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143330 - Progressive Marathon Insurance Company v DeYoung

Progressive Marathon Insurance Company,
Nicholas S. Ayoub
(Appeal from Ct of Appeals
(Ottawa – VanAllsburg, J.)
Ryan DeYoung and Nicole L. DeYoung,
Kimberlee A. Hillock
Spectrum Heath Hospitals and Mary Free Bed Rehabilitation Hospital,
Richard E. Hillary II
Citizens Insurance Company of America,


​Ryan DeYoung has four drunk driving convictions and has not held a driver’s license since age 17. He was listed as an excluded driver on his wife’s no-fault insurance policy with Progressive Marathon Insurance Company; in addition, she had forbidden him to drive the car. Nevertheless, DeYoung took the car without her consent and, while intoxicated, crashed the car and was seriously injured.

DeYoung incurred medical expenses at Spectrum Health Hospitals and Mary Free Bed Rehabilitation Hospital and sought personal protection insurance benefits from Progressive, but the insurer denied the claim. Progressive filed a declaratory judgment against the DeYoungs, seeking a determination that Ryan DeYoung was not entitled to PIP benefits because, at the time of the accident, he was using a motor vehicle that he had taken unlawfully within the meaning of MCL 500.3113(a). That statute 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.”

Spectrum and Mary Free Bed intervened in the lawsuit, arguing that the “family joyriding exception” applied, and that DeYoung should be covered by the Progressive policy. Under the family joyriding exception, MCL 500.3113(a) does not apply to cases where the person taking the vehicle unlawfully is a family member doing so without the intent to steal, but for joyriding purposes. The trial court ruled that family joyriding did not apply in this case, because DeYoung was listed on the policy as an excluded driver.

But in an unpublished opinion, the Court of Appeals reserved and remanded the case to the trial court, holding that, because the named driver exclusion did not by its terms apply to the no-fault policy’s PIP coverage, the family joyriding exception applied under existing precedent. The panel added that its members were “acutely aware” that the family joyriding exception has no basis in MCL 500.3113(a). “[W]ere we writing on a clean slate, we would not adopt such an exception,” the panel members explained. But the judges concluded that they were constrained by prior case law to apply the family joyriding exception in this case. Progressive appeals.