Michigan Northern Ry. Co. v. Auto-Owners Ins. Co.

• Citation: 440 N.W.2d 108,176 Mich.App. 706
• Decision Date: 05 June 1989
• Docket Number: AUTO-OWNERS,Docket No. 91147
• Parties: MICHIGAN NORTHERN RAILWAY COMPANY and National Ben Franklin Insurance Company, as Subrogee of Michigan Northern Railway Company, Plaintiffs-Appellees, v.INSURANCE COMPANY and Kalkaska County Road Commission, Defendants-Appellants.
• Court: Court of Appeal of Michigan (US)

Page 108

440 N.W.2d 108

176 Mich.App. 706

MICHIGAN NORTHERN RAILWAY COMPANY and National Ben Franklin

Insurance Company, as Subrogee of Michigan

Northern Railway Company, Plaintiffs-Appellees, v. AUTO-OWNERS INSURANCE COMPANY and Kalkaska County Road

Commission, Defendants-Appellants.

Docket No. 91147.

Court of Appeals of Michigan.

Submitted Oct. 20, 1987.

Decided May 1, 1989.

Released for Publication June 5, 1989.

Foster, Meadows & Ballard, P.C. by Richard A. Dietz, Detroit, for plaintiffs-appellees.

Barney, Hofmann & Gano (by Charles H. Gano), Petoskey, for defendants-appellants.

Before KELLY, P.J., and DOCTOROFF and CORDEN, ^* JJ.

CORDEN, Judge.

Defendants appeal by leave granted from an order granting partial summary disposition to plaintiffs. The trial court held that there was no genuine issue of material fact with regard to liability under the no-fault act.

On November 24, 1982, a train owned by Michigan Northern Railway Company (plaintiff) traveled north from Cadillac to Petoskey. The train passed over the Leetsville Road crossing, in Kalkaska County, at approximately 9:30 a.m. without problem. Shortly thereafter, a Kalkaska County Road Commission employee plowed the southbound lane of Leetsville Road, passing over the railroad crossing. The northbound lane of Leetsville Road was plowed at approximately 2:30 p.m.

On its return trip along the same track, the plaintiff's train, traveling at about twenty miles per hour, approached the Leetsville Road crossing at about 3:10 p.m. As the train drew near the crossing, the crew saw a pile of dirt on the tracks and attempted to stop the train by using the emergency brake. However, the engine proceeded through the crossing into the dirt, derailed, and turned over on its side. For the purposes of this appeal, we will assume the dirt caused the train to derail and that the dirt was left on the tracks by the snowplow.

Plaintiff and its insurer as subrogee sued the Kalkaska County Road Commission and its no-fault insurance carrier. In addition to the no-fault violation, plaintiff also alleged a violation of the Unfair Trade Practices Act, negligence, and trespass. Both plaintiffs and defendants moved for summary judgment. The circuit court ruled that plaintiffs were entitled to property protection benefits from defendants as a matter of law under § 3121 of the no-fault act. The parties then stipulated to and the court ordered the entry of a certification of a controlling question of law.

In determining whether plaintiff is entitled to recover no-fault property protection benefits we must look at the relevant statute. M.C.L. § 500.3121(1); M.S.A. § 24.13121(1) provides:

"(1) Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3123, 3125 and 3127."

M.C.L. § 500.3123(1); M.S.A. § 24.13123(1) provides

"(1) Damage to the following kinds of property is excluded from property protection insurance benefits:

"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred."

Thus, we must decide (1) whether the train engine was a vehicle operated or designed for operation on a public highway, and thus excluded from coverage under § 3123, and (2) whether the damage to plaintiff's tangible property arose out of the ownership, operation, maintenance or use of defendant's motor vehicle.

In the no-fault act, a "motor vehicle" is defined as:

"... a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels." M.C.L. § 500.3101(2)(c); M.S.A. § 24.13101(2)(c).

However, when different statutes address the same subject or purpose they are considered in pari materia, and must be read together as constituting a single body of law. State Bar of Michigan v. Galloway, 124 Mich.App. 271, 277, 335 N.W.2d 475 (1983), aff'd 422 Mich. 188, 369 N.W.2d 839 (1985). Thus, we also look at the definition of vehicle found in the Michigan Vehicle Code:

" 'Vehicle' means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home as defined in section 2 of [176 Mich.App. 710] Act No. 419 of the Public Acts of 1976, being section 125.1102 of the Michigan Compiled Laws." M.C.L. § 257.79; M.S.A. § 9.1879.

The train engine is clearly excluded as a vehicle under the Vehicle Code. We reject defendants' contention that the train qualifies as a motor vehicle because it was being operated on a public highway when it entered the road crossing. A train operates on stationary rails within the railway company's right-of-way, not on a highway. See Chesapeake & Ohio R. Co. v. St Paul Fire & Marine Ins. Co., 701 F.2d 573 (CA 6, 1983).

We next address the issue of whether the accident arose out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. The test used to determine this issue was adopted by this Court in Kangas v. Aetna Casualty & Surety Co, 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975):

"[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."

In Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 333-334, 367 N.W.2d 388 (1985), this Court summarized the line of cases that followed Kangas:

"Other decisions by this Court have held that a person assaulted while sitting in a motor vehicle is not entitled to no-fault benefits as herein sought. See, e.g., Ciaramitaro v State Farm Ins Co, 107 MichApp 68, 69-70; 308 NW2d 661 (1981), lv den 413 Mich 861 (1982) (plaintiff's decedent was killed by an armed assailant while conducting his normal door-to-door produce business from his truck); Detroit Automobile Inter-Ins Exchange v. Higginbotham, 95 Mich App 213, 221-222; 290 NW2d 414 (1980), lv den 409 Mich 919 (1980) (plaintiff forced to the curb by her estranged husband, trapped in her car, and then shot by her husband several times by a revolver); Hamka v Automobile Club of Michigan, 89 Mich App 644, 645; 280 NW2d 512 (1979) (plaintiff struck in the nose by a pedestrian's fist while plaintiff was sitting in his car at an intersection); O'Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526, 530; 280 NW2d 583 (1979), lv den 406 Mich 1014 (1979) (plaintiff shot in the hip while trying to evade an assailant entering the passenger side of his car)." (Emphasis changed.)

The test was recently clarified in Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986). The Court indicated that the statute shows that the Legislature intended to provide coverage only where the causal connection between the injury and the use of a motor vehicle...