Johnston v. Hartford Ins. Co.

• Decision Date: 20 March 1984
• Docket Number: Docket No. 66226
• Parties: Robert JOHNSTON, Plaintiff-Appellee, v. HARTFORD INSURANCE COMPANY, Defendant-Appellant, and Canadian Universal Insurance Inc., Aetna Insurance Company, and Secretary of State, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 549

346 N.W.2d 549

131 Mich.App. 349

Robert JOHNSTON, Plaintiff-Appellee, v. HARTFORD INSURANCE COMPANY, Defendant-Appellant, and Canadian Universal Insurance Inc., Aetna Insurance Company,

and Secretary of State, Defendants.

Docket No. 66226.

Court of Appeals of Michigan.

Submitted Aug. 1, 1983.

Decided Jan. 3, 1984.

Released for Publication March 20, 1984.

Daniel Loznak, Cheboygan, for plaintiff-appellee.

Rhoades, McKee & Boer by Michael W. Betz, Grand Rapids, for defendant-appellant.

Before V.J. BRENNAN, P.J., and SHEPHERD and QUINNELL, ^* JJ.

SHEPHERD, Judge.

Defendant, plaintiff's no-fault insurer, appeals a July 29, 1982, order granting summary judgment in favor of plaintiff on the question of whether a vehicle on which plaintiff was injured was a motor vehicle.

On appeal, plaintiff and defendant Hartford (hereafter referred to as defendant) have stipulated to the following facts.

Robert Johnston was an employee of Detroit Crane on May 4, 1980. His job involved the operation of a mobile crane, a load-lifting device mounted on a truck chassis. The truck chassis had multiple wheels, was powered by an internal combustion engine, and was designed to be operated on the highway while in the "travel mode". Approximately one and one half weeks before he was injured, Mr. Johnston had driven the crane (while in the "travel mode") from an out-state job site to Detroit. Once the crane arrived on the construction site, it was rigged to perform its function as a crane. It was driven to a convenient location on the job site. The gantry (the supporting framework for the boom) was hydraulically lifted to a point 24 feet above the ground. Outriggers were placed and hydraulically actuated to lift the back wheels of the crane off the ground. Forty-eight tons of counterweights were attached to the back of the crane and six tons of counterweights were attached to the front of the crane, the purpose of which was to lift structural steel and other objects onto the top of the construction project.

The rigging of the crane took three days to complete and, upon completion of the rigging, the crane could not have been driven. The crane had two different cabs, one holding the controls for operation of the lifting devices and the other containing the controls for driving the crane when it was in its driveable mode.

On the day of the accident, with the crane fully rigged, Mr. Johnston had lifted a steel beam onto the top of a building that was under construction. He received a signal from the workmen on top of the building to take a break while they positioned the beam. Leaving the steel beam suspended from the lifting cable, plaintiff got out of the cab used to operate the lifting functions of the crane and was proceeding across the top of the crane to the other cab so he could fill out his time tickets. In the process of climbing up into the "driving" cab to get his time tickets, he put his foot on the step of the cab and slipped, losing his balance. He caught himself before he actually fell to the ground, but in the process ruptured a disc in his back.

On May 8, 1981, Mr. Johnston initiated suit in the Circuit Court for the County of Cheboygan against defendant-appellant Hartford Insurance Company, the no-fault insurer for his own personal-use auto; Aetna Insurance Company, the no-fault fleet insurer for the Detroit Crane Company; Canadian Universal Insurance Company, Inc., the general liability carrier for Detroit Crane Company, and the Secretary of State, Assigned Claims Fund. In that suit, Mr. Johnston sought to recover the differential then permitted by the no-fault statute between what he had received under workers' compensation and what he could receive under the Michigan No-fault Automobile Insurance Act.

The trial court granted plaintiff-appellee's Motion for summary judgment on July 14, 1982. Judgment on the court's verdict (ruling that the crane was a motor vehicle under the no-fault act) was entered on July 29, 1982.

The trial court found, as a matter of law, that the crane was a motor vehicle within the meaning of the no-fault act. The court also held that "use" of a motor vehicle was not a controlling factor where an object had the characteristics of a motor vehicle, and found that the accident met the criteria of the parked vehicle provisions of the no-fault act, MCL 500.3106; M.S.A. § 24.13106, and that there was a causal relationship between the crane and plaintiff's injury. The court therefore granted plaintiff's motion for summary judgment under GCR 1963, 117.2(3).

