Gordon v. Allstate Ins. Co.

• Decision Date: 21 December 1992
• Docket Number: No. 129212,129212
• Parties: Debra GORDON, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 357

496 N.W.2d 357

197 Mich.App. 609

Debra GORDON, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

No. 129212.

Court of Appeals of Michigan.

Submitted Nov. 17, 1992, at Detroit.

Decided Dec. 21, 1992, at 10:20 a.m.

Released for Publication March 18, 1993.

Bloom & Kavanaugh by Gary M. Bloom, Livonia, for plaintiff-appellee.

Mitchell & Leon by Christina B. Bailey (Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James G. Gross, of counsel), Detroit, for defendant-appellant.

Before DOCTOROFF, C.J., and MURPHY and MARK J. CAVANAGH, JJ.

PER CURIAM.

Defendant, Allstate Insurance Company, appeals by leave granted from an order of the Wayne Circuit Court that granted partial summary disposition to plaintiff, Debra Gordon, in connection with her claim for benefits under the no-fault act. M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq. Defendant argues that the circuit court erred in reversing the district court's order denying coverage in connection with injuries plaintiff suffered while she was unloading steel from a truck. We disagree and affirm.

The facts giving rise to plaintiff's claim are essentially undisputed. On January 26, 1988, plaintiff, an iron worker, suffered a fractured ankle while she was unloading a bundle of steel from a truck. Plaintiff was on the bed of the truck, seeking to free the bundle that was being unloaded with the assistance of a crane. The crane had an attached boom that was used to lift the load off the bed of the truck. Plaintiff and another worker had the duty of attaching the boom to the load so that it could be lifted by the crane. At the time of the accident, the bundle of steel to which the boom was attached became lodged underneath the remaining steel. When plaintiff attempted to dislodge the load, the crane operator lifted the load, causing it to swing free and push plaintiff off the truck, resulting in her injury.

Plaintiff received medical and wage-loss benefits from her employer's workers' compensation insurance carrier. However, plaintiff filed a claim for additional wage-loss benefits from defendant under an insurance policy issued to plaintiff's mother. When defendant denied coverage, plaintiff filed a complaint in district court, seeking excess wage-loss benefits under her mother's policy. The district court granted defendant's motion for summary disposition on the ground that the no-fault act did not cover injuries arising out of the use or operation of a crane. Plaintiff appealed to the circuit court, which reversed the district court's order denying benefits. We granted defendant's delayed application for leave to appeal.

No-fault benefits may be recovered for "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle...." M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). This case implicates an additional section of the no-fault act commonly referred to as the parked vehicle exclusion. M.C.L. § 500.3106; M.S.A. § 24.13106. The policy behind the parked vehicle exclusion is that, as a general rule, injuries involving parked vehicles do not usually involve the use of a motor vehicle "as a motor vehicle" such that benefits are payable. McCaslin v. Hartford Accident & Indemnity, 182 Mich.App. 419, 423, 452 N.W.2d 834 (1990) (quoting Miller v. Auto-Owners Ins. Co., 411 Mich. 633, 639-641, 309 N.W.2d 544 [1981] ). However, the Legislature has determined that there are certain situations that involve injuries that are so intricately related to the character of the motor vehicle that the parked vehicle exclusion should not apply. Id. These situations are codified as exceptions to the parked vehicle exclusion. See M.C.L. § 500.3106(1)(a-c) and (2)(a-b); M.S.A. § 24.13106(a-c) and (2)(a-b). It is one of these exceptions that is applicable to this case.

As a threshold matter, we must dispel the notion asserted by defendant that plaintiff must satisfy the provisions of both M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) and M.C.L. § 500.3106; M.S.A. § 24.13106 in order to be entitled to benefits under the no-fault act. In Winter v. Automobile Club of Michigan, 433 Mich. 446, 446 N.W.2d 132 (1989), our Supreme Court stated that it is unnecessary to make separate determinations whether §§ 3105(1) and 3106 are fulfilled. Id., p. 458, n. 10, 446 N.W.2d 132 (overruling the conclusion that the Court previously made requiring satisfaction of both sections as a prerequisite to recovery under § 3106). Thus, where an injury arises from the use of a parked vehicle, if the circumstances under which the accident occurred are such that they implicate one of the enumerated exceptions to the parked vehicle exclusion, recovery may be had without consideration of whether the vehicle was being used "as a motor vehicle" under § 3105(1). See Mack v. Travelers Ins. Co., 192 Mich.App. 691, 694, 481 N.W.2d 825 (1992).

