Jones v. Employers Ins. of Wausau

• Decision Date: 16 April 1987
• Docket Number: Docket No. 87440
• Citation: 157 Mich.App. 345,403 N.W.2d 130
• Parties: Kenneth JONES, Plaintiff-Appellant, v. EMPLOYERS INSURANCE OF WAUSAU, Defendant-Appellee, and Detroit Automobile Inter-Insurance Exchange and Michigan Mutual Insurance Company, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 130

403 N.W.2d 130

157 Mich.App. 345

Kenneth JONES, Plaintiff-Appellant, v.EMPLOYERS INSURANCE OF WAUSAU, Defendant-Appellee and Detroit Automobile Inter-Insurance Exchange and Michigan Mutual Insurance Company, Defendants.

Docket No. 87440.

Court of Appeals of Michigan.

Submitted May 8, 1986.

Decided Jan. 21, 1987.

Released for Publication April 16, 1987.

McCroskey, Feldman, Cochrane & Brock by Robert O. Chessman, Muskegon, for plaintiff-appellant.

Dykema, Gossett, Spencer, Goodnow & Trigg by R. Curtiss Mabbitt, Grand Rapids, for defendant-appellee.

Before HOLBROOK, P.J., and WAHLS and DODGE, ^* JJ.

HOLBROOK, Presiding Judge.

PlaintiffKenneth Jones appeals as of right from the order entered in Muskegon Circuit Court granting defendant Employers Insurance of Wausau's (Wausau)motions for reconsideration and for summary judgment.We affirm.

On September 8, 1982, plaintiff was employed by William W. Kimmins & Son to cut metal away from the face of a building which Kimmins had contracted to dismantle.While performing the work plaintiff was enclosed in a cage which had been raised by a forklift.The cage and forklift were used in this way as a substitute for scaffolding to reach the metal on the building.Plaintiff sustained severe back injuries when the cage fell off the forklift and toppled twenty-five feet to the ground.

Plaintiff brought suit against Detroit Automobile Inter-Insurance Exchange (DAIIE), his no-fault insurer; Michigan Mutual Insurance Company, the insurer of the owner of the forklift, Wausau, the insurer of Kimmins; and the lessor of the forklift.Plaintiff alleged that his injuries arose out of the ownership, operation, maintenance or use of the forklift as a motor vehicle.M.C.L. § 500.3105(1);M.S.A. § 24.13105(1).DAIIE and Michigan Mutual were subsequently dismissed pursuant to their motions for summary judgment.Defendant Wausau filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3) which was initially denied.Subsequently, plaintiff was granted partial summary judgment against Wausau on the basis that the forklift constituted a motor vehicle within the meaning of M.C.L. § 500.3101(2)(c);M.S.A. § 24.13101(2)(c).Wausau moved for reconsideration of that order, which was granted, and summary judgment in Wausau's favor was entered on August 24, 1985.

On appeal, the issue is whether the forklift was a motor vehicle within the scope of M.C.L. § 500.3101(2)(c);M.S.A. § 24.13101(2)(c).That statute states in part: "(c)'[m]otor 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."

There is no dispute that the forklift at issue had four wheels, an engine and was self-propelled.Hence, with respect to those two requirements, the forklift fell within the classification of "motor vehicle."Cf.Citizens Ins. Co. of America v. Detloff, 89 Mich.App. 429, 280 N.W.2d 555(1979), lv. den.407 Mich. 864(1979).On the other hand, there is no dispute that plaintiff's alleged injuries occurred while the forklift was being operated in the parking lot of the construction site and not on a public highway.Hence, the dispute at issue is whether the forklift used to raise plaintiff's cage was designed for operation on a public highway.Plaintiff's claim can succeed only if the forklift is found to have been so designed.

In Ebernickel v. State Farm Mutual Automobile Ins. Co., 141 Mich.App. 729, 367 N.W.2d 444(1985), lv. den.422 Mich. 971(1985), the plaintiff was injured by a hi-lo while it was being operated on private property.This Court rejected the plaintiff's claim that, because the hi-lo could be operated on a public highway, it was a motor vehicle within the meaning of § 3101.Rather, the Court held that the hi-lo was not an item designed primarily for highway use and therefore was not within the meaning of "motor vehicle."Ebernickel, supra, 731-732, 367 N.W.2d 444.

Similarly, in Apperson v. Citizens Mutual Ins. Co., 130 Mich.App. 799, 344 N.W.2d 812(1983), the plaintiff, a spectator at a "street stock" car race, was injured by a wheel which flew off a vehicle in the race.This Court ruled that cars which had been designed or modified for racing on a track were not designed for use upon public highways and therefore were not motor vehicles.Apperson, supra, 802, 344 N.W.2d 812.

We find Ebernickel and Apperson to be dispositive in the instant case.Although the forklift at issue could be operated on a public highway, it was not being operated on a public highway at the time of the accident.The ability to use the forklift on the highway does not indicate that it was "designed" for such use.SeeMcDaniel v. Allstate Ins. Co., 145 Mich.App. 603, 608, 378 N.W.2d 488(1985).Here, the forklift was not designed for use upon public highways.It had one seat and no windshield, no windows, no doors, no turn signals, no backup lights, no headlights and no taillights.There was neither a speedometer nor an odometer.The forklift had only two gears--high and low.It reached a maximum speed of only fifteen miles per hour in high gear.Consequently, we conclude that the forklift was not a motor vehicle within M.C.L. § 500.3101(2)(c);M.S.A. § 24.13101(2)(c) and therefore summary judgment in defendant's favor was appropriate.

We note at this point that defendant's original motion for summary judgment, which was initially denied by the trial court, was brought pursuant to both GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10).In later granting defendant's motion for reconsideration and, consequently, defendant's motion for summary judgment, the trial court failed to specify upon which ground...