On appeal, defendant contends that the trial court erred in granting summary judgment in favor of plaintiff. We agree.

Under GCR 1963, 117.2(3), the trial judge could grant summary judgment when "there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law". The facts were stipulated to by both parties and thus the court could grant summary judgment under GCR 1963, 117.2(3). Summary judgment in favor of Johnston would only be error if the court's rulings on the substantive legal issues were incorrect.

The first such ruling challenged by defendant is the trial court's determination that the stationed crane was a motor vehicle as a matter of law.

Michigan's no-fault act contains the following definitions:

"(2) As used in this chapter: * * *

"(c) '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. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b of Act No. 300 of the Public Acts of 1949.

"(d) 'Motor vehicle accident' means a loss involving the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle regardless of whether the accident also involves the ownership, operation, maintenance, or use of a motorcycle as a motorcycle." M.C.L. § 500.3101; M.S.A. § 24.13101.

Although there is no Michigan case law dealing with the classification of a crane in this situation, the trial court found that the crane was a motor vehicle under the statutory definition set forth above, relying on H.R. Weissberg Corp. v. New York Underwriters Ins. Co., 260 Md. 417, 272 A.2d 366 (1971), which held that a crane did not lose its identification as a vehicle when it was immobilized by outriggers. The trial court also relied on another Cheboygan Circuit Court opinion which, in turn, had relied on Weissberg, supra, and Donahue Construction Co. v. Transport Indemnity Co., 7 Cal.App.3d 291, 86 Cal.Rptr. 632 (1970).

In Donahue, a mobile truck crane was unloading pipe from a truck. A piece of pipe struck a worker. The crane was moved during the unloading process but was stopped at the time of the accident. The outriggers on the crane had not been extended to make the crane immobile. The court was faced with the question of whether an insurance policy on the crane would cover this situation. The court relied on California's Vehicle Code in defining a vehicle under the insurance policy, regarding the code as applicable to every policy of liability insurance. The court found the crane to be a vehicle and a motor vehicle under the code, which defined a vehicle as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved by human power or used exclusively upon stationary rails or tracks", and a motor vehicle as "a vehicle which is self-propelled". 7 Cal.App.3d 300, 86 Cal.Rptr. 638. The court found that the endorsement to the policy, which imposed liability for the use of motor vehicles and all vehicles operated by the insured, covered the crane. Donahue, however, is factually distinguishable from the instant case in that the crane in Donahue was not immobile. That crane was a dual-function piece of equipment, but was not restricted to one function, and was actually moved during the unloading process.

In Weissberg, supra, a hotel was struck by the boom of a moveable crane engaged in demolition work. The crane was immobilized at the time of the accident. The court, interpreting an extended coverage endorsement to a fire insurance policy covering "a direct loss by * * * vehicles", found the crane to be a vehicle under existing case law but expressly distinguished cases construing automobile liability policies. 260 Md. 423, 272 A.2d 368-369.

In Smedley v. Milwaukee Automobile Ins. Co., 12 Wis.2d 460, 107 N.W.2d 625 (1961), the plaintiff sued for negligent operation of an outriggered, immobilized crane and sought to join the crane operator's insurer under Wisconsin statute. The Court held that the crane was not a motor vehicle for purposes of the lawsuit, but based its ruling on the use of the crane at the time of the accident. The Court stated that "if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle". 12 Wis.2d 466; 107 N.W.2d 628. (In contrast to Smedley, the trial court in the instant case held that the "use" was not a controlling factor once the crane was characterized as a motor vehicle.)

We find that the crane, while moving, met the statutory requirements for a "motor vehicle". It was designed to be operated upon the public highway by other than muscular power and had more than two wheels. The dual purpose of the crane standing by itself is insufficient to remove it from "motor vehicle" status under M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). The situation here may be analogized to that presented in Kelly v. Inter-City Truck Lines Inc., 121 Mich.App. 208, 210, 328 N.W.2d 406 (1982) where, in holding that a trailer which was unattached to a truck cab was still a motor vehicle under the no-fault act, this Court stated:

"We can conceive of situations in which the owner of a trailer might show that it is no longer 'designed for operation on a public highway'. * * * The present case is...