Shanafelt v. Allstate Ins. Co.

• Decision Date: 23 July 1996
• Docket Number: Docket No. 186268
• Citation: 552 N.W.2d 671,217 Mich.App. 625
• Parties: Orville SHANAFELT and Joyce Shanafelt, Plaintiffs-Appellees/Cross-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 671

552 N.W.2d 671

217 Mich.App. 625

Orville SHANAFELT and Joyce Shanafelt Plaintiffs-Appellees/Cross-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant/Cross-Appellee.

Docket No. 186268.

Court of Appeals of Michigan.

Submitted June 5, 1996, at Grand Rapids.

Decided July 23, 1996, at 9:05 a.m.

Released for Publication Sept. 13, 1996.

Parmenter O'Toole by Timothy G. Hicks, Muskegon, for plaintiffs.

Straub, Seaman & Allen, P.C. by Carol J. Wilson and Joseph R. Enslen, Grandville, for defendant.

Before O'CONNELL, P.J., and SAWYER and G.R. CORSIGLIA, ^* JJ.

O'CONNELL, Presiding Judge.

In this no-fault insurance action, defendant insurer appeals as of right the order of the circuit court granting summary disposition on the issue of liability in favor of plaintiffs. Defendant also appeals the final judgment, and plaintiffs cross appeal this order as well, with both parties challenging the amount of damages awarded. We affirm the order granting summary disposition in favor of plaintiffs and the awards of damages and attorney fees, but vacate the final judgment and remand for a determination of statutory and penalty interest.

In winter, 1994, plaintiff Joyce Shanafelt (hereinafter plaintiff) and her husband ¹ dined at a Muskegon restaurant. After finishing their meal and leaving the restaurant, plaintiff's husband told plaintiff to wait on the sidewalk while he retrieved their truck from the parking lot. Plaintiff's husband walked to the truck, drove it to the curb, put the vehicle in park, and then left the truck to assist his wife. Plaintiff, however, did not wait for her husband's assistance. She placed her hand on the vehicle door, opened the door, and took a small step toward the truck. Unfortunately, the ground was icy, and plaintiff slipped and fell, severely injuring her leg.

Plaintiff had first-party insurance policies with two insurance companies. First, plaintiff had a coordinated health insurance policy with an insurer who is not a party to this action. Second, plaintiff had an uncoordinated no-fault automobile insurance policy with defendant.

Plaintiff promptly notified defendant of the incident, seeking no-fault benefits. Michigan's no-fault automobile insurance act provides that "an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle...." M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). While injuries stemming from the use of a parked vehicle are generally excluded from coverage, M.C.L. § 500.3106(1); M.S.A. § 24.13106(1), coverage is nonetheless provided where "the injury was sustained by a person while occupying, entering into, alighting from the [parked] vehicle." M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c). Plaintiff alleged that the injury was covered under the no-fault policy issued by defendant because the injury had occurred while she was "entering into" a parked vehicle within the meaning of M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c).

Defendant denied plaintiff's claim. Defendant notified plaintiff that the mere presence of a motor vehicle did not constitute its "use" for purposes of the no-fault act. Because plaintiff's injuries resulted neither from a motor vehicle accident nor from the vehicle itself, defendant denied coverage.

The health insurer paid plaintiff's claim for medical expenses pursuant to the coordinated insurance contract in force at the time. Because the health insurer is not a party to this action, the record does not contain the details of the expenses that were covered. The evidence presented below suggested that this insurer paid all of plaintiff's medical expenses. ²

Plaintiff brought suit against defendant insurer, alleging breach of contract and seeking declaratory relief. Following cross motions for summary disposition, the circuit court granted summary disposition pursuant to MCR 2.116(C)(10) in favor of plaintiff, concluding that there was no genuine issue of material fact that plaintiff was in the process of entering the vehicle when she was injured. The court also stated plaintiff was entitled to recover from defendant despite the fact that plaintiff's expenses had already been paid by the health insurer, which is to say, the court condoned plaintiff's double recovery in the present case. The court also ordered defendant to pay plaintiff's attorney fees pursuant to a provision of the no-fault act allowing the award of attorney fees where an insurer unreasonably has refused to pay a claim. However, the court declined to award statutory or penalty interest to plaintiff.

