Gutierrez v. Dairyland Ins. Co.
| Decision Date | 06 October 1981 |
| Docket Number | Docket No. 50996 |
| Citation | 312 N.W.2d 181,110 Mich.App. 126 |
| Parties | Doroteo GUTIERREZ, Plaintiff-Appellant, v. DAIRYLAND INSURANCE COMPANY, State of Michigan, Assigned Claims Plan, and Farm Bureau Mutual Insurance Company, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
McCroskey, Libner, VanLeuven, Feldman, Cochrane & Brock, P.C., Grand Rapids, for plaintiff-appellant.
Rhoades, McKee & Boer by Michael J. Roberts, Grand Rapids, for Dairyland Ins. Co.
Dilley, Dewey & Waddell, P.C. by Jonathan S. Damon, Grand Rapids, for Farm Bureau Mut. Ins. Co.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Joseph B. Bilitzke and Warren R. Snyder, Asst. Attys. Gen., for the Assigned Claims Facility.
Before R. B. BURNS, P. J., and MAHER and KALLMAN, * JJ.
Plaintiff appeals by right the orders of the trial court granting summary judgment in favor of all defendants pursuant to GCR 1963, 117.2(3).
On the afternoon of March 26, 1977, plaintiff Doroteo Gutierrez was performing his duties as a service station attendant at a Clark Service Station in Holland, Michigan. At approximately 3:50 p. m. he was standing behind a stationary 1970 Ford Falcon pumping gasoline into its fuel tank when a 1969 Dodge coasted into the station and struck plaintiff, pinning him between the Dodge and the Falcon. As a result of this accident Mr. Gutierrez was seriously injured.
At the time of the accident plaintiff was not a named insured on any motor vehicle insurance policy. 1 The Ford was owned by Shirley Montgomery, operated by her daughter, Cynthia Rossiter, and insured by State Auto Mutual Insurance Company. The Dodge was owned by a young man named Anthony Smith and operated by a young woman named Carolina Castro. 2 It was allegedly insured by defendant Dairyland Insurance Company, but since this is a matter in dispute it will be necessary to set out some additional facts.
On February 21, 1976, Anthony Smith purchased the 1969 Dodge from a used car dealer in Detroit. At the time, Smith was 18 years old and was purchasing his first car. Although his family lived in Detroit, Smith was a student at the Grand Valley State Colleges and resided at the Campus View Apartments in Allendale, Michigan. On the subject of insurance, the car dealer referred Smith across the street to the Michigan Standard Insurance Agency where he spoke with Mr. Vincenzo Commisso, an agent for the Dairyland Insurance Company. Smith paid $60, good for two months' premiums on a policy with Dairyland, and was issued a certificate of no-fault insurance. Smith indicated that the policy and premium notices were to be sent to his mother's address in Detroit. The only address listed on the insurance application, however, was "4110 Campus View Apts". No policy or premium notices were ever received by either Smith or his mother, and despite several attempts neither was able to contact Mr. Commisso. The record does reflect that Dairyland sent a renewal notice to "4110 Campus View Apartments, Detroit, Michigan" on April 5, 1976, but the notice was not, of course, received and no additional premium was ever paid. Accordingly, Dairyland considered the policy automatically expired on April 21, 1976. The accident took place one year, one month, and five days after the issuance of the policy.
Plaintiff sought to recover no fault benefits from Dairyland. Dairyland denied coverage on the basis that the policy had expired. Plaintiff then filed a claim with the Assigned Claims Facility of the State of Michigan. The claim was assigned to defendant Farm Bureau Mutual Insurance Company. Farm Bureau also denied the claim, contending that personal protection insurance benefits applicable to plaintiff's injuries were available either from Dairyland or from State Auto, the insurer of the Ford. Plaintiff then brought suit seeking the payment of benefits either from Dairyland or Farm Bureau. All defendants moved for summary judgment. The trial court initially granted summary judgment in favor of Dairyland, holding that Dairyland did not insure the Dodge on the date of the accident, but denied the motions of the remaining two defendants, holding that since the Ford was "parked" the Ford's insurer was not liable under § 3106 of the no-fault act, M.C.L. § 500.3106; M.S.A. § 24.13106.
