Auto Club Ins. Ass'n v. STATE AUTO. MUT. INS. CO.

• Citation: 671 N.W.2d 132,258 Mich. App. 328
• Decision Date: 29 October 2003
• Docket Number: Docket No. 239489.
• Parties: AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

671 N.W.2d 132

258 Mich. App. 328

AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Docket No. 239489.

Court of Appeals of Michigan.

Submitted July 8, 2003, at Detroit.

Decided September 2, 2003, at 9:00 a.m.

Released for Publication October 29, 2003.

Schoolmaster, Hom, Killeen, Siefer & Arene (by Renee Ballard), Detroit and John A. Lydick, of counsel, Bingham Farms, for the plaintiff.

Condit, McGarry & Schloff, P.C. (by Michael F. Condit), Bloomfield Hills, for the defendant.

Before: HOEKSTRA, P.J., and FITZGERALD and WHITE, JJ.

WHITE, J.

Plaintiff Auto Club Insurance Association (ACIA) appeals by leave granted the circuit court's order granting summary disposition in favor of defendant State Automobile Mutual Insurance Company (SAMIC) in this action for declaratory relief involving no-fault insurance. ACIA argues it presented sufficient evidence that the vehicle insured by SAMIC was involved in the collision with the injured claimant's motorcycle to withstand summary disposition on the question whether SAMIC is obligated to pay a pro rata share of the motorcyclist's no-fault personal injury protection (PIP) benefits. We agree, and reverse and remand for further proceedings.

I

This case arises out of a motorcycle accident that occurred on northbound M37, in a construction zone. A line of approximately five to six vehicles was stopped where a flagperson was holding a stop sign. A vehicle driven by Donald Karel and insured by SAMIC pulled up and stopped behind the northbound line of vehicles, a pickup truck, driven by Debra Embury and insured by ACIA, pulled up and stopped behind Karel. A northbound motorcycle, driven by Robert Bateman and traveling at a high rate of speed, was unable to stop behind the line of vehicles and collided with Embury's pickup truck. The motorcycle slid down the driver's side of Embury's pickup truck and eventually slid into the southbound lane of traffic. It is disputed whether Bateman also hit Karel's vehicle before sliding into the oncoming lane of traffic. Bateman sustained severe injuries.

Plaintiff ACIA paid PIP benefits to Bateman for the injuries he sustained in the accident. ACIA then commenced this action seeking declaratory relief and recoupment from SAMIC for PIP benefits paid to Bateman on the basis that Bateman also struck Karel's car. SAMIC moved for summary disposition, arguing that Karel's vehicle was not struck by Bateman. SAMIC also argued that even if Bateman struck Karel's vehicle, under Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 528 N.W.2d 681 (1995), Karel's vehicle was still not "involved" in the accident to the extent that SAMIC is obligated to pay no-fault benefits. ACIA responded to the motion by submitting evidence that Bateman struck Karel's vehicle and by arguing that Karel's vehicle was therefore involved in the accident. The circuit court granted SAMIC's motion.

II

On appeal, a circuit court's grant of summary disposition is reviewed de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. Summary disposition is appropriate when, except for the amount of damages, there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). When deciding a motion under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999).

M.C.L. § 500.3105(1) provides:

Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle [¹] as a motor vehicle, subject to the provisions of this chapter.

M.C.L. 500.3114(5) and (6) provide:

(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.

(b) The insurer of the operator of the motor vehicle involved in the accident.

(c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.

(d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident.

(6) If 2 or more insurers are in the same order of priority to provide personal protection insurance benefits under subsection (5), an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among all of the insurers.

The question is whether Karel's vehicle was "involved" in the accident within the meaning of M.C.L. § 500.3114(5). SAMIC claims that Karel's car was not "involved" in the accident because (1) Bateman did not collide with Karel's car, and (2) even if Bateman did collide with Karel's car, Karel's car played a passive role in the accident, and a passive role is not enough to constitute involvement under Turner, supra.

