Shellenberger v. Insurance Co. of North America

• Decision Date: 10 April 1990
• Docket Number: No. 109112,109112
• Citation: 182 Mich.App. 601,452 N.W.2d 892
• Parties: Larry SHELLENBERGER, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 892

452 N.W.2d 892

182 Mich.App. 601

Larry SHELLENBERGER, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.

No. 109112.

Court of Appeals of Michigan.

Submitted May 11, 1989.

Decided March 19, 1990.

Released for Publication April 10, 1990.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Douglas A. Merrow, Kalamazoo, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge by Susan J. Bradley, Grand Rapids, for defendant-appellee.

Before HOLBROOK, P.J., and SAWYER and NEFF, JJ.

HOLBROOK, Presiding Judge.

Plaintiff appeals from an order of summary disposition dismissing his claim for personal protection insurance benefits on a no-fault policy issued by defendant to plaintiff's employer. We affirm.

The facts are essentially undisputed. Plaintiff, a truck driver, started the truck engine in preparation for a delivery. As he reached to move a briefcase within the interior of the truck, he ruptured a lumbar disc, thereby injuring his back. His claim for wage loss benefits resulted from that injury.

Although the circuit court specified that summary disposition was grounded in MCR 2.116(C)(8), it is clear that it relied on facts extraneous to pleadings in deciding the motion. Therefore, we will review the summary disposition as if it were granted pursuant to MCR 2.116(C)(10). Under that subrule, summary disposition should be granted if it is determined that, upon giving the nonmoving party the benefit of every reasonable doubt, it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Metropolitan Life Ins. Co. v. Reist, 167 Mich.App. 112, 118, 421 N.W.2d 592 (1988), lv. den. 431 Mich. 877 (1988).

The issue to be decided in this appeal is whether plaintiff's claim to personal protection insurance benefits meets the threshold requirement of an "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle," which is set forth in M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). This statutory standard speaks to the requisite causal connection between the motor vehicle and the ensuing injury. This standard was explained in Thornton v. Allstate Ins. Co., 425 Mich. 643, 659-660, 391 N.W.2d 320 (1986):

In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited no-fault PIP benefits to injuries arising out of the "use of a motor vehicle as a motor vehicle." In our view, this language shows that the Legislature was aware of the causation dispute and chose to provide coverage only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for." The involvement of the car in the injury should be "directly related to its character as a motor vehicle." Miller v. Auto-Owners [Ins. Co., 411 Mich. 633, 640-641, 309 N.W.2d 544 (1981) ]. Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle. Without a relation that is more than "but for," incidental, or fortuitous, there can be no recovery of PIP benefits.

Applying this standard of causation, the Court in Thornton held that gunshot-inflicted injuries sustained inside a taxicab by its driver in the course of an armed robbery perpetrated by a passenger did not give rise to the insurer's liability for benefits.

Under the facts demonstrated in this case, we find ourselves in agreement with the circuit court. It was a mere fortuity that plaintiff's injury occurred as he was sitting in the truck. The particular setting of the truck suggests nothing specific to its operation or use as a motor vehicle that played a part in the injury.

In an effort to avoid the conclusion that the truck played no greater role than providing a site for the accident to occur, plaintiff points out that the briefcase contained documents pertaining to the truck's shipment and further suggests that the configuration of the truck's interior occasioned his original placement of the briefcase and the subsequent need to move the briefcase. Plaintiff cites Perryman v. Citizens Ins. Co. of America, 156 Mich.App. 359, 401 N.W.2d 367 (1986), lv. den. 428 Mich. 874, 402 N.W.2d 467 (1987), where another panel of this Court reversed summary judgment for the insurer and held that the cramped configuration and lack of lighting in the interior of a van may have been a contributing cause to the accidental discharge of a gun during its unloading from the van. Thornton was deemed "inapposite" because of the involvement of physical characteristics of the van in the accident. Perryman, supra, at p. 366, 401 N.W.2d 367.

