COA 366229 SHARON CALL V L & KJ ENTERPRISES LLC Opinion - Per Curiam - Published 11/18/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
SHARON CALL and JAMES CALL,
Plaintiffs,
FOR PUBLICATION
November 18, 2025
3:50 PM
and No. 366229
Manistee Circuit Court
FRANKENMUTH INSURANCE COMPANY, LC No. 20-17090-NO
Intervening Plaintiff-Appellant,
v
L & KJ ENTERPRISES, LLC, d/b/a FAMILY TIRE
SERVICE OF MANISTEE,
Defendant-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and YATES, JJ.
PER CURIAM.
Plaintiffs, Sharon and James Call, suffered injuries when their vehicle came in contact with
a tire that had fallen off a vehicle going in the opposite direction. The Calls received hundreds of
thousands of dollars in personal protection insurance (PIP) benefits from Frankenmuth Insurance
Company (Frankenmuth), which in turn sought recovery of that amount from defendant, L & KJ
Enterprises, LLC, d/b/a Family Tire Service of Manistee (Family Tire), asserting that Family Tire
improperly secured a tire while rotating the tires on the vehicle. The trial court awarded summary
disposition to Family Tire under MCR 2.116(C)(8), concluding that Frankenmuth’s claim against
Family Tire is barred by MCL 500.3116(2). That ruling was consistent with this Court’s opinion
in Citizens Ins Co v Pezzani & Reid Equip Co, Inc (On Remand), 202 Mich App 278; 507 NW2d
833 (1993), so we must affirm the decision. But if we were not bound by Pezzani, we would reach
the opposite result because we believe Pezzani was wrongly decided, so we call for the convening
of a special panel in accordance with MCR 7.215(J)(3) to consider whether Pezzani was correct in
affording preclusive effect to MCL 500.3116(2) to bar a claim against a nonmotorist tortfeasor.

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I. FACTUAL BACKGROUND
James Call was driving his car and Sharon Call was riding in the front passenger seat when
their vehicle ran into a tire that had fallen off a vehicle that was traveling in the opposite direction.
The Calls’ vehicle drove over the tire, causing the vehicle to go up into the air. The tire had fallen
off a vehicle driven by Deborah Dale, who had just picked up her car from Family Tire, which had
rotated the tires on Dale’s car. Dale had driven approximately one mile from Family Tire when
the tire fell off. As a result of the collision, the Calls suffered serious injuries and then sued Family
Tire seeking compensation for their injuries on a theory of common-law negligence.
Frankenmuth moved to intervene in the case as subrogee of plaintiffs, asserting that it was
the Calls’ automobile insurer and had paid PIP benefits of $381,760.17 on plaintiffs’ behalf due to
the collision. Frankenmuth sought to recover damages from Family Tire because Family Tire was
a nonmotorist tortfeasor. Family Tire objected, arguing that MCL 500.3116 barred Frankenmuth
from recovering damages on a subrogation claim, so it would be improper to permit Frankenmuth
to intervene in the case on the eve of trial. Frankenmuth responded that Family Tire would not be
prejudiced by Frankenmuth’s intervention and Family Tire misconstrued MCL 500.3116 because
that statute only applies to actions in which an insurer is seeking reimbursement from its insured’s
third-party tort recovery. The trial court granted Frankenmuth’s request to intervene, holding that
intervention would not cause undue delay or prejudice. But the trial court’s opinion and order did
not address whether MCL 500.3116 precluded Frankenmuth from asserting a claim against Family
Tire. Frankenmuth thereafter filed a complaint asserting a negligence claim against Family Tire.
Family Tire then moved for summary disposition under MCR 2.116(C)(8), claiming that
Frankenmuth’s subrogation claim was barred by MCL 500.3116. Family Tire asserted that, under
that statute, subrogation is only available in situations that do not exist in this case. Frankenmuth
opposed Family Tire’s summary disposition motion, insisting that MCL 500.3116 only addresses
a no-fault insurer’s right to pursue reimbursement from its insured, so the statute does not apply to
recoveries an insured would have against a nonmotorist tortfeasor. In reply, Family Tire contested
Frankenmuth’s argument that MCL 500.3116(2) only applies to reimbursement from the insured,
citing this Court’s opinion in Pezzani, 202 Mich App at 280, to support its argument. Family Tire
further contended that Frankenmuth must abide by the no-fault act by abstaining from pursuing a
common-law negligence claim.
Following oral argument, the trial court issued a written opinion and order granting Family
Tire summary disposition and dismissing Frankenmuth’s claim. The trial court decided that MCL
500.3116 barred Frankenmuth’s claim, which did not allege any of the three enumerated situations
that would permit recovery of benefits under that statute. Frankenmuth moved for reconsideration,
but the trial court denied that motion. This appeal of right followed.
II. LEGAL ANALYSIS
The sole issue on appeal is whether the trial court properly interpreted MCL 500.3116(2)
when it decided that that statute precluded Frankenmuth’s subrogation claim against Family Tire.
Frankenmuth argues that the statute does not bar its claim, so the trial court erred when it dismissed
that claim under MCR 2.116(C)(8). “We review de novo a trial court’s decision on a motion for
summary disposition.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665

