Gooden v. Transamerica Ins. Corp. of America

• Decision Date: 07 April 1988
• Docket Number: Docket No. 97559
• Citation: 166 Mich.App. 793,420 N.W.2d 877
• Parties: Corteen G. GOODEN, Plaintiff-Appellant, v. TRANSAMERICA INSURANCE CORPORATION OF AMERICA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 877

420 N.W.2d 877

166 Mich.App. 793

Corteen G. GOODEN, Plaintiff-Appellant, v. TRANSAMERICA INSURANCE CORPORATION OF AMERICA, Defendant-Appellee.

Docket No. 97559.

Court of Appeals of Michigan.

Submitted Dec. 8, 1987.

Decided March 7, 1988.

Released for Publication April 7, 1988.

Libner, Van Leuven & Kortering, P.C. by John A. Braden, Muskegon, for plaintiff-appellant.

Dilley, Dewey & Damon, P.C. by Jonathan S. Damon, Grand Rapids, for defendant-appellee.

Before MAHER, P.J., and GRIBBS and SIMMONS, ^* JJ.

MAHER, Presiding Judge.

Plaintiff appeals as of right from a judgment of no cause of action entered against him by the Muskegon Circuit Court. That judgment had the effect of dismissing his claim against defendant, his no-fault insurer, for personal injury protection (PIP) benefits. We affirm.

Plaintiff was injured on February 16, 1985, shortly after he finished chipping ice off the roof of a friend's home. To assist him in this chore, plaintiff parked his pickup truck next to the house and positioned the ladder against the roof from the truck bed. This was done to ensure greater stability and to extend the ladder's reach. After knocking off the snow and ice with a small ax, plaintiff dropped the tool into the snowbank below, where it landed handle up. As he was taking down the ladder, he stumbled on some ice which had dropped into the truck bed. To avoid falling on firewood stacked in the truck, he threw himself over the edge of the truck in hopes of landing on the snowbank. His hopes were met--unfortunately. He landed in a straddle position atop the ax, impaling himself on the handle. He was able to drive to a local hospital where he stayed for six days and incurred substantial medical expenses.

Plaintiff thereafter filed an application for PIP benefits with defendant. Following defendant's denial of the application, plaintiff commenced this suit in the Muskegon Circuit Court. A bench trial was held on the matter, at the conclusion of which the judge issued a judgment of no cause of action. The judge ruled that plaintiff had not been using the truck as a motor vehicle at the time of the injury, as required by § 3105(1) of the Michigan No-Fault Insurance Act, M.C.L. § 500.3105(1); M.S.A. § 24.13105(1).

Pursuant to § 3105(1), a no-fault 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...." (Emphasis added.) Where, as in this case, an injury is sustained while the vehicle is parked, recovery under the no-fault act is generally precluded. M.C.L. § 500.3106; M.S.A. § 24.13106; Harkins v. State Farm Mutual Automobile Ins. Co., 149 Mich.App. 98, 100, 385 N.W.2d 741 (1986), lv. den. 425 Mich. 877 (1986). However, several statutory exceptions exist to this "parked vehicle exclusion" which permit recovery. One of these exceptions is where "the injury was sustained by a person while occupying, entering into, or alighting from the vehicle." M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c).

In the instant case, defendant concedes that plaintiff was "alighting" from the truck (albeit in a rather unorthodox fashion) but asserts that he was not entitled to PIP benefits because the truck was not being used as a motor vehicle at the time. In response, plaintiff argues that if an exception to the parked vehicle exclusion applies then the injury must necessarily have arisen out of the use of a motor vehicle as a motor vehicle. We disagree with that argument.

In prior decisions of this Court, it has overwhelmingly been held that, in order to recover for an injury in cases such as this, a claimant must show that an exception to the parked vehicle exclusion applies and the injury arose out of the use of a motor vehicle as a motor vehicle. This latter requirement means that there must be a sufficient causal nexus between the use of the motor vehicle and the injury. See, e.g., Perryman v. Citizens Ins Co of America, 156 Mich.App. 359, 363-365, 401 N.W.2d 367 (1986), lv. den. 428 Mich. 874 (1987); Harris v. Grand Rapids Area Transit Authority, 153 Mich.App. 829, 831-832, 396 N.W.2d 554 (1986); Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 333-334, 367 N.W.2d 388 (1985), lv. den. 426 Mich. 871 (1986); Auto-Owners Ins. Co. v. Turner, 135 Mich.App. 522, 524, n. 2, 354 N.W.2d 813 (1984); Johnston v. Hartford Ins. Co., 131 Mich.App. 349, 357-360, 346 N.W.2d 549 (1984), lv. den. 419 Mich. 893 (1984); Teman v. Transamerica Ins. Co. of Mich., 123 Mich.App. 262, 265-266, 333 N.W.2d 244 (1983); King v. Aetna Casualty & Surety Co., 118 Mich.App. 648, 651-652, 325 N.W.2d 528 (1982), lv. den. 418 Mich. 881 (1983); Krueger v. Lumbermen's Mutual Casualty Co., 112 Mich.App. 511, 516, 316 N.W.2d 474 (1982); Block v. Citizens Ins. Co. of America, 111 Mich.App. 106, 108-109, 314 N.W.2d 536 (1981); Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 293 N.W.2d 782 (1980); Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 312-315, 282 N.W.2d 301, 15 ALR4th 1 (1979), lv. den. 407 Mich. 895 (1979). See also Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975). In Shinabarger, supra, 90 Mich.App. at pp. 314-315, 282 N.W.2d 301, the dual requirement was succinctly explained:

"Section 3106, which establishes criteria for accidents involving parked vehicles, does not abrogate the need for a causal connection between the automobile and the injury. As the wording of the section makes clear, it establishes only minimum criteria for accidents involving parked vehicles. Under § 3106, no injury involving a parked vehicle may be compensated for unless one of the criteria therein is met; however, fulfillment of the requirements of § 3106 does not automatically result in liability. Even after the threshold of § 3106 is crossed, it must still be established that the injury arose out of the ownership, operation, maintenance or use of the motor vehicle."

To our knowledge, only one case has expressly held that once an exception to the parked vehicle exclusion is found to apply then no such "causal connection" need be shown. See McPherson v. Auto-Owners Ins. Co., 90 Mich.App. 215, 282 N.W.2d 289 (1979), lv. den. 407 Mich. 908 (1979). Our sentiments as to that case were best expressed in King, supra, 118 Mich.App. at p. 652, 325 N.W.2d 528:

"We once again take the opportunity to respectfully wish McPherson a speedy burial."

Considering the unanimity of post-McPherson decisions in requiring a separate showing that the motor vehicle was being used as a motor vehicle, we are confident that that case has long since been laid to rest.

Plaintiff argues, though, that McPherson has been resurrected by the Supreme Court's decision in Clute v. General Accident Assurance Co. of Canada, 428 Mich. 871, 401 N.W.2d 615 (1987), rev'g 142 Mich.App. 640, 369 N.W.2d 864 (1985). We believe plaintiff has construed the holding of Clute too broadly. To explain our belief, it is necessary to examine more closely this Court's and the Supreme Court's decisions in Clute, and the underlying bases of those decisions.

In Clute the plaintiff was injured when a car crashed into a van where she was sleeping. The van had been parked off the street next to an acquaintance's house at the time.

When the case was before this Court, two members of the panel held that defendant, the no-fault insurer of the van, was not liable to pay for plaintiff's medical expense. The majority reasoned:

"Here, the van was parked off the street and was being used for sleeping accommodations, apparently because the house by which it was parked could not accommodate all of the guests. Furthermore, it was not adapted for such use by its owner. We agree with the trial court that the van was not being used as a motor vehicle." 142 Mich.App. 643, 369 N.W.2d 864.

Judge Hood dissented from that holding, stating that the majority's inquiry into whether the van was being used as a motor vehicle at the time of the collision was irrelevant for purposes of § 3114(4), the no-fault provision in dispute. ¹ M.C.L. § 500.3114(4); M.S.A. § 24.13114(4). This was the thrust of Judge Hood's dissent. 142 Mich.App. 644-645, 369 N.W.2d 864. But, by way of dictum, he went on to say that not only was the majority's analysis irrelevant, it was erroneous as well. He felt that "when a parked motor vehicle involved in a motor vehicle accident fits one of the exceptions to the parking exclusion (§ 3106), it is conclusive that the vehicle was in use 'as a motor vehicle'." (Emphasis added.) Id., 142 Mich.App. at p. 647, 369 N.W.2d 864. Judge Hood based that belief on the Supreme Court's decisions in Heard v. State Farm Mutual Automobile Ins Co, 414 Mich. 139, 324 N.W.2d 1 (1982), AND MILLER V. AUTO-OWNErs ins co, 411 MIch. 633, 309 n.w.2d 544 (1981).

In a summary decision, the Supreme Court ruled, without independent explanation, that "the judgment of the Court of Appeals is reversed for reasons stated by Judge Hood in the Court of Appeals...." 428 Mich. 871, 401 N.W.2d 615. Assuming that decision was an expression of approval for the entirety of Judge Hood's dissent--and not just that portion discussing the application of § 3114(4)--we would be constrained to agree with plaintiff that, if an exception to the parked vehicle exclusion is found to exist, the vehicle was conclusively in use as a motor vehicle at the time. However, absent express direction, we do not believe the Supreme Court intended to summarily cast away near-unanimous precedent from this Court by adopting language from a dissent which was unnecessary for disposition of the case. Moreover, our belief is supported by policy considerations underlying the no-fault act, principles of statutory construction, and prior decisions of the Supreme Court itself.

The basic goal of the no-fault insurance system is to provide individuals injured in motor vehicle accidents assured, adequate and prompt...