Kudek v. Detroit Auto. Inter-Insurance Exchange, INTER-INSURANCE
| Decision Date | 08 October 1980 |
| Docket Number | Docket No. 45223,INTER-INSURANCE |
| Citation | 300 N.W.2d 350,100 Mich.App. 635 |
| Parties | Loretta Nell KUDEK, Individually and as Administratrix of the Estate of Ronald Steven Kudek, Deceased, Plaintiff-Appellee, v. DETROIT AUTOMOBILEEXCHANGE, a Michigan corporation,Defendant-Appellant, and Michigan Mutual Insurance Company, a Michigan Corporation, Defendant. 100 Mich.App. 635, 300 N.W.2d 350 |
| Court | Court of Appeal of Michigan — District of US |
[100 MICHAPP 636] Clair W. Pike, Detroit, for defendant-appellant; Carl L. Gromek, Detroit, of counsel.
Joan Lovell, Detroit, for plaintiff-appellee.
Before BRONSON, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.
Defendant Detroit Automobile Inter-Insurance Exchange (hereinafter defendant Exchange) appeals by right the trial court's grant of [100 MICHAPP 637] summary declaratory judgment in favor of plaintiff.
Plaintiff's decedent, Ronald Kudek, was a self-employed mechanic. While working on the dual wheel and tire assembly of a customer's truck the wheel exploded, resulting in the injuries that led to his death. Kudek's personal vehicle was insured by defendant Exchange under a policy of no-fault insurance. His widow brought suit against defendant Exchange and the Michigan Mutual Insurance Company, insurer of the truck, seeking to recover personal protection insurance benefits. The parties stipulated to the facts, and brought motions for summary judgment. The trial court dismissed Michigan Mutual from the case and granted summary judgment in favor of plaintiff on the ground that there was no issue of material fact and plaintiff was entitled to judgment as a matter of law. GCR 1963, 117.2(3).
There is no dispute as to the propriety of summary judgment, nor does there appear to be a dispute as to the applicability of M.C.L. § 500.3105; M.S.A. § 24.13105, which authorizes the payment of personal protection benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle". See Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 313-315, 282 N.W.2d 301 (1979), lv. den. 407 Mich. 895 (1979). Rather, the issue in this case is whether the truck was "parked", so that benefits were properly denied under the exclusion for parked vehicles found in M.C.L. § 500.3106; M.S.A. § 24.13106, which states:
"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:
[100 MICHAPP 638] "(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
Under this section, benefits are not payable for accidental bodily injury arising out of the maintenance of a "parked" vehicle, unless one of the specific exceptions apply.
Plaintiff does not try to fit into any of the exceptions, but argues instead that the truck was not parked. The term "parked" is not defined in the no-fault act, so plaintiff turns to the Michigan Vehicle Code where the following definition is found:
" 'Parking' means standing a vehicle, whether occupied or not, upon a highway, when not loading or unloading except when making necessary repairs." M.C.L. § 257.38; M.S.A. § 9.1838.
From this definition plaintiff contends that (1) because the truck was not on a highway, but rather in decedent's shop, it was not "parked" and (2), in any event, the vehicle was not parked because necessary repairs were being made. Plaintiff argued in the trial court that unless this definition was adopted for purposes of the no-fault act persons injured while changing tires or making other necessary repairs on the highway would be excluded from recovering personal protection benefits. Plaintiff finally argues that the ordinary and common usage of the term "parked" does not [100 MICHAPP 639] encompass vehicles, whether on or off the highway, which are undergoing repairs.
Defendant Exchange argues that the truck in this case was clearly parked and that none of the exceptions apply. It further contends, based on the various legislative proposals considered during debate on the no-fault act, including section 1(a)(6) of the Uniform Motor Vehicle Accident Reparations Act, 14 ULA, p. 51, that the Legislature did not intend no-fault benefits to be payable in cases where a person was injured while servicing a vehicle in the course of a business and while on business premises. Defendant Exchange agrees that the Legislature did not intend to deny benefits to a person injured while making necessary repairs on a highway, and would read M.C.L. § 257.38; M.S.A. § 9.1838 into the no-fault act to that extent.
A recent decision of this Court also supports the defendant Exchange's position. In Miller v. Auto-Owners Ins. Co., 92 Mich.App. 263, 284 N.W.2d 525 (1979), lv. gtd. 408 Mich. 897 (1980), the plaintiff was installing shock absorbers on his car in the parking lot of his apartment building when the car fell from the supports used to elevate the rear end, crushing his chest. The trial court defined parking as the voluntary and temporary act of leaving a vehicle not in use. Because the trial court found that the plaintiff had not left his vehicle, but instead was working on it, it held the vehicle was not parked within the meaning of the statute. After analyzing M.C.L. § 500.3106; M.S.A. § 24.13106, this Court reversed, holding the trial court's definition to be too narrow. The Court noted that the statute excluded benefits for bodily injury arising from the maintenance of a parked vehicle, apparently wondering how a person could be engaged in the maintenance of a vehicle that had been left. The [100 MICHAPP 640] Court also observed that if the trial court's definition were accepted, the exceptions in subsections (b) and (c) of M.C.L. § 500.3106 would be meaningless. Accordingly, the Court held the car to have been parked:
...
To continue reading
Request your trial