STATE OF MICHIGAN
IN THE SUPREME COURT
OLIVER RAVENELL,
Supreme Court No. 164317
Plaintiff,
and Court of Appeals No. 348436
NGM INSURANCE COMPANY,
Wayne County Circuit Court
Plaintiff-Appellee, Nos. 17-009231-NF
16-006161-NF
v.
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
__________________________________________/
DEFENDANT-APPELLANT AUTO CLUB’S BRIEF IN REPLY
TO PLAINTIFF-APPELLEE NGM’S SUPPLEMENTAL BRIEF (MOAA)
IN SUPPORT OF ITS RESPONSE TO THE APPLICATION FOR LEAVE TO APPEAL
PROOF OF SERVICE
GARAN LUCOW MILLER, P.C.
DANIEL S. SAYLOR (P37942)
Attorneys for Defendant-Appellant,
Auto Club Insurance Association
1155 Brewery Park, Ste. 200
Detroit, Michigan 48207-2641
(313) 446-5520
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TABLE OF CONTENTS
Page
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement of the Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Argument
I. The Court should reject NGM’s primary contention that,
solely for cases involving Michigan no-fault PIP claims, the
“mere volunteer” rule should be specially excised from
equitable subrogation law since the no-fault act is so
“complex” and “confusing.”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. NGM’s attempt to impute fault on ACIA for purportedly
sharing NGM’s “mistaken belief” that NGM owed benefits
to Ravenell is utterly without merit, NGM did pay benefits
to a “legal stranger” to its policy, and any examination of the
equities in this instance leaves NGM unentitled to
subrogation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Relief Requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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INDEX OF AUTHORITIES
Cases Page(s)
American Family Mut Ins Co v United States,
2021 WL 1392999, unpublished opinion of the US District Court
for the Western District of Wisconsin, No. 20-cv-525-jdp, April 13, 2021.. . 10, 11
Esurance Prop & Cas Ins Co v Mich Assigned Claims,
507 Mich 498; 968 NW2d 482 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 7, 11
Celina Mutual Ins Co v Lake States Ins Co,
452 Mich 84; 539 NW2d 834 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Federal Ins Co v Hartford Steam Boiler Ins Co,
415 F3d 487 (CA6, 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Stoddard v Citizens Ins Co of America,
249 Mich App 457; 643 NW2d 265 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutes
2019 PA 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
MCL 500.2236(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MCL 500.3114(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 9
MCL 500.3114(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
MCL 500.3114(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
MCL 500.3114(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
MCL 500.3114(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
MCL 500.3115(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 10
Other Authorities
Restatement (Third) of Restitution and Unjust Enrichment (2011)
§24 (Equitable Subrogation).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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STATEMENT OF THE QUESTION PRESENTED
The Court of Appeals initially rejected Plaintiff NGM’s
equitable subrogation claim on grounds that it paid PIP
benefits as a “mere volunteer,” since neither NGM’s policy
nor the No-Fault Act imposed coverage on NGM. The Court
then reversed itself, on remand from this Court to
reconsider its opinion in light of Esurance v MACP, 507
Mich 498 (2021), by holding that the “mere volunteer” rule
does not apply when an insurer pays benefits by mistake.
In doing so, did the Court of Appeals clearly misconstrue
Esurance, interpreting this Court’s opinion as effectively
erasing the “mere volunteer” doctrine from Michigan’s
equitable subrogation law, by equating the “mistaken”
payment of benefits in that case–in which the insurer’s belief
that it was obligated to pay them was legitimately based on
an apparently valid contract whose terms mandated
payment–with the diametrically opposite circumstances of
this case, in which NGM inexcusably erred in its basic
coverage determination and thus gratuitously paid benefits
when at all times there was no legal premise for it to do so?
Defendant-Appellant Auto Club Insurance Association answers, “Yes.”
Plaintiff-Appellee NGM Insurance Company would answer, “No.”
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REPLY ARGUMENT
I. The Court should reject NGM’s primary contention that, solely for
cases involving Michigan no-fault PIP claims, the “mere volunteer”
rule should be specially excised from equitable subrogation law
since the no-fault act is so “complex” and “confusing.”
The Court has posed the question concerning the extent to which the reasonableness
of an insurer’s mistaken belief that it was required to pay a claim is a factor in determining
whether the insurer is entitled to equitable subrogation. In its response, Defendant-Appellee,
Auto Club Insurance Association (“ACIA”), has emphasized that the usual circumstance in
which a claim founded on equitable subrogation arises is where the paying insurer does have
a legal basis for having made the payment, then seeks reimbursement from another obligor
(e.g., another insurer) whose obligation to pay is higher in priority. In such a case, the first
insurer is not a “mere volunteer.”