We are not persuaded that the test and underlying rationale of Thornton should be so readily discarded. In the instant case, it may have been necessary for plaintiff to carry the briefcase in the fulfillment of his job duties as a truck driver, but it does not follow that those duties were congruent with the operation or use of the truck as a motor vehicle. Similarly, moving the briefcase by reason of the configuration of the interior of the truck cannot be said to result from some facet particular to the normal functioning of a motor vehicle. The need to make similar movements in order to reach for a briefcase routinely occurs in offices, airports, homes, conference rooms, courtrooms, restaurants, and countless other settings where no-fault insurance does not attach. The fact that plaintiff's movement in reaching for the briefcase occurred in the interior of the truck does not transform the incident into a motor vehicle accident for no-fault purposes. See also Krause v. Citizens Ins. Co. of America, 156 Mich.App. 438, 440, 402 N.W.2d 37 (1986) (accidental discharge of gun placed on top of car; held, summary disposition dismissing claim for PIP benefits affirmed); Gooden v. Transamerica Ins. Corp. of America, 166 Mich.App. 793, 805-806, 420 N.W.2d 877 (1988), lv. den. 431 Mich. 862 (1988) (plaintiff fell from bed of truck used to position ladder against a house; held, judgment of no cause of action dismissing claim for PIP benefits affirmed). See also Michigan N.R. Co. v. Auto-Owners Ins. Co., 176 Mich.App. 706, 440 N.W.2d 108 (1989).

Affirmed.

SAWYER, J., concurs.

NEFF, Judge (dissenting).

I dissent from the majority opinion and would find that on the facts of this case plaintiff is entitled to first-party, no-fault benefits.

I

There is no dispute that plaintiff's injury occurred as he moved his briefcase inside the cab of his truck. The briefcase contained the paperwork required and necessary for interstate truck shipments.

Defendant first challenged plaintiff's entitlement to first-party benefits on the ground that plaintiff was in the process of loading or unloading the truck when he was injured and therefore was precluded from recovery. In fact, in a brief filed in support of defendant's motion for summary disposition based on the loading or unloading issue, defense counsel argued:

The only issue which plaintiff may contest would be whether plaintiff's injuries, which in the course of his employment, occurred while plaintiff was "loading" or "unloading" his employer's parked vehicle within the meaning of [M.C.L. § 500.3106(2); M.S.A. § 24.13106(2).]

The trial court granted the motion, finding that plaintiff's injury had occurred during activities which were "preparatory to unloading." This Court reversed, noting that "Defendant claims, ... that these documents [in the briefcase] were required and, thus, were an integral part of the freight." The Court found that at the time of the injury plaintiff was "acting as a truck driver" and concluded that the loading or unloading provision did not apply. Shellenberger v. Ins Co of North America, unpublished opinion per curiam of the Court of Appeals, decided October 8, 1987 (Docket No. 94198).

The case was remanded to the trial court and defendant brought another motion for summary disposition, this time claiming that the injury did not occur as a result of use of a motor vehicle as a motor vehicle. Again defendant's motion was granted and this appeal resulted.

II

The injury occurred while plaintiff was an occupant of a parked vehicle. Under those circumstances, recovery under the no-fault act is generally precluded. Miller v. Auto-Owners Ins. Co., 411 Mich. 633, 639, 309 N.W.2d 544 (1981); Wills v. State Farm Ins. Co.'s, 178 Mich.App. 263, 266, 443 N.W.2d 396 (1989). There is a statutory exception to this rule:

(1) 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:

* * * * * * (c) Except as provided in subsection (2), the injury was sustained by a person while occupying, entering into, or alighting from the vehicle. [M.C.L. § 500.3106; M.S.A. § 24.13106.]

In order to fit within the exception, a claimant must show that his or her injuries arose out of the use of the motor vehicle "as a motor vehicle." Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 315, 282 N.W.2d 301 (1979), lv. den. 407 Mich. 895 (1979); Denning v. Farm Bureau Ins. Group, 130 Mich.App. 777, 344 N.W.2d 368 (1983), lv. den. 419 Mich. 877 (1984); Gooden v. Transamerica Ins. Corp. of America, 166 Mich.App. 793, 420 N.W.2d 877 (1988), lv. den. 431 Mich. 862 (1988). The test for determining whether an injury occurring in a parked vehicle arises out of the use of the vehicle "as a motor vehicle" is clearly set forth in the seminal case of Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975). There, this Court held that the injury must be foreseeably identifiable with the normal...