Griffin v. Lumbermens Mutual Casualty Co. , 128 Mich. App. 624 ( 1983 )

128 Mich. App. 624 (1983) 341 N.W.2d 163

GRIFFIN
v.
LUMBERMENS MUTUAL CASUALTY COMPANY

Docket No. 62816.

Michigan Court of Appeals.

Decided September 13, 1983.

Marshall Lasser, P.C. (by Marshall Lasser), for plaintiff.

Barbier, Goulet & Petersmarck, P.C. (by John L. Salter), for defendant.

Before: T.M. BURNS, P.J., and R.M. MAHER and HOOD, JJ.

R.M. MAHER, J.

Defendant appeals from the trial court's order denying the defendant's motion for summary judgment pursuant to GCR 1963, 117.2(3).

The facts are undisputed. On March 13, 1979, the plaintiff drove his employer's truck-trailer to the Jackson plant of the Detroit Rendering Company and backed his vehicle up to the loading dock. He got out of the truck and climbed half-way up the flight of stairs onto the loading dock to see if the truck was correctly positioned. When he was satisfied that the trailer was properly positioned, the plaintiff turned to go back to the truck. As he turned, the plaintiff slipped and fell, sustaining severe injuries.

Plaintiff gave defendant written notice of his claim for no-fault wage benefits, as required by MCL 500.3145; MSA 24.13145. Defendant refused to pay plaintiff the claimed no-fault benefits, whereupon plaintiff brought this lawsuit.

The question on appeal is whether, on the undisputed facts, the plaintiff is entitled to no-fault benefits as a matter of law.

In order to recover no-fault benefits for injuries sustained where only a parked vehicle is involved, the plaintiff must pass a two-part test. Krueger v Lumbermen's Mutual Casualty Co, 112 Mich. App. 511; 316 NW2d 474 (1982).^[1] First, the plaintiff must demonstrate that his injury falls within one of the categories enumerated in § 3106 of the no-fault act. At the time of the accident, that section provided:^[2]

"Sec. 3106. 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:

"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.

"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.

"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle." MCL 500.3106; MSA 24.13106.

Plaintiff argues that subsection (c) applies insofar as he was injured while "occupying" his truck. I disagree.

Plaintiff relies on McPherson v Auto-Owners Ins Co, 90 Mich. App. 215; 282 NW2d 289 (1979), lv den 407 Mich. 908 (1979), in which this Court construed the term "occupying". In McPherson, the plaintiff had temporarily parked her car and, while in the process of going around it to remove her grandson from the back seat, she slipped and fell on an obstruction on the highway. In ruling that the plaintiff was injured while occupying her vehicle, the Court applied the following test:

"[T]he appropriate test [is] one of continuity of action. Under this test the appropriate inquiry is to determine the intent of the injured person with regard to the automobile. Even if the person is temporarily out of or away from the auto, coverage will be found if the person intends a continued use of the car." 90 Mich. App. 219.

Plaintiff argues that, under McPherson, he was occupying his truck when he was injured since, at that time, the plaintiff was in the process of returning to his vehicle. I am not inclined, however, to follow McPherson.

McPherson based its ruling on the Supreme Court's decision in Nickerson v Citizens Mutual Ins Co, 393 Mich. 324; 224 NW2d 896 (1975). In Nickerson, the plaintiff was a passenger in the insured vehicle. The car stalled and plaintiff helped to push it to the side of the road. A passing motorist was then flagged down. The plaintiff, who had returned to the vehicle, exited from the vehicle once again and, while walking in front of the stalled vehicle, was injured when a third vehicle struck the stalled car, pushing it into plaintiff. The Court held that, under the automobile insurance policy, the plaintiff had been occupying the vehicle at the time of the accident.

In Kalin v Detroit Automobile Inter-Ins Exchange, 112 Mich. App. 497; 316 NW2d 467 (1982), this Court seriously questioned the validity of applying Nickerson to construe the no-fault act. See, also, Davis v Auto-Owners Ins Co, 116 Mich. App. 402; 323 NW2d 418 (1982). First, the Court noted that Nickerson construed an automobile insurance policy, not a statute. An insurance policy is to be construed against the insurer whereas statutory language is to be given its ordinary meaning. Second, the Court pointed out that the policy involved in Nickerson defined "occupying"; the no-fault act, by contrast, does not define this term.

While providing some guidance, Nickerson does not command that this Court follow its broad construction of "occupying" when construing the no-fault act. Inasmuch as this Court in McPherson merely read Nickerson into the no-fault act, I decline to adopt its interpretation of "occupying" under § 3106.

In construing "occupying" as used in § 3106 I am guided by this Court's construction of the term "occupant" as it appears in §§ 3114^[3] and 3115^[4] of the no-fault act. It is a "settled principle that doubtful or ambiguous provisions of a statute are construed not in isolation but with reference to and in the context of related provisions". Guitar v Bieniek, 402 Mich. 152, 158; 262 NW2d 9 (1978). The cases which have construed "occupant"^[5] tend to require either physical contact with the vehicle at the time of the injury or occupancy of the vehicle immediately prior to the accident. See Kalin, supra, pp 506-507. I believe that these factors are also relevant in construing "occupying" as used in § 3106.

In the present case, the plaintiff was not in physical contact with the truck-trailer when he was injured. Nor had he occupied the cab of the vehicle immediately prior to the accident. Thus, the plaintiff did not sustain an injury while "occupying" a vehicle as that term is used in § 3106.

Nor does plaintiff's injury satisfy the second condition for recovery under § 3106. Plaintiff's injury did not "arise out of" the ownership, operation, maintenance, or use of his vehicle as a motor vehicle. The requisite causal connection was described by this Court in Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975), lv den 395 Mich. 787 (1975):

"[W]hile the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."

