King v. Aetna Cas. and Sur. Co.

• Decision Date: 09 November 1982
• Docket Number: Docket No. 56634
• Parties: James F. KING, Jr., Plaintiff-Appellee, Cross-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant, Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 528

325 N.W.2d 528

118 Mich.App. 648

James F. KING, Jr., Plaintiff-Appellee, Cross-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant Cross-Appellee.

Docket No. 56634.

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided Aug. 23, 1982.

Released for Publication Nov. 9, 1982.

Michael J. Theile, Flint, for plaintiff-appellee, cross-appellant.

Neal & Lengauer by W.L. Meuleman, III, Flint, for defendant-appellant, cross-appellee.

Before MAHER, P.J., and BRONSON and SNOW, ^* JJ.

MAHER, Presiding Judge.

Defendant-appellant Aetna Casualty and Surety Company appeals as of right an order by the trial court denying defendant's motion for summary judgment. Plaintiff-appellee James F. King, Jr. cross-appeals the trial court's refusal to award interest and attorney fees, and the trial court's ruling permitting defendant to present an affirmative defense.

Once again this Court must attempt to delineate the scope of the Michigan no-fault act. ¹ As usual, the facts are not in dispute. On December 28, 1978, plaintiff drove his car to a Kroger store in Mt. Morris, Michigan, in order to do some shopping. Plaintiff parked his car in the parking lot, locked the doors and proceeded to the store where he shopped for about ten minutes. While returning to his car, plaintiff slipped on some ice and fell, sustaining physical injury to his knee and leg. Plaintiff, while holding a bag of groceries in his left arm, had removed his car keys from his pocket and was reaching to unlock the car door when he fell. Plaintiff's hand was about two inches away from the car at the time of the fall, but he could not remember whether his key ever touched the car.

Plaintiff sued defendant in Genesee County Circuit Court, seeking no-fault benefits for injuries sustained in the accident. Prior to trial, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(3), contending that plaintiff's injuries were not compensable under the No-Fault Act. The trial court denied the motion, and a bifurcated trial was held. A jury found defendant liable for plaintiff's injuries, and the trial court assessed total damages at $27,879. Defendant appeals, and plaintiff cross-appeals.

In order to recover no-fault benefits for injuries sustained in connection with a parked vehicle, a claimant must suffer injuries falling within one of the categories enumerated in § 3106 of the No-Fault Act, which provides:

"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 contends that his injuries were sustained while he was "entering into" his vehicle. We must disagree. The undisputed facts show that plaintiff was not entering his vehicle when he slipped and fell, but was merely preparing to enter it. Because none of the three subsections of the parked vehicle exclusion (§ 3106) is applicable, plaintiff's injuries are not compensable under the No-Fault Act.

We also find that plaintiff's claim is deficient in another respect. In order to recover no-fault benefits for injuries sustained in connection with a parked vehicle, a claimant must establish both the applicability of one of the § 3106 categories and, in addition, that the injuries arose out of the ownership, operation, maintenance or use of the parked vehicle. M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975), Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 282 N.W.2d 301 (1979), Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 293 N.W.2d 782 (1980), Block v. Citizens Ins. Co. of America, 111 Mich.App. 106, 314 N.W.2d 536 (1981), Krueger v. Lumbermen's Mutual Casualty, 112 Mich.App. 511, 316 N.W.2d 474 (1982). According to Kangas, supra,

"[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 relies on McPherson v. Auto-Owners Ins. Co., 90 Mich.App. 215, 282 N.W.2d 289 (1979), lv. den. 407 Mich. 908, 285 N.W.2d 39 (1979), in support of the proposition that no such "causal connection" need be shown. We once again take the opportunity to respectfully wish McPherson a speedy burial. ²

We have no difficulty concluding that plaintiff has not shown a causal connection between the use, etc. of...