Farm Bureau then moved for reconsideration, drawing the trial court's attention to the decision of this Court in Heard v. State Farm Mutual Automobile Ins. Co., 93 Mich.App. 50, 286 N.W.2d 46 (1979), lv. gtd. 408 Mich. 896 (1980). The Heard Court held that when a person is pumping gasoline into a car the second exception to the § 3106 exclusion applies, M.C.L. § 500.3106(b); M.S.A. § 24.13106(b). Although the trial court in the instant case disagreed with this aspect of Heard, it felt bound by the decision and, on reconsideration, granted summary judgment in favor of Farm Bureau and the Assigned Claims Facility, holding that insurance applicable to plaintiff's injuries was available from State Auto, the insurer of the Ford. See M.C.L. § 500.3172; M.S.A. § 24.13172.
On appeal, plaintiff presents two issues for our consideration. The first presents few problems. Plaintiff insists that at the time of the accident Dairyland still insured Smith's Dodge. He argues that Smith's policy was never effectively cancelled since a notice of cancellation was never received. The problem with plaintiff's argument is that Dairyland never attempted to cancel the policy. Instead, it expired by its own terms. The accident occurred one year, one month, and five days after the policy was issued. The policy was actually good for only two months. At his deposition, Smith testified that when he purchased the insurance he was aware that at the most it was good for only 6 months. In addition, even if the policy specified no term it could be considered expired instead of "cancelled" after one year. M.C.L. § 500.3208; M.S.A. § 24.13208. Because the policy expired, there was no requirement to give notice of cancellation. M.C.L. § 500.3208; M.S.A. § 24.13208. Because it was impossible for plaintiff's claim against Dairyland to be supported at trial, the trial court did not err in granting summary judgment in favor of Dairyland pursuant to GCR 1963, 117.2(3). Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973).
The second issue, concerning whether the trial court properly granted summary judgment in favor of defendants Farm Bureau and the Assigned Claims Facility, is more problematic. As argued in the trial court and on appeal, the issue is whether plaintiff should recover from the Ford's insurer, State Auto, or from the assigned claims insurer, Farm Bureau. Since the assigned claims insurer is only liable if there is no other personal protection insurance applicable to the injury, no other applicable insurance can be identified, or such other insurance is not available in a sufficient amount, M.C.L. § 500.3172; M.S.A. § 24.13172, Farm Bureau is not liable on plaintiff's claim if the insurance provided by State Auto is applicable 3 to his injuries. Thus, as more precisely defined, the issue is whether State Auto's insurance on the Ford is applicable to plaintiff's injuries in the instant case.
The parties and the trial court addressed this issue in terms of the parked vehicle exclusion found in § 3106 of the no-fault act:
"(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.
For the purpose of summary judgment the parties stipulated to the fact that the Ford was "parked" at the time of the accident. The parties and the trial court apparently proceeded on the basis that if the Ford was parked benefits could not be recovered from State Auto unless one of the exceptions to the parked vehicle exclusion applied. Argument centered around the applicability of the exception found in § 3106(b). As previously noted, the trial court originally held that exception inapplicable, but reversed itself after reconsideration in light of Heard v. State Farm Mutual Ins. Co., supra. Based on Heard, the trial court held that under § 3106(b) an exception to the parked vehicle exclusion applied to the instant case. Accordingly, the trial court found that insurance from State Auto applied to the instant case.
Although we ultimately reach the same result as the trial court and affirm, we do so for different reasons. Our disagreement with the rationale of the trial court's holding (and, for that matter, with this Court's analysis in Heard ), centers on our belief that the parked vehicle exclusion is inapplicable in the instant case.
In order to establish that he is entitled to personal protection insurance benefits plaintiff must establish that he suffered 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; M.S.A. § 24.13105, Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 250-251, 293 N.W.2d 782 (1980); Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 314-315, 282 N.W.2d 301 (1979), lv. den. 407 Mich. 895 (1979). On the basis of the stipulated facts presented to the trial court, we hold that as a matter of law plaintiff's injuries arose out of the operation and use of a motor vehicle (Smith's 1969 Dodge) as a motor vehicle. Plaintiff's injuries were directly...
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