Miller v. Auto Owners Ins. Co., Docket No. 78-3028

• Decision Date: 05 September 1979
• Docket Number: Docket No. 78-3028
• Citation: 284 N.W.2d 525,92 Mich.App. 263
• Parties: Richard J. MILLER, Plaintiff-Appellee, v. AUTO OWNERS INSURANCE CO., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 525

284 N.W.2d 525

92 Mich.App. 263

Richard J. MILLER, Plaintiff-Appellee, v. AUTO OWNERS INSURANCE CO., Defendant-Appellant.

Docket No. 78-3028.

Court of Appeals of Michigan.

Sept. 5, 1979.

Released for Publication Nov. 9, 1979.

C. Mark Hoover, Lansing, for defendant-appellant.

John F. Rohe, Petoskey, for plaintiff-appellee.

Before MAHER, P. J., and KELLY and WALSH, JJ.

MAHER, Presiding Judge.

Defendant appeals as of right a May 8, 1978 circuit court order denying its motion for summary judgment and granting plaintiff's motion for partial summary judgment on the issue of liability.

On June 10, 1977, plaintiff, who had purchased two shock absorbers which he intended to install himself, drove his car to the parking lot of his apartment building and parked his car. He placed blocks of wood in front of each front wheel and elevated the rear wheels by means of an hydraulic jack placed under the differential gear. Plaintiff then placed a large block of wood under each rear wheel and lowered the jack until the tires rested upon the blocks. This done, plaintiff crawled under the car to begin installing the shock absorbers.

It soon became clear to plaintiff that in order to install the shock absorbers he would have to remove the tire. He therefore raised the car again and removed the block under the left tire, again lowering the jack until the car rested partly on the jack and partly on the block under the right rear tire. After removing the left tire assembly, plaintiff crawled back under the car and continued installation of the shock absorbers. While he was so engaged, the automobile fell, crushing plaintiff's chest.

Plaintiff seeks recovery of personal protection insurance benefits pursuant to a "no-fault" insurance contract between the parties in this action. On April 28, 1978, the trial court granted plaintiff's motion for partial summary judgment and denied defendant's motion.

In granting plaintiff's motion, the trial court performed a two-step analysis. First, it determined that plaintiff was engaged in the maintenance of his motor vehicle as a motor vehicle pursuant to M.C.L. § 500.3105; M.S.A. § 24.13105. Secondly, the court determined that the "parked vehicle" exclusion of M.C.L. § 500.3106; M.S.A. § 24.13106 (hereinafter § 3106) was inapplicable to the present case. The trial court defined "parking" as: "(1) a voluntary and temporary act; (2) the act of leaving the vehicle; and (3) the vehicle must not be in use." Reasoning that, because "Plaintiff did not leave his vehicle according to the common usage of the term", he had not parked the vehicle within the meaning of the statute, the court held that plaintiff could recover personal protection insurance benefits from his insurer.

We believe that the trial court adopted too restrictive a definition of the term "parking". M.C.L. § 500.3106; M.S.A. § 24.13106 provides:

"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." (Emphasis added.)

If a driver or owner of a vehicle must leave the vehicle and forego using it in...