The “mere volunteer” issue emerges only when the first insurer issues payment when
it did not have any actual obligation to do so. Why would any company do that? As ACIA
has shown, an insurer might have issued payment based on the factual information it had at
the time, which, if true, legally required the payment, only to learn later that the facts were
materially different. E.g., Esurance Prop & Cas Co v Mich Assigned Claims, 507 Mich 498;
968 NW2d 482 (2021); Federal Ins Co v Hartford Steam Boiler Ins Co, 415 F3d 487 (CA
6, 2005). Such a “mistaken” payment is regarded as justifiable, or “reasonable,” and would
not render the payer a “mere volunteer” – unless the insurer’s ignorance of the true facts,
under the circumstances, was inexcusable. One might even regard a payment made purely
on the basis of a mistake of law as sufficiently excusable to avoid the label of “mere
volunteer,” as illustrated by the Restatement in its example of an insurer that, on behalf of
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its insured, promptly pays a loss that actually is covered according to the terms of its policy,
although legal research then reveals that the jurisdiction imposes an exclusion on such
claims. See, Defendant ACIA’s Supplemental Brief, pp. 8-9, citing Restatement (Third) of
Restitution and Unjust Enrichment (2011), §24 (Equitable Subrogation), Illustration No. 12,
p 6. As described, the particular facts in that instance indicate that the mistaken payment
could be deemed excusable.
Yet there are mistaken payments that are not justifiable or sufficiently “reasonable”
to avoid application of the “mere volunteer” label. Contrary to the suggestion advanced by
Plaintiff-Appellee NGM, the “mere volunteer” rule does not exist for those instances (of
which there are probably none) in which the insurance company’s payment “is altruistic such
as when a person decides to make a substantial contribution to a GoFundMe account when
a child is diagnosed with terminal cancer, for example.” (NGM’s Supplemental Brief,
2/3/2023, pp. 15-16). Rather, it may be presumed that any time an insurer issues payment
on a claim, it does so with a belief that it is obligated (or forced by circumstances) to do so.
When it turns out that such was not the case – i.e., the belief is later determined to have been
erroneous or “mistaken” – then if the “mere volunteer” rule means anything at all, the
question necessarily becomes whether the mistaken belief was justifiable, or excusable, or
sufficiently “reasonable,” under the circumstances.
The position now being advanced by NGM–concerning the extent to which the
reasonableness of an insurer’s mistaken belief that it was required to pay a claim is a factor
in determining whether it is entitled to equitable subrogation–is that it should not be a factor
at all, but only in cases of involving claims for first party benefits under the Michigan no-
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fault act. Thus, while NGM has never disputed that the “mere volunteer” doctrine generally
is still a part of equitable subrogation law in Michigan, it asks the Court to carve out an
1
exception to the rule for no-fault PIP cases because such claims are so difficult.
But NGM’s argument in support of the notion is fatally unpersuasive. NGM argues
that the insurance contract is irrelevant and unreliable, that determining one’s coverage for
no-fault PIP benefits is based solely on the statute, and that the statute is incomprehensibly
complicated. These premises are simply false.
In its description of how to work through the statutory priority provisions, NGM
seems to have gone out of its way to make them seem hopelessly complicated (NGM’s
Supplemental Brief, pp. 4-8), when in fact the process is quite simple. If the person was
injured while occupying a motor vehicle, you start with MCL 500.3114(4) (“... a person
suffering accidental bodily injury arising from a motor vehicle accident while an occupant
of a motor vehicle shall claim [PIP] benefits from insurers in the following order of
priority...”) (emphasis added), and if the injured person was not occupying a motor vehicle,
you start with MCL 500.3115(1) (“... a person who suffers accidental bodily injury while not
an occupant of a motor vehicle shall claim [PIP] benefits from insurers in the following order
of priority...”) (emphasis added). (Motorcycle occupants are a special case – their analysis
2
starts at MCL 500.3114(5).)
This Court made this clear in Esurance, 507 Mich at 511, by referring to the
1
“mere volunteer” rule as one of the “two prongs” of equitable subrogation, citing previous
Supreme Court opinions.
As this case arises out of an accident that occurred in 2014, all cites and quotations
2
are to the version of the statute that preceded the 2019 no-fault reforms, 2019 PA 21.