A

The first question, whether Bateman collided with Karel's car, is a question of fact. The party moving for summary disposition has the initial burden of supporting its position by affidavits, depositions, or other documentary evidence. Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999). The party opposing the motion then has the burden of showing by evidentiary materials that a genuine issue of disputed fact exists, id., and the disputed factual issue must be material to the dispositive legal claim, State Farm Fire & Cas. Co. v. Johnson, 187 Mich.App. 264, 267, 466 N.W.2d 287 (1990). While SAMIC concedes in its brief that for purposes of this appeal this Court should assume that the accident happened as asserted by ACIA, it nevertheless attacks the sufficiency of ACIA's showing in this regard. We therefore address whether ACIA established a genuine issue regarding whether Bateman hit Karel's vehicle.

SAMIC, in support of its motion below, submitted excerpts from Embury's deposition and Karel's affidavit. Karel stated in his affidavit that Bateman did not hit his car and that the damage to his taillight and windshield was caused by flying debris. Embury, whose pickup truck was struck by Bateman, testified at her deposition that she did not see whether Bateman hit Karel's car in front of her. ACIA responded by presenting the deposition testimony of Wayne Schipper, a witness to the accident. Schipper testified:

Q. So do you recall at what point the motorcyclist left his bike?

A. After hitting the second [Karel's] car.

Q. After hitting the second car?

A. Yep.

* * *

Q. But did you see the bike come in contact with the second car?

A. Yes, I did.

* * *

Q. We don't want you to guess or speculate. We want to know exactly what you saw, and if you're not sure, tell us you're not sure.

A. I'm almost positive he was—was on the bike when it hit the second car and that's what made it—that's when he flew off and the bike went sliding. And if it hit another vehicle, a third vehicle, as you were saying something about a third vehicle, that, I didn't see because I took off.

* * *

A. ... If this was the second vehicle in line from where I was, it looked like he caught the back corner panel. (Pointing.) Right here. And that's when—because his bike, his wheel, went like that (indicating) and he shot off.

Q. I'm going to hand you Exhibit 2, which is kind of more of a close-up of the same vehicle. The driver of the vehicle and passenger of the vehicle got out, inspected the car immediately after the accident because they did hear a noise—

A. Right.

Q. —and what they observed was a broken taillight, apparently because some debris had—

A. No. No, he did—he did hit the second vehicle—or the bike did come into contact with the second vehicle.

Q. Okay. The bike did, but you're not—once again, you're not sure—

A. At that time that is when he flew off, when he hit this—I'm—I'm almost positive that that's when he got separated from the bike, after he hit the second vehicle.

* * *

Q. Okay. So you did not see any dents at all to the second vehicle?

A. Not visually, no. I seen [sic] the bike made contact with the second vehicle though.

Q. Was it a glancing blow or did it hit it pretty darn hard?

A. With a motorcycle a pebble can throw you. So I couldn't tell you if it was a hard blow—it was hard enough to send him sailing, send the guy sailing.

In addition to Schipper's testimony, Sergeant J.D. Flegel, the state trooper who responded to the accident and who prepared the police report, testified at his deposition that certain damage to Karel's vehicle and the skid marks leading to Karel's car led him to believe that Karel's car was involved in the accident.²

Although Schipper's testimony³ was contradictory in part, it was sufficient to raise an issue of fact regarding whether there was a collision between Bateman and Karel's car.⁴ Defendant argues that Schipper is not believable because of the contradictions in his deposition testimony. However, when the truth of a material factual assertion depends on the credibility of a witness, a genuine factual issue exists and summary disposition may not be granted. Metropolitan Life Ins. Co. v. Reist, 167 Mich.App. 112, 121, 421 N.W.2d 592 (1988).

B

Having determined that the testimony offered below was sufficient to raise a factual issue regarding whether Bateman collided with Karel's car, we must address whether such...