Auto-Owners Ins. Co. v. Turner

• Decision Date: 19 September 1984
• Docket Number: AUTO-OWNERS,Docket No. 70270
• Citation: 135 Mich.App. 522,354 N.W.2d 813
• Parties: INSURANCE COMPANY, Plaintiff-Appellee, v. Betty TURNER, as Parent and Next Friend of Craig Turner, a minor, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 813

354 N.W.2d 813

135 Mich.App. 522

AUTO-OWNERS INSURANCE COMPANY, Plaintiff-Appellee, v. Betty TURNER, as Parent and Next Friend of Craig Turner, a minor, Defendant-Appellant.

Docket No. 70270.

Court of Appeals of Michigan.

Submitted March 15, 1984.

Decided June 19, 1984.

Released for Publication Sept. 19, 1984.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P.C. by Barry M. Feldman and James J. Hayes, Jr., Detroit, for plaintiff-appellee.

Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Kathleen L. Bogas, Detroit, for defendant-appellant.

Before WAHLS, P.J., and BRONSON and KAUFMAN, ^* JJ.

PER CURIAM.

Defendant appeals as of right from an order of the trial court granting summary judgment under GCR 1963, 117.2(3) to plaintiff in its action for declaratory relief.

Plaintiff is the insurer of an ice cream truck owned by Mr. Jolly, Inc. On June 16, 1979, this truck was parked in a street in Inkster, Michigan. After purchasing some ice cream, nine-year-old Craig Turner stood next to the truck, waiting for traffic to clear so that he could cross the street. At that moment, an uninsured automobile driven by Dennis Cooper struck the ice cream truck, knocking it against Craig Turner. Craig was pinned under the ice cream truck and suffered a broken right leg and severe lacerations on his right ankle and left knee.

Defendant claimed entitlement to uninsured motorist benefits pursuant to the policy issued by plaintiff to Mr. Jolly, Inc. and filed a demand for arbitration. Plaintiff then filed this action for declaratory judgment and its motion for summary judgment. The trial court ruled that defendant was not entitled to recover under the policy because the ice cream truck was not being used as a motor vehicle at the time Craig was hit, but rather as a store. The court further found that Craig was not an insured under the policy because he was not entering, alighting from or occupying the ice cream truck at the time he was injured.

On this appeal, we must determine whether Craig is entitled to recover uninsured motorist benefits pursuant to plaintiff's insurance policy. ¹ Under the terms of the insurance policy issued by plaintiff, defendant is entitled to recover uninsured motorist benefits only if (1) Craig's injuries arose out of the use of a motor vehicle and (2) Craig qualifies as an "insured" under the policy. Under the facts of this case, Craig is an "insured" within the meaning of the policy only if he sustained injury "while in, upon, entering or alighting from" the ice cream truck. If, as a matter of law, defendant was unable to satisfy both conditions (1) and (2), then summary judgment was properly entered for plaintiff. ² Because we hold that Craig was not "in, upon, entering or alighting from" the ice cream truck within the meaning of the insurance policy, we affirm the trial court's order of summary judgment.

Our Supreme Court previously has had occasion to construe similar language in an insurance policy. In Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), the plaintiff was a passenger in an automobile insured by Citizens Mutual. The car stalled and plaintiff got out to seek assistance. As plaintiff walked to the front of the car, an automobile driven by an uninsured motorist struck the insured automobile from behind, pushing it against plaintiff, who suffered severe injuries. Under the terms of Citizens Mutual's policy, plaintiff was eligible for uninsured motorist benefits if he was "occupying the insured automobile". The policy defined "occupying" as "in or upon or entering into or alighting from". Id., p. 328, 224 N.W.2d 896.

The Supreme Court, mindful of the rule that language in an insurance policy is to be strictly construed against the insurer, rejected the approach employed by some jurisdictions that physical contact was a prerequisite to recovery under the provision at issue. Instead, the Court held that the plaintiff was an "assured" under the policy, "due to his immediate prior 'occupying' of the insured vehicle and his subsequent injury arising out of the use or repair of the same vehicle". Id., p. 331, 224 N.W.2d 896.

The "occupying, entering into, or alighting from" language has arisen in cases before this Court in a related, though different, context. Under the no-fault act, injury which arises out of the use of a parked vehicle is generally not compensable. However, if "the injury was sustained by a person while occupying, entering into, or alighting from the vehicle", then the injury is deemed to have arisen "out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle" and is compensable. M.C.L. § 500.3106; M.S.A. § 24.13106.

This Court has not limited recovery under this no-fault provision to persons injured while actually inside the vehicle at the time of the injury. Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 248, 293 N.W.2d 782 (1980). However, even where this Court has extended the "in, upon, entering into or alighting from" clause to a person standing outside of the vehicle, the person had at least physically occupied the vehicle immediately prior to the accident. See Royston v. State Farm Mutual Automobile Ins. Co., 130 Mich.App. 602, 344 N.W.2d 14 (1983) (The process of "alighting" from a vehicle was completed where plaintiff had left the cab of his truck and walked to the rear of the vehicle when the elevator collapsed.); Griffin v. Lumbermens Mutual Casualty Co., 128 Mich.App. 624, 341 N.W.2d 163 (1983) (Plaintiff who got out of his truck and climbed half-way up the flight of stairs on to the loading dock, turned to go back to truck and slipped, was not injured while "occupying" his truck within the meaning of § 3106.); Krueger v. Lumbermen's Mutual Casualty Co., 112 Mich.App. 511, 316 N.W.2d 474 (1982) (Plaintiff had not finished "alighting from" a vehicle when he was injured as a result of his climbing out of a truck, placing his right foot on the ground and his left foot into a hole in the ground.) ³

It is undisputed that Craig Turner stood outside of the ice cream truck during the course of his purchase; at no time did he enter into, occupy, or otherwise make physical contact with the truck. Neither the plain language of the policy clause nor prior case law would permit us to interpret Craig's activity as "in, upon,...