Griffin v. Lumbermens Mut. Cas. Co.

• Decision Date: 15 December 1983
• Docket Number: Docket No. 62816
• Parties: Martin GRIFFIN, Plaintiff-Appellee, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 163

341 N.W.2d 163

128 Mich.App. 624

Martin GRIFFIN, Plaintiff-Appellee, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-Appellant.

Docket No. 62816.

Court of Appeals of Michigan.

Submitted Jan. 20, 1983.

Decided Sept. 13, 1983.

Released for Publication Dec. 15, 1983.

Marshall Lasser, P.C. by Marshall Lasser, Southfield, for plaintiff-appellee.

Barbier, Goulet & Petersmarck, P.C. by John L. Salter, Mount Clemens, for defendant-appellant.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

MAHER, Judge.

Defendant appeals from the trial court's order denying the defendant's motion for summary judgment pursuant to GCR 1963, 117.2(3).

The facts are undisputed. On March 13, 1979, the plaintiff drove his employer's truck-trailer to the Jackson plant of the Detroit Rendering Company and backed his vehicle up to the loading dock. He got out of the truck and climbed half-way up the flight of stairs onto the loading dock to see if the truck was correctly positioned. When he was satisfied that the trailer was properly positioned, the plaintiff turned to go back to the truck. As he turned, the plaintiff slipped and fell, sustaining severe injuries.

Plaintiff gave defendant written notice of his claim for no-fault wage benefits, as required by M.C.L. § 500.3145; M.S.A. § 24.13145. Defendant refused to pay plaintiff the claimed no-fault benefits, whereupon plaintiff brought this lawsuit.

The question on appeal is whether, on the undisputed facts, the plaintiff is entitled to no-fault benefits as a matter of law.

In order to recover no-fault benefits for injuries sustained where only a parked vehicle is involved, the plaintiff must pass a two-part test. Krueger v. Lumbermen's Mutual Casualty Co., 112 Mich.App. 511, 316 N.W.2d 474 (1982). ¹ First, the plaintiff must demonstrate that his injury falls within one of the categories enumerated in § 3106 of the no-fault act. At the time of the accident, that section provided: ²

"Sec. 3106. 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." M.C.L. § 500.3106; M.S.A. § 24.13106.

Plaintiff argues that subsection (c) applies insofar as he was injured while "occupying" his truck. I disagree.

Plaintiff relies on McPherson v. Auto-Owners Ins. Co., 90 Mich.App. 215, 282 N.W.2d 289 (1979), lv. den. 407 Mich. 908 (1979), in which this Court construed the term "occupying". In McPherson, the plaintiff had temporarily parked her car and, while in the process of going around it to remove her grandson from the back seat, she slipped and fell on an obstruction in the highway. In ruling that the plaintiff was injured while occupying her vehicle, the Court applied the following test:

"[T]he appropriate test [is] one of continuity of action. Under this test the appropriate inquiry is to determine the intent of the injured person with regard to the automobile. Even if the person is temporarily out of or away from the auto, coverage will be found if the person intends a continued use of the car." 90 Mich.App. 219, 282 N.W.2d 289.

Plaintiff argues that, under McPherson, he was occupying his truck when he was injured since, at that time, the plaintiff was in the process of returning to his vehicle. I am not inclined, however, to follow McPherson.

McPherson based its ruling on the Supreme Court's decision in Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975). In Nickerson, the plaintiff was a passenger in the insured vehicle. The car stalled and plaintiff helped to push it to the side of the road. A passing motorist was then flagged down. The plaintiff, who had returned to the vehicle, exited from the vehicle once again and, while walking in front of the stalled vehicle, was injured when a third vehicle struck the stalled car, pushing it into plaintiff. The Court held that, under the automobile insurance policy, the plaintiff had been occupying the vehicle at the time of the accident.

In Kalin v. Detroit Automobile Inter-Ins. Exchange, 112 Mich.App. 497, 316 N.W.2d 467 (1982), this Court seriously questioned the validity of applying Nickerson to construe the no-fault act. See also, Davis v. Auto-Owners Ins. Co., 116 Mich.App. 402, 323 N.W.2d 418 (1982). First, the Court noted that Nickerson construed an automobile insurance policy, not a statute. An insurance policy is to be construed against the insurer whereas statutory language is to be given its ordinary meaning. Second, the Court pointed out that the policy involved in Nickerson defined "occupying"; the no-fault act, by contrast, does not define this term.

