Apperson v. Citizens Mut. Ins. Co., Docket No. 67621
| Decision Date | 06 February 1984 |
| Docket Number | Docket No. 67621 |
| Citation | 130 Mich.App. 799,344 N.W.2d 812 |
| Parties | Dempsey C. APPERSON, Plaintiff-Appellant, v. CITIZENS MUTUAL INSURANCE COMPANY, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Bernstein & Bernstein by Ronald J. Varga, Detroit, for plaintiff-appellant.
Franklin, Petrulis & Lichty, P.C. by Witold Sztykiel, Troy, for defendant-appellee.
Before MacKENZIE, P.J., WAHLS and WARSHAWSKY *, JJ.
Plaintiff appeals as of right from the trial court's October 10, 1982, order granting summary judgment in favor of defendant pursuant to GCR 1963, 117.2(3).
On September 27, 1980, plaintiff was struck and seriously injured by a wheel which flew off a vehicle during a "street stock" car race at the Flat Rock Speedway. Plaintiff was a spectator in the pit area at the time the accident occurred. The vehicle which lost the wheel was never identified.
At the time of the injury, neither plaintiff nor any member of his family residing with him had coverage under any automobile insurance policy providing personal injury protection (PIP) benefits. Plaintiff's claim for PIP benefits was assigned to defendant through the no-fault assigned claims office. Defendant denied the claim and plaintiff filed this lawsuit. The trial court granted defendant's motion for summary judgment under GCR 1963, 117.2(3), finding that defendant was not liable under the no-fault act because the street stock vehicles involved in the race were not "motor vehicles" within the meaning of the act.
The sole issue is whether the street stock vehicles involved in the race are motor vehicles within § 3101(2)(c) of the no-fault act, M.C.L. § 500.3101(2)(c); M.S.A. § 24.13101(2)(c). That section provides in part:
" 'Motor vehicle' means a vehicle, including a trailer operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels."
In order to come within the above statute, the vehicle must (1) be operated or designed for operation upon a public highway, (2) be powered by a source other than muscular power, and (3) have more than two wheels.
In this case, it is apparent that requirements (2) and (3) are met, and that the street stocks were not being operated upon a public highway at the time the incident occurred. The only question is whether they were "designed for operation upon a public highway".
Plaintiff argues that the street stocks were simply automobiles with superficial racing modifications. Plaintiff strenuously asserts that the vehicles, being automobiles, were obviously designed for use upon public highways and that the racing modifications do not change the essence of their design. We do not agree.
Defendant has submitted two affidavits which indicate the extent of the modifications on the cars involved in the street stock race. The affidavit of Scott Schultz, public relations and advertising manager of the Flat Rock Speedway, states that street stock vehicles must have all outside lights and glass removed and must be equipped with only one seat and a full roll cage. Schultz's affidavit further avers that the street stocks involved in the race during which plaintiff was injured were without lights, windshield wipers, turn signals and exhaust pipes. Defendant also submitted the affidavit of Carl Sprague, assistant starter of the race during which plaintiff was injured. Sprague's affidavit states that he observed the vehicle in question lose a wheel, but did not see the wheel strike plaintiff. Sprague's affidavit avers that, pursuant to Automobile Racing Club of America rules, the vehicle in question had no lights, no turn signals and no exhaust pipes. The affidavit further states that the vehicle involved had no...
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...was not within the meaning of "motor vehicle." Ebernickel, supra, 731-732, 367 N.W.2d 444. Similarly, in Apperson v. Citizens Mutual Ins. Co., 130 Mich.App. 799, 344 N.W.2d 812 (1983), the plaintiff, a spectator at a "street stock" car race, was injured by a wheel which flew off a vehicle i......
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