purchase price and the car had been delivered Elwart, to Szymanski’s however, residence. not transferred the certificate of title to Szymanski 129 Mich the Court it. not He had also he could not locate

because of State. Secretary the the sale with registered 8, plain- granted trial court the April On ground the judgment summary motion tiff’s and thus a conditional vendee that 257.37; under MCL of the Nova the owner 9.1837.1 the erred in contend that trial court

Defendants summary judg- plaintiff’s the motion for granting facts, because, undisputed Szy- under ment not of the Nova at manski was yet had not accident as Elwart inasmuch title Szymanski. the certificate of delivered Co, 5; In Endres v Mara-Rickenbacker (1928), 219 NW 719 the Court considered a receiv- purchased who vehicle without person owner of of title was the that ing certificate The Court noted that the motor vehicle vehicle. written, the seller of a laws, as then that title to the certificate of motor vehicle deliver pun- for criminal and further purchaser anyone who failed to meet re- ishment pointed purpose out that quirement. containing those was to provisions of the statute automobiles, "discourage prevent stealing and to Mich 8. It public against crime”. 243 protect that, general cited the rule then " against protect public 'where statutes enacted to imposition, safeguard public fraud or or to health or morals, penalty, prohibition impose contain all ” Endres, supra, are contracts violation thereof void.’ " ** ** 1 'owner’ means: "(b) person legal A who holds the title a vehicle or in event a *4 subject agreement vehicle of an conditional sale lease right purchase upon performance thereof with stated vested of conditions agreement possession in the an and with immediate ** * in the vendee conditional vendee then such conditional * * * shall be deemed the owner.” Mich Mut Ins Co v 635 Opinion op the Court 8,p quoting Pliter, 386, Cashin v 389; 134 (1912). NW sale,

Since the unaccompanied by the delivery of title, the certificate was in violation of the statute, the Court held that it was void and that the seller remained the owner See, of the vehicle. also, Paletta, Karibian v 353, 357; (1983). 332 NW2d 484

Although the motor vehicle laws have been rewritten decided, since Endres was at the the accident involved in present case they require continued to the seller to surrender title, 9.1933(d).2 certificate of 257.233(d); MCL MSA They also it shall be a misdemeanor to fail to properly deliver the certificate. MCL 257.239; MSA 9.1939. We also perceive no change purpose of the statute. Consequently, we that, hold at the time accident, of the a salé of a motor vehicle which did not include a transfer of the certificate of title as required by the statute was void. Under circumstances, such the seller remained the owner.

In the present case, Elwart did not properly transfer the certificate of title before the date of the accident. The sale to Szymanski was, therefore, void and Elwart remained the owner. The trial The statute has since been amended 1980 PA 1. The old § gave option statute delivering the seller the the certificate of title purchaser, to either appropriate department transferee or within secretary the office of the requires of state. The delivery new statute purchaser to the or transferee: "The owner shall indorse on the back of the certificate of title an assignment of warranty the title with printed of title in the form the certificate with a security statement all interests in the vehicle or in accessories on the vehicle and deliver or cause the certificate to be purchaser mailed or delivered to the or transferee at the time of delivery purchaser to the or transferee of the vehicle. The certificate interest 9.1933(4). payment shall show any security or satisfaction of original 257.233(4): as shown on the title.” MCL *5 631 129 Mich

636 by Mackenzie, J. Concurrence ruling otherwise, and, that court erred summary judgment reason, reversed. is disposition light case, this decline In our we remaining claim. to address defendants’ proceedings consis- and remanded Reversed appellants. opinion. to with this Costs tent (concurring). the Mackenzie, I would reverse J. summary judgment there are on the basis that genuine disputes facts. as to material provisions that three deter- indicate (1) finding coverage: the crucial in minations are by the rela- must in fact be "non-owned” vehicle tive, (2) regular use, for his and not furnished (3) operated the the must been with vehicle have permission, reasonably the to be with or believed owner. appellant Szymanski to be

Even if found non-owner, to the car there is a as whether regular Elwart, had been "furnished for his use”. deposition, that in his stated vehicle he re- turned so could make over pairs diversely, and, not that the title was it could locate transferred because Elwart not title. The statement indicates certificate of former Szymanski’s not over for vehicle was turned regular latter the inference use whereas from statement is that it was. being

Whether the vehicle was with driven permission depends upon under- of the owner standing parties "permis- to the sale since encompasses sion” also the reasonable belief permission. it not was with if the Even vehicle turned use in over to for his permission vehicle, that he did not have use permis- if he had a reasonable belief that he had basis, sion to the 1972 on a limited use Nova Mich Mut Ins Co v by Mackenzie, Concurrence J. short, In would be afforded. there is a fact, genuine dispute as to a material for where truth depends of the material factual assertion movant, deponent, affiant, on the of a credibility genuine "there inheres a issue to be decided at a trial the trier of fact and a motion for summary Pointer, judgment granted”. cannot be Brown v (1973). 346, 354; NW2d *6 question Finally, right possession

an immediate must still be equal resolved. Possession does not the "immediate possession”, 257.37; as MCL affidavit, MSA 9.1837. The Szymanski attached to defendants’ motion for plain- reconsideration tiff’s motion for summary judgment, raises a fac- tual on this issue. Summary judgment was inappropriate, and defendants should not be pre- proving cluded from the specific facts which would entitle them to relief.

I also make no of the second determination issue.