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Since Oliver Ravenell was a pedestrian, his case is determined by §3115(1) (emphasis
added):
Sec. 3115. (1) Except as provided in section 3114(1), a person
who suffers accidental bodily injury while not an occupant of a
motor vehicle shall claim personal protection insurance benefits
from insurers in the following order of priority:
(a) Insurers of owners or registrants of motor vehicles
involved in the accident.
(b) Insurers of operators of motor vehicles involved in the
accident.
Under this provision, subject to whether the exception in the opening phrase applies, Mr.
Ravenell would claim his benefits under sub-section (1)(a) – which would be ACIA, the
insurer of Thaddeus Stec, owner of the involved vehicle. So the question becomes, based
on the opening phrase, whether MCL 500.3114(1) identifies any coverage. It provides:
Sec. 3114. (1) Except as provided in subsections (2), (3), and
(5), a personal protection insurance policy described in section
[3]
3101(1) applies to accidental bodily injury to the person named
in the policy, the person’s spouse, and a relative of either
domiciled in the same household, if the injury arises from a
motor vehicle accident. ...
This provision focuses on the policy itself (proving that the policy contract is, in fact,
relevant), and establishes that it qualifies as the applicable policy a “person named in the
policy” (i.e., the named insured), and likewise to that person’s spouse or a relative “domiciled
in the same household”.
If applicable coverage is identified under §3114(1), this opening phrase would require
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a check of these three sub-sections to see whether there is another policy, still-higher in priority, that
applies. In this instance, since no coverage under §3114(1) is identified, such reference is not
necessary. In any event, none of the three exceptions would apply. Subsection (2) concerns
occupants of motor vehicles operated in the business of transporting passengers, subsection (3)
concerns occupants of employer-provided vehicles, and as indicated, subsection (5) concerns persons
occupying a motorcycle. MCL 500.3114(2), (3), and (5).
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Under this process, does the NGM policy apply to Oliver Ravenell’s loss? No. The
“person named in the policy” (i.e., NGM’s named insured) is “Omega Appraisals, LLC.”
Since this entity is not Oliver Ravenell, and neither is Oliver Ravenell the spouse or a
resident relative of “Omega Appraisals, LLC,” this policy does not apply. And since the
reference to §3114(1) yielded no applicable policy, the result remains with §3115(1), which
identified the ACIA policy as the applicable coverage. It is no more complicated than that.
But contrary to NGM’s basic contention that the policy contract is unreliable and
might lead you astray, the result under the NGM contract is no different. NGM intimates that
an insurer might well see one result under the terms of its policy, but find out that the
Michigan no-fault act dictates a different result. But this is not true. Policies are specifically
designed to be in harmony with the requirements of the no-fault act. Indeed, insurers like
NGM are required to submit their proposed policy forms to the Department of Insurance and
Financial Services (“DIFS”) for the very purpose of making sure they conform to the
provisions of the no-fault act. MCL 500.2236(1) (“[A]n insurer shall not deliver or issue for
delivery in this state a basic insurance policy form ... or endorsement form ... unless a copy
of the form is filed with the department and approved by the director as conforming with the
requirements of this act and not inconsistent with the law.”)
And, sure enough, applying the terms of the NGM endorsement for Michigan PIP
coverage in this instance reaches the exact same result as the one achieved under the statute.
In its contract, NGM promises to pay Michigan PIP benefits to anyone qualifying as an
“insured” if injured in a motor vehicle accident:
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A. Coverage
We will pay Personal Injury Protection benefits to or for an
“insured” who sustains “bodily injury” caused by an “accident”
and resulting from the ownership, operation, maintenance or use
of an “auto” as an “auto.” These benefits are subject to the
provisions of Chapter 31 of the Michigan Insurance Code.
(Exh. 15 – NGM policy, PIP endorsement, Page 1 of 4, Apx. 92) (emphasis added). Under
this provision, the key question becomes whether Oliver Ravenell qualified as an “insured”
under this PIP endorsement. The answer is found on the next page:
B. Who Is An Insured
1. You or any “family member”.
2. Anyone else who sustains “bodily injury”;
a. While “occupying” a covered “auto”;
b. As the result of an “accident” involving any other
“auto” if that “auto” is a covered “auto” under the
Policy’s Covered Autos Liability Coverage; or
c. While not “occupying” any “auto” as a result of
an “accident” involving a covered “auto”.
