Priority for the payment of PIP benefits; MCL 500.3114(3); Employee-employer relationship; Totality of the circumstances test; Interpretation of an insurance policy; Effect of an endorsement; Distinguishing Besic v Citizens Ins Co of the Midwest; Whether there was an express conflict between the endorsement & the Coverage Form; Michigan Automobile Insurance Placement Facility (MAIPF)

The court held that the trial court properly ruled that plaintiff was an employee of defendant-Pergjoni Transport at the time of the accident, and thus, properly granted defendant-Farm Bureau’s motion for summary disposition. “With plaintiff being an employee of Pergjoni Transport and him being injured in a company vehicle, Pergjoni Transport’s insurer,” nonparty-Hudson, “was the insurer with the highest priority.” Also, because there was no coverage available under defendant-Great American’s policy, the trial court did not err by granting its motion for summary disposition. Plaintiff contended that the trial court erred when it granted defendant-MAIPF’s motion for summary disposition. However, the court held that he was “not entitled to any relief because he took the position in the trial court that once the priority dispute was resolved, the MAIPF could be dismissed.” The court found that his “position on appeal—that regardless of the eventual priority determination, summary disposition was not warranted—is contrary to his position in the trial court.” Also, because he “took the position that summary disposition could be granted in favor of the MAIPF once the priority dispute was resolved, he cannot now complain after the trial court dismissed the MAIPF after resolving the priority dispute.” Thus, the court declined to address the underlying merits of his claim on appeal, and instead held that he “waived the issue because he expressly agreed that once the priority dispute was resolved, it would then be proper to dismiss the MAIPF from the case.” This was “exactly what the trial court did after it determined that Hudson was the highest priority insurer.” Plaintiff also asked the court to remand the “case to the trial court with instructions to impose sanctions against the MAIPF for the purported frivolous defenses and legal arguments it raised in the trial court.” It declined because he never moved for sanctions in the trial court, and the court noted that it “is an error-correcting court.” As to the trial court’s finding that he was Pergjoni Transport’s employee, “every factor, except for the fact that plaintiff received 1099 forms instead of W-2 forms,” supported the existence of an employee-employer relationship. The court found that “no reasonable minds could come to a different conclusion after considering the entirety of the circumstances.” Affirmed.