Rednour v. Hastings Mut. Ins. Co.

• Decision Date: 30 May 2003
• Docket Number: No. 119187, Calendar No. 4.,119187, Calendar No. 4.
• Citation: 661 N.W.2d 562,468 Mich. 241
• Parties: Nickolas REDNOUR, Plaintiff-Appellee, v. HASTINGS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
• Court: Michigan Supreme Court

661 N.W.2d 562

468 Mich. 241

Nickolas REDNOUR, Plaintiff-Appellee, v. HASTINGS MUTUAL INSURANCE COMPANY, Defendant-Appellant.

No. 119187, Calendar No. 4.

Supreme Court of Michigan.

Argued January 15, 2003.

Decided May 30, 2003.

Logeman, Iafrate, Januszewski & Pollard, P.C. by Robert E. Logeman and James A. Iafrate, Ann Arbor, for plaintiff-appellee.

Keith P. Felty, Bingham Farms, and Collins, Einhorn, Farrell & Ulanoff, P.C. by J. Mark Cooney, Southfield, for defendant-appellant.

OPINION

CORRIGAN, C.J.

We granted leave to appeal to consider the proper definition of the word "occupying" in the no-fault automobile-insurance policy at issue in this case. We hold that plaintiff was not "occupying" the vehicle as that term is defined in the policy because he was outside the vehicle and approximately six inches from it when the other automobile struck him. We thus reverse the judgment of the Court of Appeals and reinstate the trial court's decision.

I. Underlying facts and procedural posture

Plaintiff was driving a friend's car in Ohio. The left rear tire of the vehicle became flat. To change the tire, plaintiff left the car, loosened the lug nuts, and began to walk toward the rear of the car. An oncoming automobile then struck plaintiff and threw him against the car he had been driving, injuring him. Plaintiff admitted that he had not been touching his friend's car and that he had been approximately six inches from it when the other vehicle struck him.

The vehicle plaintiff had been driving was insured under Michigan's no-fault insurance act, M.C.L. § 500.3101 et seq., with defendant Hastings Mutual Insurance Company. Plaintiff contended that he was "occupying" the vehicle as that term had been defined in defendant's policy and that he thus was entitled to personal injury protection (PIP) benefits. After defendant denied the claim, plaintiff filed a complaint seeking payment of the benefits. Defendant moved for summary disposition under MCR 2.116(C)(10) on the ground that plaintiff had not established a genuine issue of material fact regarding whether he had been "occupying" the insured vehicle when he was injured. The trial court granted defendant's motion.

On review, the Court of Appeals reversed.¹ It treated the word "occupying" as ambiguous and construed it against defendant, the drafter of the policy. On that basis, the Court concluded that plaintiff was "occupying" the vehicle within the meaning of that term in the policy.

Defendant filed an application for leave to appeal, which we granted. 467 Mich. 869 (2002).

II. Standard of review

We review de novo a trial court's ruling on a motion for summary disposition. Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002). The interpretation of a contract presents a question of law that we also review de novo. Archambo v. Lawyers Title Ins. Corp., 466 Mich. 402, 408, 646 N.W.2d 170 (2002).

III. Discussion

A. Statutory and contractual provisions

The no-fault act sets forth the circumstances in which benefits are available for out-of-state accidents. M.C.L. § 500.3111 states:

Personal protection insurance benefits are payable for accidental bodily injury suffered in an accident occurring out of this state, if the accident occurs within the United States, its territories and possessions or in Canada, and the person whose injury is the basis of the claim was at the time of the accident a named insured under a personal protection insurance policy, his spouse, a relative of either domiciled in the same household or an occupant of a vehicle involved in the accident whose owner or registrant was insured under a personal protection insurance policy or has provided security approved by the secretary of state under subsection (4) of section 3101. [Emphasis added.]

Plaintiff was not a named insured or a spouse or relative of a named insured. Thus, the statute provides that to obtain PIP benefits, plaintiff must qualify as an "occupant" of an insured vehicle involved in the accident. The no-fault act does not define the word "occupant."

The insurance policy at issue states:

A. We do not provide Personal Injury Protection Coverage for "bodily injury":

* * *

3. Sustained by any "insured" while not "occupying" an "auto" if the accident takes place outside Michigan. However, this exclusion does not apply to:

a. You; or

b. Any "family member".

The policy defines "occupying" as "in, upon, getting in, on, out or off."