(Exh. 15 – NGM policy, PIP endorsement, Page 2 of 4, Apx. 93). Under this provision in the
NGM commercial auto policy endorsement, Oliver Ravenell is not “You” since he is not
“Omega Appraisals, LLC” – the Named Insured on the policy – nor could he be a “family
member” (i.e., a relative of the Named Insured in the same household). Ravenell does,
however, qualify as “anyone else,” but he was not occupying a “covered ‘auto’” and no
“covered ‘auto’” was involved in his accident. Accordingly, Ravenell did not qualify as an
“insured” under the policy’s PIP endorsement.
Thus, entirely independent of the no-fault act (yet entirely consistent with it), the
NGM contract did not extend PIP coverage to Oliver Ravenell. This was true when NGM
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first examined the claim and decided to honor it, and this remained true at all times thereafter
– no new facts ever emerged. And this was readily apparent merely by examining the PIP
endorsement’s “Who Is An Insured” provision and the policy declarations’ “Named Insured”
and “covered auto” designations. NGM’s voluntary payment of benefits to Oliver Ravenell
was made when there was not even an “arguable duty to pay.” Esurance, 507 Mich at 504.
Nor did exigent circumstances exist that might have compelled such payment. Since NGM
paid benefits with no reasonable basis for believing that it was required to do so, it was a
“mere volunteer” and obtained no right of subrogation.
II. NGM’s attempt to impute fault on ACIA for purportedly sharing
NGM’s “mistaken belief” that NGM owed benefits to Ravenell is
utterly without merit, NGM did pay benefits to a “legal stranger”
to its policy, and any examination of the equities in this instance
leaves NGM unentitled to subrogation.
In its attempt to minimize the great extent of its culpability for voluntarily paying
Oliver Ravenell’s PIP claim over the course of one-and-half years when, in fact, it had no
obligation whatsoever to do so, NGM falsely asserts that ACIA shared in the erroneous
impression of NGM’s legal duty. (NGM Supplemental Brief, p. 10, p. 14 – “[I]t was not just
NGM that was under the erroneous impression of NGM’s legal duty, but ACIA was as well”;
and p. 17 – referring to “NGM and ACIA” being “of the mistaken belief that NGM owed
benefits to Ravenell”). There is simply no factual foundation for this fairly bizarre assertion.
In fabricating this argument point, NGM points to an innocuous excerpt from the end
of ACIA claims adjuster George Belmore’s deposition (see, NGM Supplemental Brief, p. 9).
Mr. Belmore explained in his deposition how he learned via an “ISO” search of a claim made
on a commercial policy issued by NGM. He detailed the ensuing telephone conversation he
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had with “Dan,” an NGM representative – less than a month after the accident – in which it
was confirmed that NGM had opened a PIP claim covering Ravenell’s loss. NGM points to
a question at the end the deposition regarding, since this apparently was a commercial policy,
whether Mr. Belmore asked Dan a follow-up question, “[W]ell, Dan, if it is a commercial
policy, how do you know they are going to cover it?” Mr. Belmore answered, “No,” he did
not ask such a follow-up question. (Exh. 9 – dep. of G. Belmore, p. 34, Apx. 94, quoted at
NGM Supplemental Brief, p. 9).
From this exchange, NGM apparently infers–erroneously–that the commercial nature
of the policy meant that Ravenell never could have been owed PIP benefits from NGM. And
based on this false notion, NGM apparently would hold Mr. Belmore – ACIA – as equally
culpable in the basic coverage error committed by NGM. But contrary to NGM’s premise,
it makes no difference whether the PIP coverage is provided in a commercial auto policy or
a personal lines policy.
True, a personal lines policy will always have an individual person listed as a Named
Insured on the policy, while the Named Insured on a commercial policy often will be a
corporate entity – but this certainly is not always the case. The Named Insured (“You”) on
a commercial lines policy may well be a living, individual person doing business as a sole
proprietor, “doing business as” some assumed name. See, Celina Mutual Ins Co v Lake
States Ins Co, 452 Mich 84; 539 NW2d 834 (1996), and Stoddard v Citizens Ins Co of
America, 249 Mich App 457; 643 NW2d 265 (2002) (both cases involved commercial auto
policies, both involved sole proprietorship “d/b/a” businesses). In such instances the
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policyholder is a living person, and thus would have direct, portable coverage for PIP as a
4
Named Insured (“You”) (or, as §3114(1) puts it, as the “person named in the policy”); and,
likewise, the person’s family members (or, as §3114(1) puts it, relatives “domiciled in the
same household”) likewise has direct, portable coverage. See, Stoddard, supra (wife of the
named insured, a sole proprietor business owner, was covered for first party UM/UIM
benefits in the commercial auto policy).
