Truby v. Farm Bureau General Ins. of Michigan, Docket No. 96740
| Decision Date | 25 April 1989 |
| Docket Number | Docket No. 96740 |
| Parties | Simon TRUBY, Plaintiff-Appellee, v. FARM BUREAU GENERAL INSURANCE OF MICHIGAN, Defendant, and Ryder Truck Rental, Inc., a Florida corporation, jointly and severally, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C., Detroit, by Gregory M. Janks, for plaintiff-appellee.
Michael L. Brochert and Richard L. Small, Birmingham, for Ryder Truck Rental, Inc.
Before GILLIS, P.J., and MURPHY and GAGE, * JJ.
Defendant Ryder Truck Rental, Inc., appeals from an order of the Wayne Circuit Court granting summary disposition to plaintiff Simon Truby on the issue of liability. Each party had moved for summary disposition under MCR 2.116(C)(10). There were no material issues of fact. The issue of law was whether plaintiff could collect no-fault personal protection insurance benefits for a work-related injury involving two or more motor vehicles.
Review under MCR 2.116(C)(10) is based on the affidavits, pleadings, depositions, admissions and documentary evidence filed in the action or submitted by the parties. MCR 2.116(G)(5). 1 A motion under this subrule usually tests the factual support for the claim. Linebaugh v. Berdish, 144 Mich.App. 750, 753, 376 N.W.2d 400 (1985). Where there is no genuine issue of material fact the court may properly grant summary disposition as a matter of law. MCR 2.116(I)(1).
The undisputed facts are that on January 7, 1986, plaintiff was working at the General Motors Truck and Bus plant in Janesville, Wisconsin, while employed by Commercial Carriers, Inc. His duties included loading pickup trucks onto a two-tier trailer designed to carry five pickup trucks. He did this by driving each pickup truck up a portable ramp and onto the trailer. He loaded the fifth pickup onto the top tier of the trailer and set the parking brake. The next step in the loading process was to tie down the pickup. As he began to exit from the pickup to accomplish this task, it began to roll, knocking the plaintiff to the ground. Plaintiff was half in and half out of the truck when the accident occurred. It is also undisputed that the only assembly remaining to be done to these pickup trucks was the attachment of a rear bed or box suitable for the purposes of the purchaser of the truck.
An insurer is liable to pay personal protection insurance benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" subject to the provisions of Chapter 31 of the Insurance Code, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101et seq. M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). "Accidental bodily injury" is specially defined. At the time plaintiff's injury occurred, M.C.L. § 500.3106; M.S.A. § 24.13106 provided in part:
As stated in Krueger v. Lumbermen's Mutual Casualty Co., 112 Mich.App. 511, 516, 316 N.W.2d 474 (1982):
"In order to recover no-fault benefits for injuries sustained in connection with a parked vehicle, a claimant must establish both the applicability of one of the 3106 categories and, in addition, that the injuries arose out of the ownership, operation maintenance or use of the parked vehicle."
Plaintiff's primary theory of liability was that under M.C.L. § 500.3106(2); M.S.A. § 24.13106(2) the undisputed facts showed that the accident arose out of the use of a parked vehicle, i.e., the carrier, that while in the course of his employment plaintiff was loading a vehicle, i.e., the carrier, and that the injury also arose from the use of another vehicle, i.e., the last pickup loaded by the plaintiff. The trial court focused almost exclusively on the element of whether the pickup truck was "another vehicle" under M.C.L. § 500.3106(2); M.S.A. § 24.13106(2). This opinion will consider each element in the above order.
First, there is no dispute that the carrier was parked at the time of the injury and that plaintiff was in the course of his employment. Second, regardless of whether the carrier was attached to a cab or freestanding, the carrier was a vehicle. M.C.L. § 500.3101(2)(c); M.S.A. § 24.13101(2)(c); Parks v. DAIIE, 426 Mich. 191, 198, 393 N.W.2d 833 (1986); Kelly v. Inter-City Truck Lines, Inc., 121 Mich.App. 208, 211, 328 N.W.2d 406 (1982); Jones v. Tronex Chemical Corp., 129 Mich.App. 188, 195, 341 N.W.2d 469 (1983). Because plaintiff had not completed tying down the last pickup truck, plaintiff was in the process of loading the vehicle. See, e.g., Gibbs v. United Parcel Service, 155 Mich.App. 300, 302-303, 400 N.W.2d 313 (1986); Bell v. F.J. Boutell Driveaway Co., 141 Mich.App. 802, 808-809, 369 N.W.2d 231 (1985). Because plaintiff was still in the process of loading the carrier and was struck by a pickup rolling off of the carrier, it cannot be argued that the injury did not arise from the use of the carrier.
Third, there is no dispute that the pickup was completely assembled except that it lacked a rear bed or box. Unlike the motor home chassis in Logan v. Commercial Carriers, Inc., 152 Mich.App. 701, 704, 394 N.W.2d 470 (1986), the pickup was not merely a frame, motor and steering wheel, but had a cab, hood, windshield and finished seat. There were no facts presented which would suggest that the pickup truck was not designed for operation on a highway. Therefore, the pickup should be regarded as a motor vehicle under M.C.L. § 500.3101(2)(c); M.S.A. § 24.13101(2)(c) and as another vehicle under M.C.L. § 500.3106(2); M.S.A. § 24.13106(2).
Finally, in order to conclude that the injury "arose from" the use of the pickup, there must have been undisputed facts establishing a causal connection between the use of the motor vehicle and the injury sustained. This causal connection must be more than incidental, fortuitous, or but for. "The injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle." Krueger, supra., 112 Mich.App. p. 516, 316 N.W.2d 474, quoting Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich 787 (1975). The Krueger Court found a sufficient causal connection where the claimant stepped into a pothole while alighting from a motor vehicle. It is equally foreseeable that a vehicle parked on a steep incline might roll backward causing injury to a person...
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