Bromley v. Citizens Ins. Co. of America

• Decision Date: 31 March 1982
• Docket Number: Docket No. 55227
• Citation: 113 Mich.App. 131,317 N.W.2d 318
• Parties: Marion BROMLEY, Plaintiff-Appellant, v. CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 318

317 N.W.2d 318

113 Mich.App. 131

Marion BROMLEY, Plaintiff-Appellant, v. CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

Docket No. 55227.

Court of Appeals of Michigan.

Submitted Nov. 3, 1981.

Decided Feb. 3, 1982.

Released for Publication March 31, 1982.

McCroskey, Libner, Van Leuven, Feldman, Cochrane & Brock, P. C. by Eric C. Lewis, Muskegon, for plaintiff-appellant.

Collinge, Silky & Kobza by Douglas M. Hughes, Muskegon, for defendant-appellee.

Before BURNS, P. J., and BASHARA and KNOBLOCK, ^* JJ.

PER CURIAM.

Plaintiff appeals the trial court's order granting summary judgment in defendant's favor.

Plaintiff alleged in his complaint that on May 14, 1976, while driving his motorcycle, an unidentified car sped toward him, crossed the center line and forced him off the road, resulting in numerous personal injuries. The motorcycle was not insured for no-fault benefits. However, plaintiff carried no-fault insurance on his automobile through defendant.

On February 8, 1977, plaintiff talked to defendant's agent, Thomas F. Thompson, about the possibility of recovering personal injury protection benefits under his automobile no-fault insurance policy. Thompson told plaintiff at that time, as well as two years later, that the accident was not covered because plaintiff's motorcycle never actually collided with or was touched by the unidentified car. No written claim was filed.

On August 3, 1979, plaintiff commenced this action seeking personal injury benefits pursuant to the Michigan no-fault act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq., and alleged misrepresentation on the part of Thompson acting on behalf of defendant. Defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). The trial court granted the motion, holding that the lack of contact between the unidentified car and the motorcycle precludes an award of no-fault benefits. The court also granted summary judgment as to the misrepresentation claim on the finding that there was no conduct on the part of defendant's agent, Thompson, which would estop defendant from raising the summary judgment defense.

The standard which governs review of summary judgment based upon a failure to state a claim upon which relief can be granted is well settled. The motion for such a judgment tests the legal sufficiency of the complaint, not whether there is factual support for it. Factual allegations, along with inferences or conclusions which may be fairly drawn therefrom, are taken as true. The motion brought under GCR 1963, 117.2(1) should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development can justify a right to recover. O'Toole v. Fortino, 97 Mich.App. 797, 295 N.W.2d 867 (1980).

In order for plaintiff to establish a claim under his automobile no-fault policy for the motorcycle accident, he must present proof that the injury arose "out of the ownership, operation, maintenance or use of a motor vehicle". M.C.L. § 500.3105(1); M.S.A. § 24.13105(1).

In Piersante v. American Fidelity Ins. Co., 88 Mich.App. 607, 278 N.W.2d 691 (1979), this Court held that plaintiff was entitled to no-fault personal protection benefits under his automobile insurance policy when his motorcycle collided with another automobile. The Piersante opinion is based upon an exhaustive analysis of several sections of the no-fault act. Also see, Porter v. Michigan Mutual Liability Co., 80 Mich.App. 145, 263 N.W.2d 318 (1977).

The only factual difference between Piersante and this case is that the automobile did not actually touch this plaintiff's motorcycle. However, we find Piersante and Porter to be controlling. The proper point of inquiry is whether or not the accident arose from the use of a motor vehicle. The fact that the car did not actually touch the motorcycle is irrelevant as long as the causal nexus between the accident and the car is established.

We find the pleadings to be sufficient to sustain an action under these alleged facts and that this case is unlike those cases where this Court has found the injuries to be only tangentially related to the use of an automobile. Cf. Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 293 N.W.2d 782 (1980), Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 308 N.W.2d 661 (1981), and Ricciuti v. Detroit Automobile Inter-Ins. Exchange, 101 Mich.App. 683, 300 N.W.2d 681 (1980). If plaintiff could sustain the burden of proof that the phantom car existed and caused the accident, he has presented a claim upon which relief can be granted and summary judgment was improper as to this issue.

However, summary judgment also was granted due to the fact that the statute of limitations had run under the no-fault act, M.C.L. § 500.3145; M.S.A. § 24.13145. Plaintiff alleges that Thompson's misrepresentations to him concerning coverage tolled the statute pursuant to M.C.L § 600.5855; M.S.A. § 27A.5855, which states:

"If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations."

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