In short, Mr. Belmore may have known that the NGM policy was a commercial lines
policy, but that point was immaterial. Critically, what he knew–as he was directly assured
of the fact by an NGM representative (as well as by Ravenell’s attorney)–was that Mr.
Ravenell’s PIP benefits were being covered by NGM, so ACIA need not be concerned about
it. Indeed, Ravenell never even submitted a claim for PIP benefits to ACIA (until a year-and-
a-half had passed and NGM filed this lawsuit against ACIA). ACIA thus did not share in
NGM’s unfounded, erroneous belief that it owed PIP benefits to Ravenell. The Court should
reject NGM’s attempt to deflect its culpability in this manner.
NGM also takes issue with ACIA’s description of the PIP payments made by NGM
to Ravenell as voluntary payments to “a legal stranger.” (NGM’s Supplemental Brief, pp. 9,
11-12). But this description is accurate. The reference to Oliver Ravenell as a “stranger” to
the NGM policy does not just mean that his name is not on the policy. His name obviously
“Portable coverage” refers to the fact that the person is covered without regard to
4
whether a “covered ‘auto’” on the policy is involved. See, again, the “Who Is An Insured” provision
in the NGM commercial auto policy’s PIP endorsement (quoted supra, p. 6). Those qualifying as
an “Insured” under B.2 require the involvement of a “covered ‘auto’”; but if the Named Insured on
the commercial policy is an individual person, then there will also be those qualifying as an
“insured” under B.1 – “You” and any “family member”. The PIP coverage for these individuals does
not depend on a “covered ‘auto’” being involved; their coverage is “portable.”
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does not appear on the ACIA policy, either, yet Ravenell was not a “stranger” to the ACIA
policy. Even though Ravenell is not identified by name on the ACIA policy, he is identified,
by description, as a person under the ACIA policy’s “Who Is An Insured” provision in its PIP
coverage section. Accord, MCL 500.3115(1)(a).
5
But Ravenell was always a legal stranger to the NGM policy. He was not identified
by name in the policy, but neither was he identified by description for potential coverage.
As detailed previously in this brief, Ravenell does not fall within any of the NGM’s terms
of coverage. ACIA, therefore, rejects NGM’s assertion that Ravenell was as much a
“stranger” to the ACIA policy as he was to NGM’s policy. (NGM’s Supplemental Brief,
pp. 12-13). ACIA stands by its statement, therefore, that “Ravenell was a legal stranger to
NGM, not just after-the-fact by application of some legal fiction [as in Esurance, supra], but
at all times. No new facts emerged; the policy never covered him, and never even had the
appearance of covering him.” (ACIA’s Application for Leave to Appeal, p. 23). Yet NGM
confirmed for itself that it covered Ravenell for PIP benefits, and willingly paid those
benefits for a year-and-a-half after assuring ACIA that it was doing so.
NGM cites the case of American Family Mut Ins Co v United States, 2021 WL
1392999, unpublished opinion of the US District Court for the Western District of
Wisconsin, No. 20-cv-525-jdp, April 13, 2021 (Exh. C to NGM’s Supplemental Brief),
which held that the insurer that paid a liability loss on behalf of its insured, a US postal
The ACIA policy appears not to be included in the Supreme Court record, but
5
assuming the ACIA provision is equivalent to the “Who Is An Insured’ provision in the NGM
policy’s PIP endorsement, Ravenell would be identified as one “who sustains ‘bodily injury’ while
not ‘occupying’ any ‘auto’ as a result of an ‘accident’ involving a covered ‘auto’.” (See the NGM
“Who Is An Insured” provision, clause B.2.c., quoted supra, at p. 6.)
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service worker, was not a “mere volunteer” even though the United States was actually
responsible for the payment under the Federal Tort Claims Act. NGM contends that the case
is similar to this one. But the case is materially distinguishable.
Not only was the tortfeasor in American Family Mut Ins Co actually the “insured” of
the plaintiff-insurer (and thus materially distinguishable on that basis alone), but in that case
6
there was a tangible dispute between the plaintiff-insurer and the USPS over the coverage
question, with the plaintiff-insurer having sent multiple letters over the course of six months
“asking whether USPS would cover the accident,” with no response from the USPS, before
the plaintiff-insurer gave up and paid, then sued the USPS for reimbursement. Id., at *6-7.