Plaintiff's injury was not "foreseeably identifiable" with the ownership, etc., of his vehicle as a motor vehicle. Cf. Block v Citizens Ins Co of America, 111 Mich. App. 106; 314 NW2d 536 (1981). See, also, Dowdy v Motorland Ins Co, 97 Mich. App. 242; 293 NW2d 782 (1980).

Under the undisputed facts, the plaintiff may not recover no-fault benefits as a matter of law. The trial court, therefore, erred in denying defendant's motion for summary judgment.

Reversed. Defendant may tax costs.

HOOD, J. (concurring).

I concur in reversal because it is clear that plaintiff's slip and fall and injury was "without causal connection with the ownership, maintenance and use of" the truck. Block v Citizens Ins Co of America, supra.

T.M. BURNS, P.J. (dissenting).

I disagree with Judge MAHER in that he declines to follow McPherson v Auto-Owners Ins Co, 90 Mich. App. 215; 282 NW2d 289 (1979), lv den 407 Mich. 908 (1979), since it is based on the supreme Court's holding in Nickerson v Citizens Mutual Ins Co, 393 Mich. 324; 224 NW2d 896 (1975). In Nickerson, the Court found that physical contact with a vehicle was not necessary for a finding that a person was "occupying" the vehicle according to the terms of an insurance contract. 393 Mich. 331. While the Court, in part, based its holding on the rules of interpretation of insurance contracts, the Court stated:

"[P]erhaps most significantly, as Judge McGREGOR and plaintiff point out, it guards against recovery based entirely upon `fortuitous circumstance'." 393 Mich. 331.

Recent authority has also applied Nickerson to determine whether injuries arose out of the use of a motor vehicle as defined in the no-fault act. Ohio Casualty Ins Group v Robinson, 127 Mich. App. 138; 338 NW2d 898 (1983).

In the instant case, the claimant momentarily stepped out of the cab of the truck and climbed a few steps onto the loading dock to see if the trailer was aligned properly. Upon determining that it was, he was proceeding to the rear of the truck to unhitch the trailer when he was injured.

Plaintiff was not standing on the steps upon which he slipped and fell because of a mere coincidence. To properly use the truck it was necessary for him to climb the stairs. This created the risk which caused plaintiff's injuries.

The vehicle in this case provided not only the occasion of the injury, McPherson, supra, p 220, but was one of the causes of the injury. The fact that there was an independent cause does not bar plaintiff's cause of action. As stated in Shinabarger v Citizens Mutual Ins Co, 90 Mich. App. 307; 282 NW2d 301 (1979):

"Where use of the vehicle is one of the causes of the injury, a sufficient causal connection is established even though there exists an independent cause * * *.

"The relationship between use of the vehicle and the injury need not approach proximate cause * * *." Shinabarger, p 313.

See also BASF Wyandotte Corp v Transport Ins Corp, 523 F Supp 515, 517 (ED Mich, 1981). An independent cause may be grease on the floor. Ohio Casualty, supra.

The majority, however, denies recovery because the risk of plaintiff's injuries was not foreseeably identifiable with plaintiff's use of a tractor-trailer rig. The majority's reliance on Block v Citizens Ins Co of America, 111 Mich. App. 106; 314 NW2d 536 (1981), is misguided. In that case, the plaintiff sustained disabling back injuries when she slipped and fell on ice as she returned to her employer's van with empty cartons which were used to make deliveries. She fell before she reached the van but when she fell she came to rest under the vehicle. This Court sustained the trial court's grant of summary judgment. The Court characterized the plaintiff's injury as a slip and fall without causal connection with the ownership, maintenance, and use of the van.

There is more continuity in plaintiff's actions in the instant case than those of the plaintiff in Block. Whereas the plaintiff in Block was merely returning to her truck with cartons after making a delivery, the plaintiff in this cause was returning to his truck after completing his visual observation of the positioning of the truck's trailer. His visual observation was an integral part of the parking process of the truck. Since plaintiff intended a continued use of his truck and had only momentarily alighted from it to perform duties necessary to the proper use of the truck, I would affirm the trial court's decision.

NOTES

[1] But, see McPherson v Auto-Owners Ins Co, 90 Mich. App. 215; 282 NW2d 289 (1979), lv den 407 Mich. 908 (1979).

[2] In 1981, well after plaintiff's accident, the statute was amended to read in pertinent part:

"Sec. 3106. (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:

"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.

"(b) Except as provided in subsection (2), the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.

"(c) Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle."

[3] MCL 500.3114; MSA 24.13114. It provides in pertinent part:

"(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.

"(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

"(a) The insurer of the owner or registrant of the vehicle occupied.

"(b) The insurer of the operator of the vehicle occupied."

[4] MCL 500.3115; MSA 24.13115. The statute provides in pertinent part:

"(1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

"(a) Insurers of owners or registrants of motor vehicles involved in the accident.

"(b) Insurers of operators of motor vehicles involved in the accident.

[5] See Ottenwess v Hawkeye Security Ins Co, 84 Mich. App. 292; 269 NW2d 570 (1978), rev'd on other grounds 408 Mich. 164 (1980); Hathcox v Liberty Mutual Ins Co, 90 Mich. App. 511; 282 NW2d 374 (1979); Kalin v Detroit Automobile Inter-Ins Exchange, 112 Mich. App. 497; 316 NW2d 467 (1982); Davis v Auto-Owners Ins Co, 116 Mich. App. 402; 323 NW2d 418 (1982).