Rohlman v. Hawkeye-Security Ins. Co.

• Decision Date: 01 December 1992
• Docket Number: Docket No. 92675,HAWKEYE-SECURITY
• Citation: 442 Mich. 520,502 N.W.2d 310
• Parties: Frederick Robert ROHLMAN, Plaintiff-Appellee, v.INSURANCE COMPANY, Defendant/Third-Party Plaintiff/Appellant, and Wills-Horton-Renn Agency, Defendant, and State Farm Insurance Company, Third-Party Defendant, and Automobile Club of Michigan, Third-Party Defendant/Appellee. ,
• Court: Michigan Supreme Court

Page 310

502 N.W.2d 310

442 Mich. 520

Frederick Robert ROHLMAN, Plaintiff-Appellee, v. HAWKEYE-SECURITY INSURANCE COMPANY, Defendant/Third-Party

Plaintiff/Appellant,

and

Wills-Horton-Renn Agency, Defendant,

and

State Farm Insurance Company, Third-Party Defendant,

and

Automobile Club of Michigan, Third-Party Defendant/Appellee.

Docket No. 92675, December Term, 1992.

Calendar No. 10.

Supreme Court of Michigan.

Argued Dec. 10, 1992.

Decided June 29, 1993.

Dissenting Opinion by Levin, J.,

June 30, 1993.

Beier Howlett by Gerald G. White, Robert G. Waddell, Bloomfield Hills, for plaintiff-appellee.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Thomas M. Caplis, Charles A. Huckabay, Detroit, for defendant/third-party plaintiff/appellant Hawkeye.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by A. Randolph Judd, Birmingham, (Gross & Nemeth

by James G. Gross, Detroit, of counsel), for third-party defendant/appellee.

OPINION

BRICKLEY, Justice.

In this case the plaintiff victim was struck by a hit-and-run driver in an out-of-state automobile accident while attending to a two-wheel trailer that had become detached from the vehicle he had just exited. The case presents a number of issues, not all of which are sufficiently developed for decision by this Court.

Essentially, plaintiff's recovery of personal injury protection no-fault benefits and uninsured motorist benefits is dependent on an interpretation of the term "occupant" as it appears in the no-fault statute, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq., and "occupying" as it is defined in the insurance policy issued by the defendant. ¹ This is required because PIP benefits are mandated by the statute, but uninsured motorist coverage is not.

We conclude that the term occupant in the no-[442 Mich. 523] statute is to be construed as we indicated in Royal Globe Ins. Co. v. Frankenmuth Mutual Ins. Co., 419 Mich. 565, 357 N.W.2d 652 (1984), and that under that literal interpretation, the plaintiff in this case was not an occupant of the automobile at the time of the accident for purposes of awarding PIP benefits.

Because there is evidence that the plaintiff was in physical contact with the trailer at the time of the accident, that issue, along with a peripheral issue whether the trailer was a covered vehicle for purposes of the uninsured motorist insurance, present a closer question that can only be resolved with fuller development on remand.

I

On August 5, 1985, the plaintiff, Frederick Rohlman, was a passenger in a minivan owned by Vicki Stevens, who is not a relative, registered in Michigan, and insured by defendant Hawkeye-Security Insurance Company. Ms. Stevens was driving the van through Ohio, pulling a small two-wheeled trailer that became unhitched, apparently after crossing some railroad tracks. The trailer overturned and came to rest in the center lane of the highway.

Ms. Stevens turned the van around and parked behind the trailer, and the plaintiff then got out of the van and walked ten to twenty feet toward the trailer intending to turn it over on its wheels. After approximately two minutes had passed, while the plaintiff was attempting to right the trailer, an unidentified vehicle struck the trailer and the plaintiff, injuring him severely.

The plaintiff, having no insurance of his own, sought to recover personal injury protection and uninsured motorist benefits from the defendant insurer, but was denied coverage. Plaintiff filed this declaratory action against Hawkeye on October 21, 1986, and Hawkeye moved for a summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that the plaintiff was not related to the insured, and that he was not an occupant of either the insured vehicle or the trailer. The trial court denied the motion and, by broadly interpreting the term "occupant," held that the plaintiff was an occupant of the insured van and awarded PIP and uninsured motorist benefits. ²

The Court of Appeals affirmed, distinguishing the two key cases in this area, Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975), and Royal Globe Ins. Co. v. Frankenmuth Mutual Ins. Co., 419 Mich. 565, 357 N.W.2d 652 (1984). The Court stated that "the former construed the term 'occupying' as used in a private insurance contract, while the latter construed the term 'occupant' as used in the no-fault act.... [L]anguage in an insurance policy is to be strictly construed against the insurer. Since policy language is at issue in the instant case, we are bound to follow the holding in Nickerson." 190 Mich.App. 540, 547, 550, 476 N.W.2d 461 (1991).