By contrast, ACIA had proactively contacted NGM–mere weeks following the accident–to
inquire as to whether the PIP benefits were being paid, and stood down only after having
been assured, by NGM, that NGM was handling them. The cases are not comparable.
In sum, the when considering the reasonableness of NGM’s mistaken belief that it was
required to pay Ravenell’s PIP claim, the Court should conclude only that there was a total
absence of “reasonableness.” Instead, by its failure to examine either the terms of its own
contract or the governing terms of the Michigan no-fault act, where examining either of them
would clearly have revealed the lack of any such requirement to pay, NGM exhibited only
culpable negligence. No “balancing of equities” is warranted here under these
circumstances.
“When an insurer pays expenses on behalf of its insured pursuant to an insurance
6
contract, it is not doing so as a volunteer.” Esurance, 507 Mich at 511.
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And besides, in any such consideration of the “equities,” the Court will recognize that
ACIA did nothing wrong. NGM, of course, has no direct claim against ACIA; the question
is whether it acquired a claim against ACIA, once possessed by Oliver Ravenell, via
equitable subrogation, by virtue of its payment of the PIP benefits that ACIA otherwise
would have owed. ACIA submits that NGM did not become subrogated to Ravenell’s claim
because the “mere volunteer” rule is still one of the pillars of Michigan’s law of equitable
subrogation. And where NGM took it upon itself to accept coverage for this loss, assured
ACIA that it had done so, then willingly paid Ravenell his benefits without any semblance
of a contractual or statutory basis for believing it was required pay them, NGM was a
volunteer.
RELIEF REQUESTED
For all the foregoing reasons, and those detailed in its previous briefs, Defendant-
Appellant, AUTO CLUB INSURANCE ASSOCIATION, respectfully requests that the Court
reverse the judgment of the lower courts and direct that summary disposition be granted in
favor of Defendant Auto Club.
Respectfully submitted,
GARAN LUCOW MILLER, P.C.
By: /s/ Daniel S. Saylor
DANIEL S. SAYLOR (P37942)
Attorneys for Defendant-Appellant,
Auto Club Insurance Association
1155 Brewery Park, Ste. 200
Detroit, Michigan 48207-2641
(313) 446-5520
March 10, 2023 dsay[email protected]
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CERTIFICATE OF COMPLIANCE
The undersigned counsel for Defendant-Appellant, AUTO CLUB INSURANCE
ASSOCIATION, certifies pursuant to MCR 7.312(A), incorporating MCR 7.212(G), that this
reply brief contains 3,613 words, including headings, footnotes and quotations, but excluding
caption, tables and signature. Accordingly, the filing of this brief is accompanied by a
motion for leave to exceed the word-count limit of 3,200 words.
GARAN LUCOW MILLER, P.C.
/s/ Daniel S. Saylor
DANIEL S. SAYLOR (P37942)
Attorneys for Defendant-Appellant
Auto Club Insurance Association
1155 Brewery Park, Blvd. Ste. 200
Detroit, MI 48207-2641
(313) 446-5520
March 10, 2023
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STATE OF MICHIGAN
IN THE SUPREME COURT
OLIVER RAVENELL,
Supreme Court No. 164317
Plaintiff,
and Court of Appeals No. 348436
NGM INSURANCE COMPANY,
Wayne County Circuit Court
Plaintiff-Appellee, Nos. 17-009231-NF
16-006161-NF
v.
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
__________________________________________/
PROOF OF SERVICE
DANIEL S. SAYLOR, on behalf of Defendant-Appellant, Auto Club Insurance
Association, certifies that on March 10, 2023, he electronically filed said Defendant-
Appellant’s Brief in Reply to Plaintiff-Appellee NGM’s Supplemental Brief (MOAA) in
Support of Its Response to the Application for Leave to Appeal, and this Proof of
Service, with the Clerk of the Supreme Court using the MiFile TrueFiling system, which will
notify and send copies of same by e-service to counsel for Plaintiff-Appellee NGM Insurance
Company, Mark T. Rajt, Esq., 29105 Buckingham Street, Ste. 8, Livonia, MI 48154, at
rajtlaw@aol.com.
/s/ Daniel S. Saylor
DANIEL S. SAYLOR
Document: NGM - Ravenell - Supp S Ct Reply Brief - MOAA 3-10-23.wpd
RECEIVED by MSC 3/10/2023 11:51:04 PM