B. Case law

This Court has previously considered whether a person was either an "occupant" of, or "occupying," a vehicle. In Nickerson v. Citizens Mut. Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), a case before the no-fault act, the plaintiff left a stalled vehicle and walked to the front of the car. An uninsured motorist struck the stalled automobile and pushed it into the plaintiff, injuring him. The plaintiff sought uninsured-motorist benefits. The policy provided benefits to an "assured" who was "occupying the insured automobile." The policy defined "occupying" as "in or upon or entering into or alighting from." Id. at 328, 224 N.W.2d 896.

The Nickerson Court construed the policy against the drafter to grant benefits. Id. at 330, 224 N.W.2d 896. It stated that the insured vehicle had touched the plaintiff when he was injured and that the plaintiff was thus "upon" the car. Id. at 330-331, 224 N.W.2d 896. The Court further suggested that physical contact was not required in the circumstances presented in Nickerson.

In Royal Globe Ins. Co. v. Frankenmuth Mut. Ins. Co., 419 Mich. 565, 357 N.W.2d 652 (1984), a priority dispute between two insurers hinged on whether the injured person was "an occupant" of a company vehicle under § 3114 of the no-fault act. A woman had gotten out of her husband's company car and walked sixty feet to a garage. The husband then accidently struck the garage and his wife with the car. This Court held that she was not "an occupant" of the company car under § 3114. This Court distinguished Nickerson as a case predating no-fault:

And, unlike the concern in Nickerson, what is more directly implicated here is the need to further the goal of the no-fault act which seeks to provide victims of motor vehicle accidents with prompt reparation for their losses. That purpose is better served in cases such as the one before us by the certainty and predictability that a literal construction of the word "occupant" will yield, when it is assigned its primary and generally understood meaning. [Id. at 575, 357 N.W.2d 652.]

"Whatever her status was after she left the motor vehicle in the street and walked some 60 feet to the rear of the garage where the [company car] struck her, [the wife] was `not an occupant' of the vehicle when she was injured." Id. at 576, 357 N.W.2d 652.

Next, in Rohlman v. Hawkeye-Security Ins. Co. (Rohlman I), 442 Mich. 520, 502 N.W.2d 310 (1993), the plaintiff was struck and injured on a highway in Ohio while attempting to retrieve a trailer that had become unhitched from a van. The plaintiff sought PIP benefits and uninsured-motorist benefits from the insurer of the van. This Court held that the plaintiff was not an "occupant" of the van for the purpose of obtaining PIP benefits. This Court again noted that Nickerson was a case predating no-fault. Under the no-fault act, most "accidents are now covered by personal injury protection benefits or the assigned claims plan. Therefore, the repeal of the uninsured motorist statute and passage of the no-fault act largely eliminated the motivating factors underlying the Nickerson decision." Id. at 529, 502 N.W.2d 310. This Court did not decide whether the policy in Rohlman I afforded broader coverage than the no-fault act because the parties did not raise that issue.

In addressing the meaning of "occupant" in § 3111, the Rohlman I Court noted that subsection 3106(1)(c) of the no-fault act provides coverage for a person injured "while occupying, entering into, or alighting from [a parked] vehicle." The Rohlman I Court concluded:

The Legislature expressly recognized that "entering into" and "alighting from" are acts separate from "occupying" a vehicle.... Section 3111 does not include "entering into" or "alighting from" the vehicle as acts that would trigger personal protection benefits for an out-of-state accident.

By giving the term occupant its primary and generally understood meaning coupled with the above statutory reference, we conclude that the plaintiff was not an occupant of the van because he was not physically inside the van when the accident occurred. We find this interpretation consistent with our Royal Globe decision and the intent of the no-fault act. [Rohlman I, supra at 531-532, 502 N.W.2d 310 (emphasis added).]

The Rohlman I Court remanded the case to the Court of Appeals to consider whether the plaintiff was an occupant of the trailer for the purposes of the no-fault statute and whether the plaintiff was occupying the van or the trailer for the purposes of the uninsured-motorist provision of the policy. The Court of Appeals considered those issues on remand in Rohlman v. Hawkeye-Security Ins. Co. (On Remand) (Rohlman II), 207 Mich.App. 344, 526 N.W.2d 183 (1994). It concluded that the plaintiff was not an occupant of the trailer under the Rohlman I definition because he was not "physically inside" it.

The policy in Rohlman II required the plaintiff to have been "occupying" the insured vehicle to obtain uninsured-motorist benefits. The policy defined "occupying" as "in, upon, getting in, on, out or off." Id. at 351, 526 N.W.2d 183. The Court noted that the word "getting" appears to modify the words "in, on, out, or off" because the policy could not cover everyone who was "out" or "off" the vehicle, and because the word "on" was synonymous with "upon," which was included elsewhere in the definition. The plaintiff was not getting in, on, out, or off the van or the trailer when the accident occurred.

A question remained whether ...