While providing some guidance, Nickerson does not command that this Court follow its broad construction of "occupying" when construing the no-fault act. Inasmuch as this Court in McPherson merely read Nickerson into the no-fault act, I decline to adopt its interpretation of "occupying" under § 3106.

In construing "occupying" as used in § 3106 I am guided by this Court's construction of the term "occupant" as it appears in §§ 3114 ³ and 3115 ⁴ of the no-fault act. It is a "settled principle that doubtful or ambiguous provisions of a statute are construed not in isolation but with reference to and in the context of related provisions * * * ". Guitar v. Bieniek, 402 Mich. 152, 158, 262 N.W.2d 9 (1978). The cases which have construed "occupant" ⁵ tend to require either physical contact with the vehicle at the time of the injury or occupancy of the vehicle immediately prior to the accident. See Kalin, supra, 112 Mich.App. pp. 506-507, 316 N.W.2d 467. I believe that these factors are also relevant in construing "occupying" as used in § 3106.

In the present case, the plaintiff was not in physical contact with the truck-trailer when he was injured. Nor had he occupied the cab of the vehicle immediately prior to the accident. Thus, the plaintiff did not sustain an injury while "occupying" a vehicle as that term is used in § 3106.

Nor does plaintiff's injury satisfy the second condition for recovery under § 3106. Plaintiff's injury did not "arise out of" the ownership, operation, maintenance or use of his vehicle as a motor vehicle. The requisite causal connection was described by this Court in Kansas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975):

"[W]hile the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."

Plaintiff's injury was not "foreseeably identifiable" with the ownership, etc., of his vehicle as a motor vehicle. Cf. Block v. Citizens Ins. Co. of America, 111 Mich.App. 106, 314 N.W.2d 536 (1981). See also, Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 293 N.W.2d 782 (1980).

Under the undisputed facts, the plaintiff may not recover no-fault benefits as a matter of law. The trial court, therefore, erred in denying defendant's motion for summary judgment.

HOOD, Judge (concurring).

I concur in reversal because it is clear that plaintiff's slip and fall and injury was "without causal connection with the ownership, maintenance and use of" the truck. Block v. Citizens Ins. Co. of America, supra.

Reversed. Defendant may tax costs.

T.M. BURNS, Judge, dissenting.

I disagree with Judge Maher in that he declines to follow McPherson v. Auto-Owners Ins. Co., 90 Mich.App. 215, 282 N.W.2d 289 (1979), lv. den. 407 Mich. 908 (1979), since it is based on the Supreme Court's holding in Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975). In Nickerson, the Court found that physical contact with a vehicle was not necessary for a finding that a person was "occupying" the vehicle according to the term of an insurance contract. 393 Mich. 331, 224 N.W.2d 896. While the Court, in part, based its holding on the rules of interpretation of insurance contracts, the Court stated:

"[P]erhaps most significantly, as Judge McGregor and plaintiff point out, it guards against recovery based entirely upon 'fortuitous circumstance'." 393 Mich. 331, 224 N.W.2d 896.

Recent authority has also applied Nickerson to determine whether injuries arose out of the use of a motor vehicle as defined in the no-fault act. Ohio Casualty Ins. Group v. Robinson, 127 Mich.App. 138, 338 N.W.2d 898 (1983).

In the instant case, the claimant momentarily stepped out of the cab of the truck and climbed a few steps onto the loading dock to see if the trailer was aligned properly. Upon determining that it was, he was proceeding to the rear of the truck to unhitch the trailer when he was injured.

Plaintiff was not standing on the steps upon which he slipped and fell because of a mere coincidence. To properly use the truck it was necessary for him to climb the stairs. This created the risk which caused plaintiff's injuries.

The vehicle in this case provided not only the occasion of the injury, McPherson, supra 90 Mich.App. p. 220, 282 N.W.2d 289, but was one of the causes of the injury. The fact that there was an independent cause does not bar plaintiff's cause of action. As stated in Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 282 N.W.2d 301 (1979):

"Where use of the vehicle is one of the causes of the injury,...