Winter v. Automobile Club of Michigan

• Decision Date: 26 September 1989
• Docket Number: Docket No. 81973
• Citation: Winter v. Automobile Club of Michigan, 446 N.W.2d 132, 433 Mich. 446 (Mich. 1989)
• Parties: Johannes WINTER, Plaintiff-Appellee, v. AUTOMOBILE CLUB OF MICHIGAN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 132

446 N.W.2d 132

433 Mich. 446

Johannes WINTER, Plaintiff-Appellee, v. AUTOMOBILE CLUB OF MICHIGAN, Defendant-Appellant.

Docket No. 81973.

Supreme Court of Michigan.

Argued Dec. 7, 1988.

Decided Sept. 26, 1989.

[433 Mich. 447] John C. Carlisle, Grosse Pointe Farms, for plaintiff-appellee.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Martin & Schoolmaster by Edwin F. Dyer, II, Detroit, for defendant-appellant; [433 Mich. 448] MacArthur, Cheatham & Acker, P.C. by James G. Gross, of counsel.

OPINION

GRIFFIN, Justice.

In this insurance case, the carrier appeals from a determination that the no-fault act ¹ covers an accidental injury to plaintiff which occurred when a slab of sidewalk, raised by a tow truck, slipped off its hook and fell on plaintiff's hand. Because the vehicle was "parked" within the meaning of § 3106(1) ² at the time of the accident, and none of the § 3106(1) exceptions is applicable, plaintiff is not entitled to no-fault benefits, and we therefore reverse.

I

The essential facts are not in dispute. Plaintiff, a resident of Grosse Pointe Farms, was told by the city that the broken and uneven sidewalk in front of his house had to be leveled or replaced. Plaintiff decided to do the work himself, and he borrowed a tow truck and an operator from a friend who owned a neighborhood gas station.

Plaintiff decided that each of three large concrete slabs should be raised in order that the soil underneath could be leveled. The tow truck was backed over the curb, and a hook at the end of the winch cable was positioned over each slab as it was to be lifted. After a slab had been raised two or three feet, wood bracing was put in place to hold the slab, and plaintiff then proceeded to cut out roots and to remove or add soil where needed to level the ground. At one point while this cutting and filling took place, the operator drove the tow truck back to the gas station. Upon its return, the truck was used to relift each slab while the bracing was removed; the slab then was lowered to the ground. When this procedure was completed, plaintiff concluded that the slabs still were not level, and he decided that the process should be repeated.

In each instance when it was used to assist plaintiff, the truck was positioned perpendicular to the street, with its back wheels almost at the sidewalk. Although the wheels were not blocked, the operator set the hand brake and the front wheels were against the curb so as to immobilize them. With the truck in neutral gear, the operator raised or lowered the hook by operating controls located outside and at the back of the truck.

While one of the slabs was being raised for the third time, plaintiff, without inserting wood bracing, put his hand underneath the slab in order to level the last high spot. At that point a piece of the concrete broke off at the hook, and the slab fell, resulting in serious injury to plaintiff's hand.

After insurance coverage was denied, plaintiff filed this action against defendant Automobile Club of Michigan, ³ insurer of his personal automobile, seeking PIP benefits under the no-fault act. Defendant moved for summary disposition on the ground that plaintiff's injuries did not "arise[ ] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" within the meaning of § 3105(1) of the act. Defendant also argued that even if the truck was being used as a motor vehicle, plaintiff's recovery was barred under § 3106(1) because the truck was "parked" when the accident occurred and none of the § 3106(1) exceptions was applicable.

Relying on Johnston v. Hartford Ins. Co., 131 Mich.App. 349, 346 N.W.2d 549 (1984), lv. den. 419 Mich. 893 (1984), the trial court granted defendant's motion for summary disposition, holding that when the accident occurred the tow truck was being used, not as a motor vehicle, but as a mobile winch or crane. Thereafter, while the instant case was pending before the Court of Appeals, we decided Bialochowski v. Cross Concrete Pumping Co., 428 Mich. 219, 407 N.W.2d 355 (1987). Concluding that Bialochowski had "implicitly overruled" Johnston, the Court of Appeals reversed, holding that the tow truck was being used as a motor vehicle. The appeals panel also determined that the truck was parked; however, it read this Court's opinion in Miller v. Auto-Owners Ins Co, 411 Mich. 633, 309 N.W.2d 544 (1981), as authority to conclude that § 3106(1) does not exclude coverage on these facts. The panel went further and reasoned that even if Miller did not apply, plaintiff would be entitled to recover under a broad interpretation of the exception set forth in § 3106(1)(b). ⁴ We granted leave to appeal. 430 Mich. 891 (1988).

