Burk v. Warren

• Decision Date: 21 April 1981
• Docket Number: Docket Nos. 47885,48909
• Citation: 307 N.W.2d 89,105 Mich.App. 556
• Parties: Robert D. BURK, Plaintiff-Appellee, v. David O. WARREN and Detroit Automobile Inter-Insurance Exchange, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 89

307 N.W.2d 89

105 Mich.App. 556

Robert D. BURK, Plaintiff-Appellee, v. David O. WARREN and Detroit Automobile Inter-Insurance Exchange, Defendant-Appellant.

Docket Nos. 47885, 48909.

Court of Appeals of Michigan.

April 21, 1981.

Released for Publication July 2, 1981.

C. Mark Hoover, Lansing, for defendant-appellant.

A. C. Murphy, Lansing, for plaintiff-appellee.

Before T. M. BURNS, P. J., and BEASLEY and DENEWETH, JJ. ^*

G. R. DENEWETH, Judge.

This matter encompasses two consolidated appeals of right arising from a single lawsuit.

On June 1, 1976, a motorcycle owned and operated by Plaintiff, Robert D. Burk, collided with a pickup truck owned and operated by Defendant David O. Warren. At the time of the collision, Warren was insured under a policy of no-fault automobile insurance issued by Defendant D.A.I.I.E. Burk resided with his parents, who carried no-fault insurance coverage on their automobiles under certain policies also issued by D.A.I.I.E. Burk possessed no separate property insurance coverage on his motorcycle.

Litigation commenced in Ingham County Circuit Court on November 5, 1976. Burk joined his personal injury claims against Warren with claims against D.A.I.I.E. for the property damage occasioned to his motorcycle.

D.A.I.I.E.'s response to the complaint was in the form of a motion for summary judgment of dismissal in its favor. The motion asserted that Burk's claim concerning the property damage to his motorcycle was barred by the Michigan No-fault Automobile Insurance Act. This motion was denied November 1, 1978.

Without waiving D.A.I.I.E.'s right of appeal, Burk and D.A.I.I.E. stipulated to the entry of a judgment against D.A.I.I.E. on the property damage claim.

Thereafter, on September 17, 1979, Burk's claims for his personal injuries were tried before a jury. On the following day, the jury returned a verdict of no cause of action. In reaching this conclusion, the jury responded to certain specific questions propounded by the trial judge. It was determined that the collision had been proximately occasioned by Burk's negligent operation of his motorcycle. It was further determined that Burk's injuries did not amount to a "serious impairment of body function".

Burk's injuries consisted of a fractured clavicle (collarbone) and numerous bruises and abrasions. The fracture was set by a closed reduction and Burk was placed in a brace cast for a period of one month. No untoward complications were present at any time during Burk's convalescence. The principal consequences of the injuries were pain, sleeplessness and greatly impeded physical activity. The latter factor was occasioned largely through the immobility of Burk's arm and shoulder while he was in the brace cast. The physician's prognosis indicates that no permanent damage of any consequence is present.

Burk's appeal rises from the trial judge's denial of his motion for a judgment n.o.v. or, in the alternative, for a new trial. Because of Burk's failure to move for a directed verdict at any time, we will treat the matter as an application for a new trial only, GCR 1963, 515.2.

D.A.I.I.E.'s appeal flows from the trial Judge's decision to award Burk $2,010.30 as compensation for the property damage occasioned to his motorcycle.

We will first analyze the question of property coverage. Under the no-fault act, a person is entitled to receive property protection insurance benefits to cover damages to his personalty occasioned by mishaps involving motor vehicles. M.C.L. § 500.3121; M.S.A. § 24.13121. The legislative intent then becomes less clear.

M.C.L. § 500.3123; M.S.A. § 24.13123 establishes certain exceptions to this rule of broad coverage. The first exception occasions the matter at bar.

"Damage to the following kinds of property is excluded from property protection insurance benefits:

(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred."

An independent reading of this section compels the conclusion that Burk's motorcycle was clearly excluded from property coverage. Reference must also be made, however, to M.C.L. § 500.3101(2); M.S.A. § 24.13101(2):

"(2) 'Motor vehicle' as used in this chapter, except for section 3103, 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, but does not include a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949, being section 257.32b of the Michigan Compiled Laws." (Emphasis added)

The import of this section is to exclude motorcycles from the legislative definition of "motor vehicles". Resolution of this apparent contradiction in legislative intent requires recourse to basic principles of statutory construction.