II

In addition to the general issue of the definition of occupant, because of the involvement of the van and the trailer, and because the insurance policy provided uninsured motorist benefits as well as PIP benefits, this case presents a number of more complicated issues that neither the trial court nor the Court of Appeals addressed. PIP benefits are mandated by statute under the no-fault act, MCL 500.3105; MSA 24.13105, and, therefore, the statute is the "rule book" for deciding the issues involved in questions regarding awarding those benefits. ³ On the other hand, the insurance policy itself, which is the contract between the insurer and the insured, controls the interpretation of its own provisions providing benefits not required by statute. ⁴ Therefore, because uninsured motorist benefits are not required by statute, interpretation of the policy dictates under what circumstances those benefits will be awarded.

That being the case, and in light of our conclusion related to the occupancy of the van, a complete analysis of these facts requires consideration of PIP benefits with respect to the van and the trailer, and then of uninsured motorist benefits also with respect to the van and the trailer. The trial court and the Court of Appeals failed to reach the trailer issue or the uninsured motorist benefits issue, presumably because both courts found the plaintiff to be an occupant of the van at least for purposes of PIP benefits.

A. PIP BENEFITS: THE VAN

The defendant argues at length that § 3111 of the no-fault act applies to the current situation because it concerns accidents occurring out of state:

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. [M.C.L. § 500.3111; M.S.A. § 24.13111. (Emphasis added.) ]

Neither the Court of Appeals nor the trial court discussed this section in resolving the present case. The plaintiff's brief, without explanation, simply states: "The Court of Appeals was correct in not discussing M.C.L. § 500.3111 [M.S.A. § 24.13111]. It was not applicable to this lawsuit." We cannot agree.

The basic facts of this case are not in dispute, and it is clear the accident occurred in Ohio. Therefore, § 3111 directly applies, placing its interpretation at issue. ⁵ A careful reading of § 3111 demonstrates that, in order to recover the plaintiff must establish a number of criteria, only two of which are at issue. The plaintiff must show that he is 1) an occupant 2) of a vehicle involved in the accident. ⁶ A negative answer to either question would dispose of the issue; however, because the definition of occupant has been the source of many disputes and has caused as many courts to agonize over what that definition should be, we are determined to resolve the confusion. ⁷

In Nickerson, supra, a pre-no-fault case, the plaintiff was a passenger in an insured automobile operated in Davison, Michigan. The car became disabled, and the occupants, while waiting for assistance, were standing outside of the vehicle. An uninsured vehicle struck the disabled vehicle from behind, pushing it into the plaintiff and causing serious injury. Id., 393 Mich. at 326, 224 N.W.2d 896. The terms of the disabled vehicle's insurance policy provided the plaintiff with uninsured motorist benefits only if he was "occupying the insured automobile." Id. at 328, 224 N.W.2d 896. In interpreting the policy's definition of "occupying": "in or upon or entering into or alighting from," this Court held that the plaintiff, because he was "occupying" the insured vehicle immediately before the accident and because his subsequent injury arose out of its use or repair, was entitled to uninsured motorist protection. Id. at 328, 331-332, 224 N.W.2d 896.

While Nickerson was based on pre-no-fault law, the occupant issue was raised again in the context of the no-fault act in Royal Globe, supra. In that case, the driver stopped in the driveway while his spouse got out of the vehicle and proceeded to walk through the garage to enter the house. When the driver began backing the vehicle into the garage it accidentally accelerated, striking the driver's spouse. The dispute was between two insurance companies to determine which was responsible for paying no-fault benefits. Resolution of the case turned on whether the injured party was an occupant of the vehicle involved in the accident as that term is used in the no-fault act. Royal Globe, 419 Mich. at 567-569, 357 N.W.2d 652.

In holding that Nickerson did not control the Royal Globe decision, this Court distinguished Nickerson in a number of ways--the most significant of which was the simple fact that Nickerson was a pre-no-fault act case and, thus, only required an interpretation of the insurance policy. ⁸ ...