Kalin v. Detroit Auto. Inter-Insurance Exchange

• Decision Date: 08 March 1982
• Docket Number: Docket Nos. 54535,INTER-INSURANCE,54536
• Citation: 112 Mich.App. 497,316 N.W.2d 467
• Parties: , 35 A.L.R.4th 354 Roman C. KALIN and Patricia Kalin, Plaintiffs-Appellees, v. DETROIT AUTOMOBILEEXCHANGE, Defendant, and Michigan Mutual Liability Company, Defendant-Appellant. DETROIT AUTOMOBILEEXCHANGE, Plaintiff-Appellee, v. MICHIGAN MUTUAL INSURANCE COMPANY, Defendant-Appellant, and Roman C. Kalin, Jr., Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 467

316 N.W.2d 467

112 Mich.App. 497, 35 A.L.R.4th 354

Roman C. KALIN and Patricia Kalin, Plaintiffs-Appellees, v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, Defendant, and Michigan Mutual Liability Company, Defendant-Appellant.

DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, Plaintiff-Appellee, v. MICHIGAN MUTUAL INSURANCE COMPANY, Defendant-Appellant, and Roman C. Kalin, Jr., Defendant.

Docket Nos. 54535, 54536.

Court of Appeals of Michigan.

Submitted Nov. 9, 1981.

Decided Jan. 20, 1982.

Released for Publication March 8, 1982.

Franklin, Petrulis, Lichty & Mellon, P.C. by James T. Mellon and Steve J. Weiss, Troy, for Roman and Patricia Kalin.

Dickinson, Mourad, Brandt, Hanlon & Becker by Clair W. Hoehn, Detroit, for Detroit Automobile Inter-Insurance Exchange.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P.C. by Edward F. Mattingly and Ellen C. Glovinsky, Detroit, for Michigan Mut. Ins. Co.

Before MAHER, P. J., and WALSH and RILEY, JJ.

MAHER, Presiding Judge.

Plaintiffs Roman C. Kalin, Jr., and Patricia Kalin filed suit against defendants Detroit Automobile Inter-Insurance Exchange (DAIIE) and Michigan Mutual Insurance Company (Michigan Mutual) seeking no-fault benefits for injuries sustained in an accident which occurred on March 31, 1978. Plaintiffs filed a motion for summary judgment against either defendant. The circuit court granted the motion against Michigan Mutual and ordered each defendant to pay half of plaintiffs' reasonable attorney fees. Michigan Mutual appeals as of right from the order granting summary judgment.

This case concerns the proper analysis, under the no-fault act, ¹ of situations in which a parked vehicle and a moving vehicle are both involved in an accident. For the purpose of ruling on the motion for summary judgment, the parties stipulated to the following facts:

"This action concerns an accident which occurred on March 31, 1978. At the time of the accident Roman C. Kalin was in the course of his employment with Strohs Brewery. Mr. Kalin was employed as a delivery man. His job involved driving a company truck to various stores, taking orders and delivering beer. In a normal day Mr. Kalin would pick up a company truck at the plant, go on his route and return the truck to the plant at the end of his working day. Mr. Kalin's normal route would involve between twelve and twenty stops per day. Each stop involved between one and three trips between the store and the truck.

"At the time of the accident Mr. Kalin was in the course of his last delivery. The truck was parked next to the curb. Mr. Kalin had gone back and forth between the store and the truck twice and was on his third trip to the store when he was struck [by a moving vehicle]. When Mr. Kalin was struck he was pushing a hand cart loaded with beer along the left side of the truck next to the cab. He had locked the truck and proceeded fifteen feet alongside the truck with the intention of proceeding in front of the truck to the driveway.

"If Mr. Kalin had not been struck, he would have delivered the beer and returned to his truck. He would then have driven around the corner, taking inventory and returned the truck to the brewery.

"At the time of the accident Mr. Kalin owned a private vehicle which was insured with the Detroit Automobile Inter-Insurance Exchange. The owner of the car which struck Mr. Kalin was Helen Lee who was insured by Detroit Automobile Inter-Insurance Exchange. His employer's truck was insured by Michigan Mutual."

I.

Recently, in Gutierrez v. Dairyland Ins. Co., 110 Mich.App. 126, 312 N.W.2d 181 (1981), this Court addressed a similar situation involving a parked vehicle and a moving vehicle. According to Gutierrez, where a claimant suffers accidental bodily injury arising out of the ownership, operation, maintenance, or use of a moving motor vehicle as a motor vehicle, the additional involvement of a parked vehicle is irrelevant to the issue of whether such a claimant is entitled to recover no-fault benefits. ² Under this approach, analysis of an accident under the parked vehicle exclusion ³ is unnecessary unless there is no causal connection between the use, etc., of a moving vehicle and the injury. Clearly, the Legislature did not intend the parked vehicle exclusion to apply to accidents involving both a parked vehicle and a moving vehicle except where the involvement of the moving vehicle is merely incidental or fortuitous.

