MacDonald v. Michigan Mut. Ins. Co.

• Decision Date: 20 February 1987
• Docket Number: Docket No. 84355
• Citation: 400 N.W.2d 305,155 Mich.App. 650
• Court: Court of Appeal of Michigan — District of US
• Parties: Daniel MacDONALD, Plaintiff-Appellant, v. MICHIGAN MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Page 305

400 N.W.2d 305

155 Mich.App. 650

Daniel MacDONALD, Plaintiff-Appellant, v. MICHIGAN MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Docket No. 84355.

Court of Appeals of Michigan.

Submitted Feb. 19, 1986.

Decided May 7, 1986.

Released for Publication Feb. 20, 1987.

Marshall Lasser, Southfield, for plaintiff-appellant.

Sommers, Schwartz, Silver & Schwartz, P.C., by David J. Winter, Southfield, for defendant-appellee.

Before J.H. GILLIS, P.J., and T.M. BURNS and HOOD, ^* JJ.

PER CURIAM.

Plaintiff appeals from an order of the circuit court granting defendant's motion for summary judgment pursuant to GCR 1963, 117.2(3).

Plaintiff injured his back on May 6, 1982, during the course of his employment as a mechanic for a trucking company and as a result received benefits pursuant to the workers' compensation act. The injury occurred when plaintiff pulled up on a lever to release a pin holding a trailer box in place over the trailer axle. The purpose of releasing the pin was to permit the trailer box to slide over the axle so that the position of the wheels relative to the box could be changed; sliding the trailer box back and forth would place the wheels closer to the front or closer to the back of the trailer. After the lever is pulled to release the pin, the trailer is moved by being pulled forward or pushed back by the tractor or cab. While the box is being moved in this fashion, the wheels of the trailer are locked and remain stationary throughout the process.

Plaintiff filed a complaint claiming entitlement to benefits pursuant to the Michigan no-fault act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq. On November 4, 1983, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), claiming that plaintiff was performing mechanical work when the injury occurred and was therefore barred by M.C.L. § 500.3106(2); M.S.A. § 24.13106(2) from recovering no-fault benefits. The trial court denied the motion.

Subsequently, plaintiff filed a motion for summary judgment under GCR 1963, 117.2(3), and defendant responded with its own motion under that subrule. On March 15, 1985, the lower court denied plaintiff's motion and granted defendant's cross-motion, concluding the plaintiff was working as a motor vehicle mechanic and was performing a function within the scope of his employment duties at the time of the injury. It would appear, then, that the trial court found that plaintiff was in fact performing mechanical work at the time of his injury, contrary to its ruling on defendant's earlier motion for summary judgment under rule 117.2(1).

Pursuant to M.C.L. § 500.3105; M.S.A. § 24.13105, no-fault benefits are available for "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle," subject to the provisions of the no-fault act. As mentioned above, one of those provisions, M.C.L. § 500.3106(2), was relied upon by the trial court in finding plaintiff ineligible for benefits. Section 3106(2) provides as follows:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker's disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle."

In finding plaintiff ineligible for no-fault benefits under the above provision, the trial court obviously concluded that the vehicle in question, i.e., the trailer, was parked at the time of the injury. Plaintiff now argues that § 3106 is inapplicable because the vehicle was not in fact parked since the tractor was moving back and forth slightly in order to reposition the trailer box in relation to the wheels. However, plaintiff never raised this issue before the trial court, apparently conceding the trailer's status as a parked vehicle. Defendant argues that plaintiff has waived his right to raise the issue on appeal, while plaintiff contends that this general rule is not applicable since consideration of the claim is necessary to a proper resolution of the case and the question is one of law which may be decided without reference to material issues of fact in dispute. Harris v. Pennsylvania Erection & Construction, 143 Mich.App. 790, 795, 372 N.W.2d 663 (1985). Although we do not condone plaintiff's failure to raise this issue before the trial court, we agree that the parties do not materially dispute the facts surrounding the incident, and since it is necessary to a proper resolution of the case, we will consider the issue.

Although not an easy question to answer in light of the unique factual situation presented, we believe that, in determining whether the vehicle was in fact parked, the focus should be on the wheels, rather than the trailer box. Under the no-fault act, a motor vehicle is defined as a vehicle, including a trailer, designed for operation on a public highway by power other than muscular power. M.C.L. § 500.3101(2)(c); M.S.A. § 24.13101(2)(c). Since it is the wheels of the trailer, rather than the box, which enable its operation on a highway, we conclude that only the movement of the former is relevant in determining whether the vehicle was parked. Here, defendant was injured when he pulled a lever which would allow movement of the trailer box over the axles. At the time of the injury, the wheels of the trailer were locked by the brakes and thus did not move during the procedure which led to the plaintiff's injury. Therefore, we conclude that the vehicle was parked, as that term is used in § 3106 of the no-fault act.

The next question presented, then, is whether the trial court erred in finding that the injury, which indisputably arose in the course of plaintiff's employment and for which workers' compensation benefits were available, occurred while plaintiff was "doing mechanical work on a vehicle...." M.C.L. § 500.3106(2). We believe so. Plaintiff was a mechanic employed to service vehicles on his employer's premises. He was injured while working on a vehicle which was completely stationary. Neither his occupation nor his injury were related to the hazards of moving vehicles. Thus, he fits squarely within the group to which the Legislature, by adoption of § 3106(2), evidenced an intent to deny no-fault benefits.

It could be argued that since plaintiff was not repairing a defect but was only shifting the trailer's axle from one normal position to another to alter its operating characteristics, plaintiff was not doing mechanical work. However, if plaintiff's purpose had been to restore the axle to a position from which it had been moved by accident or mistake, plaintiff would more clearly be deemed to have been repairing a defect and doing mechanical work. We believe that to distinguish on this basis would be both pointless and irrelevant to the language and purpose of § 3106(2). Therefore, we conclude that a mechanic engaged in servicing a vehicle, whether he is engaged in repairing a defect, performing preventive maintenance or making an adjustment to alter operating characteristics, is performing mechanical work within the meaning of § 3106(2).

Furthermore, even if one were to conclude that plaintiff was not doing mechanical work, he would not be entitled to no-fault benefits since § 3106(2) also provides for ineligibility where the injury occurred while the employee was loading or unloading the vehicle. In Bell v. F.J. Boutell Driveaway Co., 141 Mich.App. 802, 369 N.W.2d 231 (1985), this Court had an opportunity to consider this aspect of § 3106(2) and concluded that the terms should be broadly construed to encompass the complete operation of loading and unloading, including "activities preparatory to the actual lifting onto or lowering of property." 141 Mich.App. 809, 369 N.W.2d 231.

Applying this broad definition of the terms "loading" and "unloading," it is clear that plaintiff not entitled to no-fault benefits. Plaintiff admitted in his deposition that his purpose in pulling the lever which releases a pin holding the trailer axle in place was so that the trailer could be backed into the loading dock more easily. The purpose for backing into the dock was to either load or unload the trailer. Therefore, at the time of his injury, plaintiff was engaged in an activity preparatory to the actual procedure of loading or unloading goods from the trailer. Pursuant to Bell, supra, this brings plaintiff's injury within the contemplation of § 3106(2).

As his final argument, plaintiff makes the conclusory statement that, even assuming § 3106(2) is otherwise applicable to bar his claim, he is nonetheless entitled to benefits as a result of the last portion of that section, which excludes from its effect injuries which "arose from the use or operation of another vehicle." Plaintiff contends that his injury arose out of the operation of the tractor, thus bringing this portion of the statute into application.

We disagree. In Kalin v. Detroit Automobile Inter-Ins Exchange...