Defendant makes much of the fact that the crane at issue is not a "motor vehicle" as defined under the no-fault act. See M.C.L. § 500.3101(2)(e); M.S.A. § 24.13101(2)(e). However, nowhere in the no-fault act is it said that every vehicle involved in an accident must satisfy the definition of "motor vehicle" before recovery will be permitted. In fact, our Supreme Court seemed to suggest otherwise when it analyzed the circumstances in Wills v. State Farm Ins. Cos., 437 Mich. 205, 468 N.W.2d 511 (1991). In that case, the Court was faced with a situation where the plaintiff sought death benefits under the no-fault act after her husband was killed when the snowmobile he was riding collided with a parked vehicle. The Court recognized that the snowmobile was not a "motor vehicle" for the purpose of the no-fault act. Id., p. 209, 468 N.W.2d 511. Nonetheless, the Court went on to construe whether the parked vehicle fit within one of the enumerated exceptions to the parked vehicle exclusion. Id., pp. 209-214, 468 N.W.2d 511. The implication is that recovery may be permitted under an exception to the parked vehicle exclusion, notwithstanding the fact that one of the vehicles involved may not fit within the definition of "motor vehicle."

"Motor vehicle" is defined under the no-fault act as follows:

"Motor vehicle" 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. [M.C.L. § 500.3101(2)(e); M.S.A. § 24.13101((2)(e).]

Neither party disputes the fact that the truck upon which the steel was hauled to the site fits within the parameters of § 3101(2)(e). In fact, in its answer to the complaint filed in district court, defendant admits that the truck was a motor vehicle. Thus, the question whether the crane also fits within the definition of a "motor vehicle" is not dispositive, unless the circumstances are such that an exception to the parked vehicle exclusion does not apply.

We reject defendant's contention that the injury in this case arose solely out of the use of the crane. Whether an injury arises out of the use of a motor vehicle must be determined case by case. Musall v. Golcheff, 174 Mich.App. 700, 702, 436 N.W.2d 451 (1989). In making this determination, the causal connection between the injury and the use of the motor vehicle must be more than incidental, fortuitous, or but for. Marzonie v. Auto Club Ins. Ass'n., 193 Mich.App. 332, 334-335, 483 N.W.2d 413 (1992) (quoting Jones v. Allstate Ins. Co., 161 Mich.App. 450, 454-456, 411 N.W.2d 457 [1987] ). The involvement of the motor vehicle in the injury should be directly related to the character of the vehicle as a motor vehicle. Id.

In this case, we are convinced that there was a sufficient causal relationship between plaintiff's injury and the parked truck. Plaintiff was on the bed of the truck unloading steel when the injury occurred. Inasmuch as the injury occurred during the unloading process and was intricately connected to the performance of the unloading function, we conclude that the injury arose out of the use of the truck. See Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 315-316, 282 N.W.2d 301 (1979). We further note that this conclusion does not preclude a similar finding with regard to the use of the crane. Rather, § 3106(2)(a) necessarily implies that there will be an injury arising out of the use of a parked motor vehicle and another vehicle in order for recovery to be permitted. See discussion, infra.

Because plaintiff's injury arose out of the use of a motor vehicle that was parked at the time of the incident, we now turn our attention to § 3106. The relevant portions of § 3106 read as follows:

(2) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker's disability compensation act of 1969 ... are available to an employee who sustains the injury in the course of his or her employment while doing either of the following:

(a) Loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. [M.C.L. § 500.3106; M.S.A. § 24.13106.]

Construing the above provision within the facts of this case, we conclude that the circuit court properly reversed the decision of the district court.

The general rule, as codified in § 3106(1), is that accidental bodily injury is not compensable under the no-fault act where the injury arises out of the use or operation of a parked motor vehicle. McCaslin, supra, 182 Mich.App. p. 423, 452 N.W.2d 834. Further, pursuant to § 3106(2)(a), if the...