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(2019). “A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
factual allegations in the complaint.” Id. A motion under MCR 2.116(C)(8) may be granted if “a
claim is so clearly unenforceable that no factual development could possibly justify recovery.” Id.
at 160.
Under MCL 500.3116(1), “[a] subtraction from [PIP] benefits must not be made because
of the value of a claim in tort based on the same accidental bodily injury.” But MCL 500.3116(2)
provides that “[a] subtraction from or reimbursement for [PIP] benefits paid or payable under this
chapter may be made . . . if recovery is realized on a tort claim” and (1) the tort claim arose “from
an accident that occurred outside this state,” (2) the tort claim was “brought in this state against
the owner or operator of a motor vehicle with respect to which the security required by section
3101 was not in effect,” or (3) the tort claim was “brought in this state based on intentionally
caused harm to persons or property[.]” MCL 500.3116(2). In all those circumstances, subtraction
or reimbursement “may be made . . . to the extent that the recovery realized by the claimant is for
damages for which the claimant has received or would otherwise be entitled to receive [PIP]
benefits.” Id. If PIP benefits have already been paid, “the claimant shall repay to the insurers out
of the recovery an amount equal to the benefits received, but not more than the recovery exclusive
of reasonable attorney fees and other reasonable expenses incurred in effecting the recovery.” Id.
In 1993, this Court issued a published opinion that discussed MCL 500.3116. Pezzani, 202
Mich App 278. There, the plaintiff was a no-fault insurer, which paid property protection benefits
to its insured after a motor vehicle accident. Id. at 279. The insurer brought a claim as subrogee
of its insured seeking damages from several defendants based on a theory of products liability. Id.
This Court ruled that MCL 500.3116 “essentially limits a no-fault insurer’s right to reimbursement
to recoveries from motorist tortfeasors or for intentional torts.” Id. at 280. This Court stated that
the insurer’s subrogation claim was barred by MCL 500.3116 because none “of the circumstances
that allow reimbursement under § 3116 are involved in this case[,]” i.e., the collision “at issue did
not occur out of state or involve either an uninsured motorist or an intentional tort.” Id.
In the 32 years since Pezzani was issued, it has rarely been cited as authority in the opinions
of this Court, although it was discussed in two unpublished opinions. McCarthy v Mich Dep’t of
Transp (On Remand), unpublished per curiam opinion of the Court of Appeals, issued April 4,
1997 (Docket No. 198951); Grange Ins Co of Mich v Benteler Auto Corp, unpublished per curiam
opinion of the Court of Appeals, issued June 22, 2017 (Docket No. 331082). In McCarthy, this
Court rejected the plaintiff’s claim that Pezzani was incorrectly decided and described Pezzani as
“precedentially binding,” but it did not explain why the plaintiff contended that “ ‘the Pezzani case
is absolutely incorrect . . . .’ ” McCarthy, unpub op at 3. In a concurring opinion, however, Judge
TAYLOR criticized Pezzani for failing to distinguish between motorist tortfeasors and nonmotorist
tortfeasors. McCarthy, unpub op at 3 (TAYLOR, J., concurring).
In Grange, the insureds were involved in a collision purportedly caused by a defective axle
manufactured by one defendant and installed by another defendant. Grange, unpub op at 1. The
insurer provided the insureds a substantial amount in PIP benefits. Id. at 1-2. Then the insurer, as
subrogee of the insureds, filed suit against the defendants, advancing claims of negligence, breach
of express and implied warranties, and violation of the Michigan Consumer Protection Act. Id.
at 2. The insurer argued that MCL 500.3116 only applies when a no-fault insurer claims a lien in
its insured’s third-party tort recovery against a tortfeasor. Id. Because the insurer filed a

