Rohlman v. Hawkeye-Security Ins. Co.
| Citation | 526 N.W.2d 183,207 Mich.App. 344 |
| Decision Date | 07 November 1994 |
| Docket Number | Docket No. 167399,HAWKEYE-SECURITY |
| Parties | Frederick Robert ROHLMAN, Plaintiff-Appellee, v.INSURANCE COMPANY, Defendant-Third Party Plaintiff-Appellant (On Remand). |
| Court | Court of Appeal of Michigan (US) |
Siemion, Huckabay, Bodary, Padilla, & Morganti, P.C. by Thomas M. Caplis, Detroit, for Hawkeye-Security Ins. Co.
Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by James H Before WAHLS, P.J., and REILLY and JANSEN, JJ.
Schoolmaster, and (Gross & Nemeth by James G. Gross, of counsel), Detroit, for Auto Club Ins. Ass'n.
ON REMAND
This matter is before this Court upon remand from the Michigan Supreme Court. Defendant Hawkeye-Security Insurance Company initially appealed from an order of the circuit court granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). This Court affirmed the court's order by a two-to-one decision in Rohlman v. Hawkeye-Security Ins. Co., 190 Mich.App. 540, 476 N.W.2d 461 (1991) (Judge Reilly dissenting). The Supreme Court reversed this Court's decision and remanded the case to resolve additional issues not addressed in this Court's earlier opinion. 442 Mich. 520, 502 N.W.2d 310 (1993). Having considered those issues, we reverse and remand for further proceedings.
For purposes of analyzing the issues, the alleged facts of this case are reiterated. On August 5, 1985, plaintiff was a passenger in a minivan owned by Vicki Stevens, registered in Michigan, and insured by Hawkeye. Stevens was driving the van through Ohio, pulling a small two-wheeled trailer, which was owned by her mother, Effie Stevens, and insured by third-party defendant Auto Club Insurance Association. As Stevens was driving, the trailer became unhitched, overturned, and came to rest in the center lane of the highway. Stevens turned the van around and parked approximately ten to twenty feet behind the trailer. Plaintiff walked to the trailer and attempted to turn it over onto its wheels. Plaintiff alleged that, while he was lifting the trailer, he was struck by an unidentified vehicle that left the scene, and he sustained serious injuries.
Plaintiff filed an action against Hawkeye, seeking a declaratory judgment of his right to obtain personal injury protection (PIP) benefits and uninsured motorist benefits under the no-fault insurance policy issued to Vicki Stevens. Hawkeye subsequently moved for summary disposition on the basis that plaintiff was not entitled to no-fault benefits because he was not "occupying" either the van or the trailer at the time of the accident. The trial court denied the motion, relying primarily on the Michigan Supreme Court's holding in Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), and ruled that plaintiff was "occupying" the van at the time of the accident because: (1) if the trial court had not found plaintiff, an uninsured person, to be an occupant of the van, plaintiff would have had no recovery for his injuries; 1 and (2) public policy reasons support a purposely broad construction of the policy term "occupying" because "plaintiff alighted from the van to right a trailer which had been attached to it when he was injured."
This Court affirmed the trial court's ruling. In reversing our decision, the Supreme Court noted that the issue whether plaintiff was entitled to PIP benefits was to be determined under the statutory provisions of the no-fault act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq., § 3111, M.C.L. § 500.3111; M.S.A. § 24.13111. In examining this section, the Court held that plaintiff was not entitled to PIP benefits in connection with the van because he was not an "occupant" of the van as that term is used in § 3111. The Supreme Court further remanded the case to this Court and directed us to consider:
1) For purposes of PIP benefits, whether Rohlman was an occupant of the trailer and, if so, whether the trailer was a covered vehicle;
2) For purposes of uninsured motorist benefits, whether Rohlman was occupying either the van or the trailer, as it is defined in the Hawkeye policy. [442 Mich. at 535, 502 N.W.2d 310.]
As noted by the Supreme Court, § 3111 of the no-fault act determines whether a person who is injured in an accident outside the State of Michigan qualifies for PIP benefits:
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 ... 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 (4) of section 3101.
Plaintiff must establish that he was (1) an occupant (2) of a vehicle involved in the accident. 442 Mich. at 527, 502 N.W.2d 310.
Because the term "occupant" is not defined by the no-fault act, this Court must construe the language of the statute by assigning to the term its primary and generally understood meaning consistent with the apparent intention of the Legislature in enacting the law. Royal Globe Ins. Cos. v. Frankenmuth Mutual Ins. Cos., 419 Mich. 565, 357 N.W.2d 652 (1984). In finding that plaintiff was not an "occupant" of the van, the Supreme Court in Rohlman stated:
Although the no-fault act does not define the terms occupant or occupying, other sections of the act provide guidance in determining its meaning. Subsection 3106(1)(c) of the act states in part:
The Legislature expressly recognized that "entering into" and "alighting from" are acts separate from "occupying" a vehicle. See Royal Globe, supra at 574, n 5 . 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. [442 Mich. at 531-532, 502 N.W.2d 310.]
In light of the definition applied by the Supreme Court, we find that plaintiff was not an occupant of the trailer because he was not "physically inside" the trailer. Although plaintiff claims that his hands were on the trailer, he admits that he was standing beside it with both feet on the pavement and with no intention of entering it. The fact that he was allegedly in actual contact with the trailer is not sufficient to transform him into an occupant in light of the Supreme Court's analysis distinguishing the act of being an occupant from the acts of entering into and alighting from a vehicle. Therefore, plaintiff is not entitled to PIP benefits in connection with the trailer under § 3111. 2 Accordingly, we remand to the trial court for entry of an order granting Hawkeye's motion for summary disposition pertaining to PIP benefits.
The issue whether plaintiff is entitled to uninsured motorist benefits is controlled by Stevens' insurance policy with Hawkeye. The policy dictates the circumstances under which uninsured motorist benefits will be awarded because the no-fault act does not require an insured to provide these benefits. 442 Mich. at 525, 502 N.W.2d 310. See also Kreager v. State Farm Mutual Automobile Ins. Co., 197 Mich.App. 577, 581-582, 496 N.W.2d 346 (1992). Consequently, our duty is to determine, from the policy language used, the apparent intention of the contracting parties. Doubtful or ambiguous terms must be construed in favor of the insured and against the insurer, the drafter of the contract. Royal Globe, supra, 419 Mich. at 573, 357 N.W.2d 652.
Under the uninsured motorist provision of the insurance policy issued by Hawkeye, an injured person is entitled to uninsured motorist benefits if the injury occurred by accident and was sustained by a "covered person." A covered person is the insured, a family member of the insured, or any other person "occupying" the "covered auto." Hawkeye has conceded that the trailer, as well as the van, was a covered auto for purposes of uninsured motorist coverage. The term "occupying" is defined in the policy as "in, upon, getting in, on, out or off."
As noted above, it is clear from plaintiff's allegations that he was not "in" the van or the trailer at the time of the accident. The question remains whether plaintiff was "upon, getting in, on, out or off" either of the vehicles. Because the parties could not realistically have intended that any stranger who is injured in an accident involving the covered vehicle and an uninsured motorist would be occupying the covered auto if it could only be shown that the stranger was somewhere "off" the vehicle, or "out" of the vehicle, we conclude that the words "out or off" must be read in connection with the preceding word "getting." If the injured person were "getting out or off" the covered auto, then the person would be considered to be "occupying" it. Similarly, we conclude that the word "on," following "getting in" and preceding ...
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