II

While conceding that the tow truck was "a motor vehicle," defendant argues that the truck was not being used "as a motor vehicle" within the meaning of § 3105(1) of the no-fault act. That provision states:

"Under personal protection insurance 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, subject to the provisions of this chapter." (Emphasis added.)

Defendant contends that the tow truck was being used as a stationary crane. Defendant further argues that in order to satisfy the "as a motor vehicle" requirement of § 3105(1) something more must be shown than that the injury arose out of the "use of a motor vehicle." Defendant maintains that the Legislature intended to include within the ambit of no-fault coverage only those accidents which result from the vehicular involvement of a motor vehicle in an accident. Before responding to these arguments, we believe a brief review of several cases is in order.

A

In Miller, the plaintiff was injured when his automobile fell on him while he attempted to replace a pair of shock absorbers. The Miller Court focused upon "tension" it found to exist between § 3105(1) which covers injuries incurred in the "maintenance" of a motor vehicle, and § 3106 ⁵ which at the time appeared to exclude coverage of injuries incurred in the maintenance of a "parked" motor vehicle. Observing that virtually all maintenance is performed on a vehicle while it is parked, the Miller Court undertook the task of resolving this perceived conflict between the two provisions of the act. In an opinion by Justice Levin, the Court examined policies which underlie each provision:

"The policy embodied in the requirement of § 3105(1) that coverage extend to 'injury arising out of the ... maintenance ... of a motor vehicle as a motor vehicle' thus is to provide compensation for injuries, such as Miller's, incurred in the course of repairing a vehicle.

"The policy underlying the parking exclusion is not so obvious but, once discerned, is comparably definite. Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved. There is nothing about a parked vehicle as a motor vehicle that would bear on the accident.

* * * * * *

"Each of the exceptions to the parking exclusion thus describes an instance where, although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle. The underlying policy of the parking exclusion is that, except in three general types of situations, a parked car is not involved in an accident as a motor vehicle. It is therefore inappropriate to compensate injuries arising from its non-vehicular involvement in an accident within a system designed to compensate injuries involving motor vehicles as motor vehicles.

"The policies underlying § 3105(1) and § 3106 thus are complementary rather than conflicting. Nothing of the policy behind the parking exclusion--to exclude injuries not resulting from the involvement of a vehicle as a motor vehicle--conflicts with the policy of compensating injuries incurred in the course of maintaining (repairing) a motor vehicle." Miller, supra, 411 Mich. pp. 639-641, 309 N.W.2d 544. (Emphasis in original.)

In Bialochowski, this Court considered the "as a motor vehicle" requirement in connection with the use of a dual-purpose vehicle. In that case, the plaintiff was injured when the boom of a cement truck collapsed on him. The injured plaintiff claimed that the truck was being used "as a motor vehicle" when the accident happened; however, the insurer argued that it was being used "as a piece of construction machinery, a cement pump, which poured concrete at elevated levels." Bialochowski, supra, 428 Mich. p. 226, 407 N.W.2d 355. In determining that the "as a motor vehicle" requirement of § 3105(1) had been met, the Bialochowski Court focused upon the fact that the cement truck was a motor vehicle and that it was being used for its intended purpose:

"Motor vehicles are designed and used for many different purposes. The truck involved in this case is a cement truck capable of pouring cement at elevated levels. Certainly one of the intended uses of this motor vehicle (a motor vehicle under the no-fault act) is to pump cement. The accident occurred while this vehicle was being used for its intended purpose. We hold that the phrase 'use of a motor vehicle as a motor vehicle' includes this use." Id., 428 Mich. pp. 228-229, 407 N.W.2d 355.

The Bialochowski Court distinguished Johnston v. Hartford Ins. Co., supra, wherein a crane operator had been injured when he slipped while entering the crane's cab which contained the driving controls. At the time of the injury, the crane could not be driven or moved. It had been immobilized by the placement of outriggers and counterweights, an operation that took three days to accomplish. The Johnston panel determined that although the crane was a motor vehicle which could travel on the highway, the crane...