BASF Wyandotte Corp. v. Transport Ins. Co.
| Decision Date | 08 October 1981 |
| Docket Number | Civ. A. No. 80-70222. |
| Citation | 523 F. Supp. 515 |
| Parties | BASF WYANDOTTE CORPORATION, a Michigan Corporation, Plaintiff, v. TRANSPORT INSURANCE COMPANY, a Texas Corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Denenberg, Tuffley, Thorpe, Bocan & Patrick by John L. Hopkins, Jr., Southfield, Mich., for plaintiff.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Charles A. Huckabay, Detroit, Mich., for defendant.
The issue in this diversity case is whether the damage to tangible property suffered by the plaintiff arose out of the use of defendant insured's motor vehicle as a motor vehicle within the meaning of M.C. L.A. § 500.3121(1). The Court concludes it did, and will grant plaintiff's motion for summary judgment.
The case is before the Court upon a stipulation of facts. The stipulated facts show that on January 23, 1979, a tanker load of the chemical ethylene diamine (hereinafter "EDA") was delivered to the cite of the BASF Wyandotte polyol plant. The "EDA" was purchased from Union Carbide corporation and transported to the BASF Wyandotte plant by a tractor/tanker owned by D.S.I. Transports, Inc., and insured by defendant Transport Insurance Company on the date of the accident.
William McClellan, an employee of BASF Wyandotte, directed the driver of the tanker truck to park his unit so that the contents of the tanker could be unloaded into the polyol plant receiving station. McClellan connected a discharge hose owned by plaintiff to the tanker and to the receiving connection in plaintiff's storage system. He then opened the appropriate lines and valves and began the unloading process, or flow, of "EDA".
After checking to make sure that the unloading was proceeding correctly, McClellan left the tanker, returning every ten minutes or so to check on the operation. Upon returning at approximately 1:20 p. m., McClellan discovered the hose had ruptured, and that the "EDA" had spilled in the vicinity of the tanker. The rupture took place on the discharge hose, approximately one foot from the connection to the tanker.
Plaintiff, through its employee McClellan, had active control of the unloading process once the D.S.I. Transport truck was parked in the location designated by the plaintiff.
Plaintiff claims damages, including lost profits, in the approximate amount of $250,000 resulting from the chemical spill.
The pertinent sections of the Michigan "No-Fault" Statute, M.C.L.A. § 500.3101(1) et seq. provide as follows:
And M.C.L.A. § 500.3121(1) relating to property protection benefits provides:
"(1) Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section..."
There is no question that a tank truck is a motor vehicle. The issue for the Court is whether the vehicle was being used as a motor vehicle at the time of the unloading of the chemicals so as to make defendant liable.
Defendant argues that the Statute (M.C. L.A. § 500.3121(1)) does not include the language "loading and unloading" in defining situations in which the insurer is liable to pay property protection benefits, and that under the principle of "expressio unius est exclusio alterius" the omission of the language "loading and unloading" implies its exclusion. It cites numerous authorities for the proposition that the express mention of one thing in a statute implies the exclusion of another similar thing.
Defendant further argues that the unloading of the insured vehicle under the present facts did not constitute the use of a motor vehicle as a motor vehicle. It claims that in construing a statute every word must be considered, and no clause or word of the statute may be ignored. It says unloading a vehicle is not the use of a motor vehicle as a motor vehicle, and, therefore, there is no liability under the policy.
The Court feels that the defendant's interpretation of the...
To continue reading
Request your trial
-
Aetna Life and Cas. Co. v. Bulaong
...111 Wash.2d 636, 762 P.2d 1141, 1142 (1988); see Maryland Casualty Co. v. Marshbank, supra, 639; BASF Wyandotte Corporation v. Transport Ins. Co., 523 F.Supp. 515, 517 (E.D.Mich.1981); Home Indemnity Co. v. Lively, 353 F.Supp. 1191, 1193 (W.D.Okla.1972); Orrill v. Garrett, 100 Ill.App.2d 19......
-
Francis-Newell v. Prudential Ins. Co. of America, FRANCIS-NEWEL
...P.2d 1141, 1142 (1988); see Maryland Casualty Co. v. Marshbank [226 F.2d 637 (3d Cir.1955) ], 639; BASF Wyandotte Corporation v. Transport Ins. Co., 523 F.Supp. 515, 517 (E.D.Mich.1981); Home Indemnity Co. v. Lively, 353 F.Supp. 1191, 1193 (W.D.Okla.1972); Orrill v. Garrett, 100 Ill.App.2d ......
-
Griffin v. Lumbermens Mut. Cas. Co.
...and the injury need not approach proximate cause * * *." Shinabarger, p. 313, 282 N.W.2d 301. See also BASF Wyandotte Corp. v. Transport Ins. Corp., 523 F.Supp. 515, 517 (E.D.Mich.1981). An independent cause may be grease on the floor. Ohio Casualty, The majority, however, denies recovery b......
-
McCarthy Bros. v. Continental Lloyds Ins.
...but its terms are broad and vague; it "imparts a more liberal concept than proximate cause"); BASF Wyandotte Corp. v. Transportation Ins. Co., 523 F. Supp. 515, 517 (D.C. Mich. 1981) ("arising out of" does not mean proximate cause in strict legal sense); Farmers Ins. Co. v. Till, 825 P.2d 9......