Dowdy v. Motorland Ins. Co.

• Decision Date: 24 April 1980
• Docket Number: Docket No. 45195
• Citation: 97 Mich.App. 242,293 N.W.2d 782
• Parties: Kenneth L. DOWDY and Margaret Dowdy, Plaintiffs-Appellants, v. MOTORLAND INSURANCE COMPANY, a Michigan Corporation, Defendant-Appellee, and Detroit Steel Products Company, a Division of Marmon Group, Inc., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 782

293 N.W.2d 782

97 Mich.App. 242

Kenneth L. DOWDY and Margaret Dowdy, Plaintiffs-Appellants, v. MOTORLAND INSURANCE COMPANY, a Michigan Corporation,

Defendant-Appellee,

and

Detroit Steel Products Company, a Division of Marmon Group,

Inc., Defendants.

Docket No. 45195.

Court of Appeals of Michigan.

April 24, 1980.

Released for Publication July 11, 1980.

Michael L. Pitt, Detroit, for plaintiffs-appellants.

James H. Schoolmaster, Carl L. Gromek, Detroit, for Motorland Ins. Co.

John E. McSorley, Detroit, for Detroit Steel Products.

Before HOLBROOK, P. J., and MAHER and GILLIS, JJ.

PER CURIAM.

This appeal arises from an action by plaintiff Kenneth L. Dowdy to recover no-fault benefits for injuries sustained on January 11, 1978 while he was in the course of employment with Artim Trucking Company. The defendant, Motorland Insurance Company (hereinafter Motorland) is the no-fault insurance carrier for plaintiff's private automobile.

The parties' stipulated facts reveal that the plaintiff and two other truck drivers from Artim Trucking left Indianapolis on the morning of January 11, 1978. All three were driving flat bed trucks from Indianapolis to Louisville, where they each picked up approximately 10 or 11 bundles of bar stock, weighing between 5,700 and 6,000 pounds. They left Louisville, Kentucky, driving in caravan style, and drove to the premises of the Detroit Steel Products Company, located in Morristown, Indiana.

Upon arrival, Patrick Bolte, one of the other drivers who accompanied the plaintiff, was the first to unload. It was the responsibility of the drivers to untie the chains and other devices used to secure the bundles to the flat bed trailers. Thereafter, the employees of Detroit Steel Products unloaded the steel bundles and stacked them in pyramid fashion, about two feet high, on the warehouse floor in close proximity to the unloading area. Pieces of wood were used as spacers between the bundles stacked on the floor.

The plaintiff was the last to unload. He backed his truck into the unloading area, walked to the rear wheels of the tractor on the driver's side and proceeded to unfasten the tie chains used to secure the steel bundles. At this time, a bundle of steel which had previously been unloaded from another truck fell from the stacks, pinning the plaintiff's left leg against the left rear wheel of the tractor. The accident caused a severe fracture of plaintiff's left ankle.

On November 17, 1978, plaintiff and defendant argued their motions for summary judgment before the Wayne County Circuit Court. The trial court, by an order issued May 2, 1979, granted summary judgment to Motorland based on a finding that the plaintiff did not sustain a bodily injury arising out of the ownership, maintenance or use of a parked vehicle within the meaning of the Michigan no-fault statute. From this order, the plaintiff appeals as of right.

On appeal, we are asked to decide whether the trial court erred in granting summary judgment in favor of the defendant because the plaintiff's injury did arise from the ownership, operation, maintenance or use of a parked motor vehicle.

M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) provides that:

"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 as a motor vehicle, subject to the provision of this chapter." (Emphasis supplied.)

M.C.L. § 500.3106; M.S.A. § 24.13106 deals specifically with injuries which involve a parked vehicle:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:

"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.

"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.

"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle." (Emphasis supplied.)

In order to recover no-fault benefits, the plaintiff must first fit himself within one of the three categories of § 3106. Clearly subsection (a) is not applicable to the facts of this case. The plaintiff claims that subsection (b) applies to his situation. This subsection was interpreted in Dembinski v. Aetna Casualty & Surety Co., 76 Mich.App. 181, 256 N.W.2d 69 (1977), where the plaintiff was carrying a ceramic mold which he was about to load unto his truck, slipped in a puddle of water, fell and inured his back. The Court found that the loading process consists only of the lifting of property into the vehicle. Since Dembinski was merely preparing to load the truck, he was excluded from coverage under § 3106(b). The Court said further that summary judgment was appropriate, since there was no dispute as to what occurred but only as to the question of law: whether what occurred came within the insurance coverage of loading.

Another case which interprets § 3106(b) is Arnold v. Auto-Owners Ins. Co., 84 Mich.App. 75, 269 N.W.2d 311 (1978). In Arnold, the plaintiff ruptured a disc in his back while he was lifting a ramp onto the upper deck of his employer's truck. The defendant insurance company contended that the injury was not compensable under § 3106(b) because it was not caused by physical contact with equipment permanently mounted on the vehicle. The Court, based on Dembinski, supra, concluded that § 3106(b) also makes compensable injuries which are a direct result of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process.

Under the undisputed facts of the instant case, the plaintiff was not injured due to contact with any equipment permanently affixed to the vehicle, nor was the injury due to contact with property which was being lifted onto or lowered from the vehicle in the loading process. We therefore find that § 3106(b) does not apply to the plaintiff and does not entitle him to a recovery under no-fault.

We next examine § 3106(c) to determine its propriety for the factual situation under consideration, i. e., whether the plaintiff was an "occupant" of the vehicle, or "entering or alighting" from the vehicle at the time of his injury. In Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), the plaintiff was a passenger of a car which stalled in the middle of the road. The occupants pushed the car to the side of the road and then flagged down a passing motorist for assistance. The plaintiff walked to the front of the stalled car while the assisting car was turning around to come back and render aid. At this time, a third vehicle struck the stalled car from behind, pushing it into the plaintiff Nickerson, who was severely injured. The Michigan Supreme Court concluded that strict physical contact was not imperative to a recovery. Nickerson had immediately prior to the injury been "occupying" the insured vehicle, and his subsequent injury arose out of the use or repair of the same vehicle, so he was an "occupant" of the insured vehicle and therefore within the scope of coverage.

The term "occupying" has thus been broadly interpreted by the Michigan courts to include persons who are not actually inside the vehicle at the time of injury. In Ottenwess v. Hawkeye Security Ins. Co., 84 Mich.App. 292, 269 N.W.2d 570 (1978), the decedent was deemed an occupant of his employer's dumptruck where he was fatally injured while "standing on or next to" the dump box while examining or attempting to repair a malfunction in the dumping mechanism. In Hathcox v. Liberty Mutual Ins. Co., 90 Mich.App. 511, 282 N.W.2d 374 (1979), the plaintiff was loading new automobiles onto his employer's truck-trailer. After driving one of these automobiles to the top deck and leaving the car, the plaintiff slipped on the snow-covered deck and fell, suffering neck and back injuries. The Court reasoned thusly, 90 Mich.App. 511, 517, 282 N.W.2d 374, 376:

"Here, plaintiff was engaged in the operation of loading his employer's truck-trailer with automobiles; in doing so, he was obliged to repeatedly return to the truck's cab in order to readjust the accelerator in conjunction with the operation of the hydraulic pump system; further, he fell down immediately after having driven an automobile onto the deck of the trailer. As in Nickerson, plaintiff was actually inside of the insured vehicle's cab at various times during the automobile loading process and his subsequent injury arose out of his use of the truck and its trailer. We find, therefore, that plaintiff was an "occupant" of that...