In White v. City of Ann Arbor, 406 Mich. 554, 562, 281 N.W.2d 283 (1979), the Supreme Court stated that:

"The primary and fundamental rule of constitutional or statutory construction is that the Court's duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute."

A comprehensive review of the no-fault act discloses numerous examples of ambiguity in the use of the terms "vehicle" and "motor vehicle". See e. g. M.C.L. §§ 500.3102(1), 500.3106, 500.3113(a), 500.3114(3), (4); M.S.A. §§ 24.13102(1), 24.13106, 24.13113(a), 24.13114(3), (4). In each instance, the term "vehicle" clearly means "motor vehicle".

It should be noted that while the no-fault act does not require motorcycles to be covered by no-fault insurance, neither does the act preclude the purchase of such coverage. See Porter v. Michigan Mutual Liability Co., 80 Mich.App. 145, 149, 263 N.W.2d 318 (1977), modified on other grounds, 407 Mich. 175, 284 N.W.2d 463 (1979), and 1978 Annual Survey of Michigan Law, Insurance Law, 25 Wayne L.Rev. 539, 555 (1979).

The use of the term "vehicle" in M.C.L. § 500.3123(1)(a); M.S.A. § 24.13123(1)(a), instead of "motor vehicle", appears to be another example of legislative inadvertence. We believe that the Legislature intended to include motorcycles within the ambit of the section's exclusionary clause.

It is clear under M.C.L. § 500.3123(1)(a) that an automobile owner may not recover no-fault benefits for damage to his automobile unless it was properly parked at the time of the accident. An automobile owner has the option of purchasing collision coverage if he wishes to insure his car against damage resulting from accidents other than those in which his car is properly parked. Shavers v. Attorney General, 402 Mich. 554, 626, 267 N.W.2d 72 (1978). It is consistent with the intent and purposes of the no-fault act to presume that the Legislature intended a similar result in matters involving property damage to motorcycles.

This conclusion does no violence to the constitutional result reached in Shavers, supra. In rejecting an equal protection attack on the exclusion of motorcycles from no-fault coverage, Shavers noted two justifications for the exclusion. First, statistics show that the motorcyclist is rarely at fault in motorcycle-automobile collisions. Second, motorcyclists are far more likely to be killed or seriously injured in such collisions than are those persons involved in ordinary collisions. Plainly, the inclusion of motorcycles in a no-fault system would result in exaggerated premiums.

In the case at bar, even though the first justification may carry limited relevance, the second justification carries none. Property damage to automobiles is not a factor in determining no-fault premium costs. Since automobile owners are required to insure their own vehicles for property damage, it is reasonable to expect a similar intent in the case of motorcyclists.

The foregoing analysis is not affected by Underhill v. Safeco Ins. Co., 407 Mich. 175, 284 N.W.2d 463 (1979). Unlike Underhill, the focus of the present case is upon legislative intent, not constitutional infirmity where legislative intent was undisputed. Moreover, the question of whether a motorcyclist is entitled to personal injury protection benefits involves significantly different considerations from the question of whether he should be able to recover no-fault benefits for damages to his motorcycle arising from a collision with an automobile. The most profound difference is, again, that no-fault policies extend no property coverage to any vehicles involved in nonparking related accidents.

This leaves Burk's final claim that, if motorcycles cannot be covered for property damage under the provisions of M.C.L. § 500.3123(1)(a), he should be free to pursue his traditional tort remedies. We do not agree. Tort liability has been abolished with respect to unintentionally occasioned property damage arising from the use, ownership, or maintenance of motor vehicles within this state. An automobile owner who has not obtained his own collision insurance has no recourse to tort when his automobile is damaged by another insured vehicle. There is no evidence of a legislative intent to provide motorcyclists with a unique remedy in this regard.

We now turn to the issue of serious impairment of body function. The applicable statutory section, M.C.L. § 500.3135(1); M.S.A. § 24.13135(1), provides that:

"(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance or...