II.

In order to recover no-fault benefits, a claimant must establish that he has 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). Turning to the case at bar, we have no difficulty concluding that plaintiff's injuries arose out of the operation of a moving motor vehicle as a motor vehicle. ⁴ Hence, under the analysis set forth in Part I, plaintiff is entitled to recover no-fault benefits; the involvement of a parked vehicle is irrelevant.

III.

Since we have concluded that plaintiff is entitled to no-fault benefits, it is necessary to determine which defendant insurance company is responsible for those benefits. We turn first to M.C.L. § 500.3115(1); M.S.A. § 24.13115(1), which provides:

"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

"(a) Insurers of owners or registrants of motor vehicles involved in the accident.

"(b) Insurers of operators of motor vehicles involved in the accident."

Section 3115 is inapplicable if plaintiff is deemed an "occupant" of his employer's vehicle. It is therefore necessary to review the relevant case law on the "occupancy" issue.

In Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 328-331, 224 N.W.2d 896 (1975), the Supreme Court interpreted the term "occupying", as used in an automobile insurance policy, to embrace situations in which a claimant was not in physical contact with a vehicle when injured. Nickerson involved an automobile insurance policy which provided coverage for injuries sustained by any "assured" while "occupying the insured automobile". The term "occupying" was defined in the policy as "in or upon or entering into or alighting from".

Plaintiff Nickerson, a passenger in an insured vehicle, helped to push the vehicle to the side of the road after it stalled. A passing motorist was flagged down to provide assistance, and Nickerson, who had returned to the vehicle, exited from his vehicle once again and walked around to the front of the car. At this point, a third vehicle struck the stalled vehicle from behind, pushing it into Nickerson, who sustained severe injuries.

The Court concluded that Nickerson had been "occupying" the vehicle at the time of the accident, for a number of reasons:

"(1) his immediate prior 'occupying' of the insured vehicle * * * ";

"(2) his suffering of an injury arising out of the use or repair of the same automobile"; ⁵

(3) "language in an insurance policy is to be strictly construed against the insurer"; ⁶ and

(4) "unquestionably '[Nickerson] was in contact with the automobile at the time of his injury'." (Citation omitted.) ⁷

Nickerson is distinguishable from the present case on several grounds. First of all, and most significantly, Nickerson involved interpretation of an insurance policy and not construction of a statute. As the Supreme Court pointed out in Nickerson, language in an insurance policy is to be strictly construed against the insurer. ⁸ The strong policy considerations which justify strict construction of insurance policies are absent in the case at bar in which this Court is confronted with the construction of a statutory priority provision. "It is axiomatic that words in a statute are to be interpreted according to their commonly accepted meanings * * *." (Citation omitted.) Production Credit Ass'n. of Lansing v. Dep't. of Treasury, 404 Mich. 301, 312, 273 N.W.2d 10 (1978).

Secondly, the insurance policy interpreted by the Nickerson Court defined the term "occupying" as "in or upon or entering into or alighting from". Nickerson was undoubtedly "upon" the insured car when he was injured; ⁹ thus he was clearly entitled to recover under the plain language of the policy. In contrast, the no-fault act contains no such definition of the term "occupant". Consequently, we must interpret the word "occupant" according to its commonly accepted meaning. Production Credit Ass'n of Lansing, supra.

Finally, we are not convinced that plaintiff was an "occupant" of his employer's vehicle even under the Nickerson standard. The Nickerson Court concluded that Nickerson was an "occupant" due to "(1) his immediate prior 'occupying' of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same automobile". ¹⁰ We do not believe that plaintiff's injuries were sustained "immediately" after occupying his employer's vehicle, as in Nickerson. Plaintiff had gone back and forth between the store and his truck twice and was on his third trip to the store when he was struck by a moving vehicle. In contrast, Nickerson was injured almost immediately after leaving the insured vehicle.

Several panels of this Court have addressed the "occupancy" issue under the no-fault act. Ottenwess v. Hawkeye Security Ins. Co., 84 Mich.App. 292, 269 N.W.2d 570 (1978), rev'd. in part 408 Mich. 164, 289 N.W.2d 708 (1980), involved a claimant who was fatally injured while examining or attempting to repair a company dump truck. "Ottenwess was crushed to death when the dump box suddenly came down upon him, trapping him between...