King v. Aetna Casualty & Surety Co. , 118 Mich. App. 648 ( 1982 )

118 Mich. App. 648 (1982) 325 N.W.2d 528

KING
v.
AETNA CASUALTY & SURETY COMPANY

Docket No. 56634.

Michigan Court of Appeals.

Decided August 23, 1982.

Michael J. Theile, for plaintiff.

Neal & Lengauer (by W.L. Meuleman, III), for defendant.

Before: R.M. MAHER, P.J., and BRONSON and R.J. SNOW,^[*] JJ.

R.M. MAHER, P.J.

Defendant-appellant Aetna Casualty and Surety Company appeals as of right an order by the trial court denying defendant's motion for summary judgment. Plaintiff-appellee James F. King, Jr., cross-appeals the trial court's refusal to award interest and attorney fees and the trial court's ruling permitting defendant to present an affirmative defense.

Once again this Court must attempt to delineate the scope of the Michigan no-fault act.^[1] As usual, the facts are not in dispute. On December 28, 1978, plaintiff drove his car to a Kroger store in Mt. Morris, Michigan, in order to do some shopping. Plaintiff parked his car in the parking lot, locked the doors, and proceeded to the store where he shopped for about ten minutes. While returning to his car, plaintiff slipped on some ice and fell, sustaining physical injury to his knee and leg. Plaintiff, while holding a bag of groceries in his left arm, had removed his car keys from his pocket and was reaching to unlock the car door when he fell. Plaintiff's hand was about two inches away from the car at the time of the fall, but he could not remember whether his key ever touched the car.

Plaintiff sued defendant in Genesee County Circuit Court, seeking no-fault benefits for injuries sustained in the accident. Prior to trial, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(3), contending that plaintiff's injuries were not compensable under the no-fault act. The trial court denied the motion, and a bifurcated trial was held. A jury found defendant liable for plaintiff's injuries and the trial court assessed total damages at $27,879. Defendant appeals, and plaintiff cross-appeals.

In order to recover no-fault benefits for injuries sustained in connection with a parked vehicle, a claimant must suffer injuries falling within one of the categories enumerated in § 3106 of the no-fault act, which provides:

"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 contends that his injuries were sustained while he was "entering into" his vehicle. We must disagree. The undisputed facts show that plaintiff was not entering his vehicle when he slipped and fell, but was merely preparing to enter it. Because none of the three subsections of the parked vehicle exclusion (§ 3106) is applicable, plaintiff's injuries are not compensable under the no-fault act.

We also find that plaintiff's claim is deficient in another respect. 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. MCL 500.3105(1); MSA 24.13105(1), Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975), lv den 395 Mich. 787 (1975), Shinabarger v Citizens Mutual Ins Co, 90 Mich. App. 307; 282 NW2d 301 (1979), Dowdy v Motorland Ins Co, 97 Mich. App. 242; 293 NW2d 782 (1980), Block v Citizens Ins Co of America, 111 Mich. App. 106; 314 NW2d 536 (1981), Krueger v Lumbermen's Mutual Casualty, 112 Mich. App. 511; 316 NW2d 474 (1982). According to Kangas, supra,

"[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 relies on McPherson v Auto-Owners Ins Co, 90 Mich. App. 215; 282 NW2d 289 (1979), lv den 407 Mich. 908 (1979), in support of the proposition that no such "causal connection" need be shown. We once again take the opportunity to respectfully wish McPherson a speedy burial.^[2]

We have no difficulty concluding that plaintiff has not shown a causal connection between the use, etc., of his parked vehicle and his injuries. Slipping on ice is simply not foreseeably identifiable with the act of entering a vehicle.^[3] It was the ice on the parking lot that caused plaintiff's injuries; the involvement of his parked vehicle was merely incidental. Consequently, even if we were to find that plaintiff was "entering into" his vehicle when the accident occurred, we would nevertheless conclude that plaintiff was not entitled to no-fault benefits.

We hold that the trial court erred in denying defendant's motion for summary judgment.

In light of our disposition of the foregoing issue, we need not address the other issue raised by defendant, or the issues raised by plaintiff in his cross-appeal.

Reversed. Defendant may tax costs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 500.3101 et seq.; MSA 24.13101 et seq.

[2] See Dowdy, supra, Block, supra, Krueger, supra.

[3] We find Krueger, supra, factually distinguishable from the instant case. In Krueger, the plaintiff was injured by stepping into a hole in the ground while alighting from his vehicle, and the Court found a causal connection between the plaintiff's act of alighting from the vehicle and his injuries. In Krueger, unlike the case at bar, both the act of alighting from the vehicle and the common road hazard were causal factors that substantially contributed to the accident.