Krueger v. Lumbermen's Mut. Cas. and Home Ins. Co.

• Decision Date: 08 March 1982
• Docket Number: Docket No. 54802
• Citation: 112 Mich.App. 511,316 N.W.2d 474
• Parties: Alvin E. KRUEGER, Plaintiff-Appellant, v. LUMBERMEN'S MUTUAL CASUALTY AND HOME INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 474

316 N.W.2d 474

112 Mich.App. 511

Alvin E. KRUEGER, Plaintiff-Appellant, v. LUMBERMEN'S MUTUAL CASUALTY AND HOME INSURANCE COMPANY,

Defendant-Appellee.

Docket No. 54802.

Court of Appeals of Michigan.

Submitted Oct. 7, 1981.

Decided Jan. 20, 1982.

Released for Publication March 8, 1982.

William G. Reamon, P. C. by Janet T. Neff, Grand Rapids, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge by John M. Grostic, Grand Rapids, for defendant-appellee.

Before MAHER, P. J., and HOLBROOK and ROBINSON ^*, JJ.

MAHER, Presiding Judge.

Plaintiff-appellant Alvin E. Krueger appeals by right an order by the circuit court granting defendant-appellee Lumbermen's Mutual Casualty Company's motion for summary judgment.

Once again this Court must attempt to delineate the scope of the Michigan No-Fault Act. ¹ The facts are not in dispute. Plaintiff was employed as a delivery salesman for the Cadillac Overall Company. His job, which involved delivering and picking up uniforms and other items, required frequent loading and unloading of his step van. On May 4, 1977, plaintiff parked his van in the parking area located in the entrance of the Michigan Tractor & Machinery Company, for the purpose of making a delivery. While remaining in the front seat, he picked up three large mats weighing approximately 30 pounds. He then began to climb out of the vehicle, placing his right foot on the ground. He thereupon brought his left foot down into a hole in the ground, which caused injury to his left ankle and lower back. When the accident took place, he was no longer in contact with the vehicle.

Plaintiff then brought suit against his employer's insurance carrier, defendant Lumbermen's Mutual Casualty Company (hereinafter "Lumbermen's Mutual"), seeking no-fault insurance benefits. Lumbermen's Mutual subsequently filed a motion for summary judgment, contending that there was "no issue as to any material fact" and that it was "entitled to judgment in its favor as a matter of law". The circuit court granted this motion and entered an order for summary judgment, prompting the present appeal.

I

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.

Subsection (c) of the parked vehicle exclusion (§ 3106) exempts injuries sustained while "alighting from the vehicle". Plaintiff contends that he was "alighting" from his vehicle when he was injured. The trial court disagreed, ruling that plaintiff was not "alighting" at the time of the injury.

We address first plaintiff's contention that summary judgment was inappropriate. Plaintiff claims that two factual issues remained: (1) whether plaintiff was alighting from the vehicle when the injury occurred; and (2) whether plaintiff's injuries arose out of the use of a motor vehicle. This argument betrays a fundamental misunderstanding of the difference between questions of law and questions of fact. The parties agree on the events that transpired on the day in question. They only disagree about whether those events establish that plaintiff was "alighting" and that his injuries "arose out of the use of a vehicle". These are legal issues, not factual issues. See Dembinski v. Aetna Casualty & Surety Co., 76 Mich.App. 181, 256 N.W.2d 69 (1977). ² Since no genuine issues of material fact remained, we reject plaintiff's initial contention.

We must disagree, however, with the circuit court's conclusion that plaintiff was not "alighting", within the meaning of § 3106 and his employer's insurance policy, at the time of the injury. There is no statutory definition of the term "alighting" and little case law. ³ The court below felt that since plaintiff was no longer in contact with the vehicle when the injury occurred, he had completed the process of alighting from the vehicle. Although it is unnecessary to attempt a complete definition of the term at this time, we are convinced that an individual has not finished "alighting" from a vehicle at least until both feet are planted firmly on the ground. Consequently, we hold that the circuit court erred in concluding that plaintiff's injuries did not fall within § 3106(c).

II

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. MCL 500.3105(1); MSA 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. ---, 314 N.W.2d 536 (1981). 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...