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subrogation action standing in the shoes of its insured, it reasoned that MCL 500.3116 did not
apply. Id. The trial court dismissed those claims under MCR 2.116(C)(8) because they did not
state a claim on which relief could be granted. Id. Relying on Pezzani, this Court decided that the
insurer’s subrogation claims were governed by MCL 500.3116(2), so they failed as a matter of law
because they did not fall within any of the three situations described in the statute. Id. at 3-4. That
is, the collision “did not occur out of state or involve either an uninsured motorist or an intentional
tort.” See Pezzani, 202 Mich App at 280.
Here, Frankenmuth does not dispute that none of the three exceptions in MCL 500.3116(2)
applies. Therefore, if the statute governs the outcome of this case, Frankenmuth’s claim is barred.
But the language of MCL 500.3116(2) lends support to Frankenmuth’s contention that the statute
applies only when an insurer attempts to recover money from its insured. The phrase “subtraction
from” in MCL 500.3116(2) clearly refers to an insurer decreasing the amount it would be obligated
to pay to its insured on the basis of a recovery that the insured obtained from a third party. Further,
MCL 500.3116(2) addresses “reimbursement,” explaining that “reimbursement for [PIP] benefits
. . . may be made only to the extent that the recovery realized by the claimant is for damages for
which the claimant has received or would otherwise be entitled to receive [PIP] benefits.” MCL
500.3116(2). That statutory language—and specifically the reference to “the recovery realized by
the claimant”—supports Frankenmuth’s theory that the statute applies only to situations where an
insurer seeks reimbursement from its insured. The statute decrees that if PIP benefits “have already
been received, the claimant shall repay to the insurers out of the recovery an amount equal to the
benefits received, but not more than the recovery exclusive of reasonable attorney fees and other
reasonable expenses incurred in effecting the recovery.” Id. (emphasis added). That language
suggests that MCL 500.3116(2) only applies to subtraction from PIP benefits paid to an insured or
reimbursement from the insured after PIP benefits are received if and when that insured realizes a
recovery.
Frankenmuth recognizes that, despite the sparse analysis in Pezzani, 202 Mich App at 280,
the published opinion in Pezzani “offers some support for the circuit court’s decision in this case.”
But Frankenmuth aptly characterizes the Pezzani opinion as “confused and confusing,” and argues
that Pezzani “misstat[ed] the impact of § 3116” and also “failed to address the relevant preliminary
question . . . whether § 3116 even applied” to the case. Similarly, Judge TAYLOR commented that
“[w]hile [Pezzani] treats motorist and nonmotorist tortfeasors the same, it is devoid of analysis.”
McCarthy, unpub op at 3 (TAYLOR, J., concurring). Filling out the reasoning that should have led
to a different result in Pezzani, Judge TAYLOR explained:
[T]he policy to prevent set-off with a motorist tortfeasor (to eliminate motorist
versus motorist tort litigation which was the impetus for the no-fault act) is not
present with the non-motorist tortfeasor. Further, the prohibition of the set-off
provision in the no-fault act would appear to be confined to limiting set-off only in
the motorist versus motorist context. The reason for this is that the no-fault act is
a self-contained legislative scheme designed to deal with auto tort litigation which
suggests that i[t] was never intended to address traditional non-motorist third-party
tort actions. [Id.]
We are persuaded by the analysis of Judge TAYLOR concerning the inapplicability of MCL
500.3116 to Frankenmuth’s claim, but we are bound to apply the contrary holding in Pezzani, 202

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Mich App at 280, even though it is “devoid of analysis.” McCarthy, unpub op at 3 (TAYLOR, J.,
concurring). Thus, relying on the holding in Pezzani as we must, see MCR 7.215(J)(1), we affirm
the trial court’s summary disposition award to Family Tire under MCR 2.116(C)(8).1 But we call
for the convening of a special panel pursuant to MCR 7.215(J)(3) to consider whether the holding
in Pezzani should remain binding authority for interpreting the language of MCL 500.3116(2) to
preclude common-law negligence claims against nonmotorist tortfeasors.
Affirmed.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Christopher P. Yates
1 Frankenmuth contends that this Court need not follow Pezzani because it is incongruent
with decisions of our Supreme Court. Specifically, Frankenmuth insists that we must follow our
Supreme Court’s opinion in Bronner v Detroit, 507 Mich 158; 968 NW2d 310 (2021). In Bronner,
our Supreme Court characterized MCL 500.3116 as applicable when “the insurer is reducing its
liability to (or recovering from) its beneficiaries.” Id. at 175. Our Supreme Court noted in Bronner
that, “by providing a limited avenue by which a no-fault insurer can offset its liability to its own
beneficiary, [MCL 500.3116] implicitly denies other options at recovering from a beneficiary and
confirms the no-fault system’s focus on the relationship between insurers and their insureds and
beneficiaries—not the relationship between insurers and their vendors.” Id. Those passages seem
to reflect our Supreme Court’s belief that MCL 500.3116 only applies to reimbursement from an
insurer’s own insured. But our Supreme Court in Bronner was merely considering whether an
indemnification agreement in an insurance contract was void because it ran afoul of the purpose
of the no-fault act. Id. at 165. Its discussion of MCL 500.3116 was simply one example used to
illustrate the point that it made about the validity of the indemnification agreement. Id. at 175.
Consequently, the discussion about MCL 500.3116 in Bronner does not have any precedential
value. Wold Architects and Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006)
(explaining that “[s]tatements and comments in an opinion concerning some rule of law or legal
proposition not necessarily involved nor essential to determination of the case in hand, are,
however illuminating, but obiter dicta and lack the force of an adjudication”). Accordingly, we
must reject Frankenmuth’s invitation to eschew the precedent in Pezzani in favor of Bronner.

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