Defendant now appeals, arguing that plaintiff was not "entering into" a vehicle at the time she was injured; that, accordingly, defendant's denial of the claim was not unreasonable and that the court's award of attorney fees was unwarranted; that, regardless of this Court's resolution of the "entering into" question, Supreme Court precedent precludes double recoveries in situations such as the present one; and, if the preceding arguments fail, that the amount of damages awarded was incorrect. Plaintiff cross appeals, contending that she was entitled to both statutory and penalty interest.

I

Defendant first contends that the circuit court erred in granting summary disposition in favor of plaintiff. The parties agree regarding all germane factual matters; the only question is whether the undisputed facts establish that plaintiff was "entering into" her vehicle at the time the incident underlying this litigation occurred. We find that the evidence supports the circuit court's conclusion that plaintiff was "entering into" her vehicle, and, accordingly, we affirm the court's grant of summary disposition with respect to the issue of liability.

The no-fault act provides that "an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle." M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). "Injuries that arise out of the use of a parked motor vehicle generally are not covered under the no-fault act. M.C.L. § 500.3106(1); M.S.A. § 24.13106(1)." Yost v. League General Ins. Co., 213 Mich.App. 183, 184, 539 N.W.2d 568 (1995). However, several exceptions exist to this "parked vehicle exclusion." Id. Significantly, one may recover for injuries despite the fact that the vehicle involved was parked where the injury is sustained while "entering into" the vehicle. M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c). As set forth in Gooden v. Transamerica Ins. Corp. of America, 166 Mich.App. 793, 797, 420 N.W.2d 877 (1988), "in order to recover for an injury in cases such as this, a claimant must show that an exception to the parked vehicle exclusion applies and the injury arose out of the use of a motor vehicle as a motor vehicle."

In the present case, the parties do not dispute that the vehicle was parked within the relatively broad definition afforded that term under the no-fault act. See, e.g., MacDonald v. Michigan Mutual Ins. Co., 155 Mich.App. 650, 655, 400 N.W.2d 305 (1986). Thus, because recovery under the no-fault act for injuries involving parked vehicles is, in general, precluded, M.C.L. § 500.3106(1); M.S.A. § 24.13106(1), plaintiff had the burden of demonstrating that the unrefuted evidence established both that one of the exceptions to the parked vehicle exclusion applied and that the injury arose out of the use of a motor vehicle as a motor vehicle. Gooden, supra. Our review of the record indicates that plaintiff successfully carried her burden.

First, the evidence establishes that plaintiff's injuries fall within the "entering into" a vehicle exception to the parked vehicle exclusion of the no-fault act. One of the exceptions to the parked vehicle exclusion allows recovery where an injury "was sustained by a person while ... entering into ... the vehicle." M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c). In Hunt v. Citizens Ins. Co., 183 Mich.App. 660, 663, 455 N.W.2d 384 (1990), the plaintiff had his car keys in one hand and his other hand on the car door when he was struck by a vehicle. This Court concluded that the plaintiff was entering into the car when the accident occurred. Here, plaintiff placed her hand on the door handle, opened the door, took a small step, and then fell. We discern no material distinction between the present case and Hunt, if anything, the present plaintiff had progressed further in "entering into" the vehicle than had the plaintiff in Hunt, a fact that strengthens plaintiff's position. Further, our review of the decisions of other jurisdictions support our conclusion that the present plaintiff was "entering into" her vehicle. See anno: What constitutes "entering" or "alighting from" vehicle within meaning of insurance policy, or statute mandating insurance coverage, 59 ALR4th 150, 166-167, § 6a. Therefore, we agree with the circuit court that no genuine dispute exists concerning whether plaintiff was "entering into" her vehicle at the time she sustained injury.

Second, we conclude that, as a matter of law, plaintiff's injury arose out of the use of a motor vehicle as a motor vehicle, a requirement sometimes referred to as the causative or causal nexus requirement. See, e.g., Ansara v. State Farm Ins. Co., 207 Mich.App. 320, 322, 523 N.W.2d 899 (1994). As stated by our Supreme Court in Thornton v. Allstate Ins. Co., 425 Mich. 643, 659, 391 N.W.2d 320 (1986): "The involvement of the car in the injury should be 'directly related to its character as a motor vehicle' [to satisfy the causal nexus requirement]. Miller v. Auto-Owners Ins. Co., [411 Mich. 633, 640, 309 N.W.2d 544 (1981) ]." As explained more thoroughly in Miller, pp. 639-640, 309 N.W.2d 544 (emphasis altered):

Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle...