Winters v. National Indemnity Co. , 120 Mich. App. 156 ( 1982 )

120 Mich. App. 156 (1982) 327 N.W.2d 423

WINTERS
v.
NATIONAL INDEMNITY COMPANY

Docket No. 58797.

Michigan Court of Appeals.

Decided October 6, 1982.

Donald J. Morbach & Associates, P.C. (by Lucetta F. Selecky), and Ulanoff, Ross, Summer, LaKritz, Wesley & Bloom, P.C. (by Barry F. LaKritz), for National Indemnity Company.

Dickinson, Mourad, Brandt, Hanlon & Becker (by A. Randolph Judd), for Detroit Automobile Inter-Insurance Exchange.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Ernest R. Bazzana), for St. Paul Fire & Marine Insurance Company.

Before: V.J. BRENNAN, P.J., and D.C. RILEY and V.R. PAYANT,^[*] JJ.

V.R. PAYANT, J.

National Indemnity appeals as of right from an order of partial summary judgment in which the trial court found that National Indemnity and DAIIE were liable in equal proportion for plaintiff's no-fault insurance benefits.

The underlying facts are not in substantial dispute. On November 10, 1978, Robert Winters, plaintiff's decedent, was operating a tractor-trailer which he owned and leased to his employer, Allied Delivery System, Inc. (Allied). Willie Penilton also owned a tractor which he leased to Allied. Winters's vehicle became disabled and Penilton was dispatched by Allied to go out to Plymouth Road to pick up the trailer, which he did. Penilton drove east on Plymouth Road and found Winters at a general store. Penilton offered to drive Winters back to Allied. They first drove back to the site of the disabled tractor to retrieve some paperwork. After they got the paperwork, Penilton got back in his tractor and pulled away from where Winters was standing and began to turn to straighten out the tractor. Winters told him to pull across the road and he would get in after the tractor was straightened out. Penilton next saw Winters lying in a ditch after he was hit by a car driven by Richard Sanocki. Sanocki testified that he swerved to avoid the tractor-trailer which was blocking both lanes of traffic and struck Winters, who was standing on the shoulder of the road.

The Winters and Penilton tractors were insured by St. Paul Fire & Marine Insurance (St. Paul) under a policy issued to Allied. Winters's tractor was also insured by National Indemnity with a policy of "bobtail" coverage. DAIIE insured Winters's personal vehicle.

The trial court granted St. Paul's motion for summary judgment, finding that Winters was not an occupant of Penilton's truck at the time of the accident. The court also found that no exclusions in National Indemnity's policy applied in order to relieve it of liability. Consequently, the court granted summary judgment in favor of plaintiff against National Indemnity and DAIIE and distributed the liability for plaintiff's no-fault benefits equally between the two insurers since they were in the same order of priority.

On appeal, National Indemnity challenges the trial court's entry of summary judgment in favor of St. Paul based on its findings that Winters was not an occupant of his employer's vehicle, nor was he a "named insured" on St. Paul's policy. It further contests the order of partial summary judgment holding itself and DAIIE equally responsible for plaintiff's no-fault benefits.

Initially, we note that National Indemnity lacks standing to appeal the summary judgment in favor of St. Paul where it filed no cross-claims against St. Paul and plaintiff accepted the trial court's ruling. It is a well-recognized rule that "one party cannot claim another party's appellate opportunities". Kewin v Melvindale-Northern Allen Park Public Schools Bd of Ed, 65 Mich. App. 472, 483; 237 NW2d 514 (1975).

While this precludes our consideration of whether Winters qualifies as a named insured under his employer's policy, we still must address the question of occupancy since it is relevant in determining priority between the defendant insurance companies. See Davis v Auto-Owners Ins Co, 116 Mich. App. 402; 323 NW2d 418 (1982). There is no doubt that plaintiff is entitled to no-fault benefits in that Mr. Winters's injuries arose out of the operation of a moving motor vehicle as a motor vehicle. MCL 500.3105; MSA 24.13105; Shinabarger v Citizens Mutual Ins Co, 90 Mich. App. 307, 314-315; 282 NW2d 301 (1979), lv den 407 Mich. 895 (1979). Once it is established that a claimant is entitled to no-fault benefits, it is necessary to determine which insurance company is liable for those benefits. MCL 500.3115; MSA 24.13115 provides, in pertinent part:

"Sec. 3115. (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."

Section 3115 only applies if Winters was not an "occupant" of the Penilton tractor-trailer at the time of the accident.^[1] If he was an occupant of the Penilton tractor-trailer at the time of the accident then MCL 500.3114(3); MSA 24.13114(3)^[2] applies and his employer's insurer, St. Paul, would be primarily liable.

In the recent case of Kalin v DAIIE, 112 Mich. App. 497; 316 NW2d 467 (1982), this Court reviewed the case law surrounding the "occupancy" issue. In that case, the plaintiff was injured when he was struck by a moving vehicle on his third trip to a store from his delivery truck. The Court held that plaintiff was not an "occupant" under the statute. In reaching its decision, the Court noted there was a distinction between the term "occupying" as used in an automobile insurance policy and the term as used in the statute. Language in an insurance policy is to be strictly construed against the insurer but statutory provisions are to be interpreted according to their commonly accepted meanings. The Court further distinguished those cases which found the plaintiff to be an "occupant", noting that the plaintiff's injuries were not sustained "immediately" after occupying his employer's vehicle and the injury was not as a result of any contact with the vehicle. The Court concluded that, at the very least, immediate prior occupancy was necessary to a finding of "occupancy" under the statute. Id., pp 502-506; cf. Davis v Auto-Owners Ins Co, supra.

In the instant case, Winters had left the Penilton vehicle to retrieve paperwork from his own vehicle. He had crossed the street and told Penilton that he would wait until he turned around before entering the vehicle. Winters was simply walking along the shoulder of the road as a pedestrian waiting for Penilton to turn around. Under these facts, we uphold the trial court's finding that Winters was not an occupant, there being no immediate prior occupancy and no physical contact with the tractor-trailer prior to the accident.

Since Winters was not an occupant, St. Paul, the employer's insurer, is not liable for plaintiff's no-fault benefits. The priority provisions of § 3115 therefore govern in determining liability as between National Indemnity and DAIIE, Winters's personal insurer.

National Indemnity claims that its "bobtail" policy on Winters's tractor was intended to cover the tractor only when it was not being used under Allied's lease, which intent is evidenced by the policy's contingent liability endorsement which, if applicable, is void as contrary to public policy because it limits the statutorily required coverage.^[3] We find that the trial court properly concluded that none of the exclusions listed in the contingent liability endorsement applied given the facts in this particular case. Winters's tractor was not being used for transporting goods or for loading or unloading (exclusion 2). It was also not being used for towing or transporting any trailer or semitrailer (exclusion 3). Finally, since Winters was not an occupant, Allied, Winters's employer, had not provided other valid and collectible insurance applicable to the accident. Hence, exclusions 4 and 5 do not apply. Because we find the exclusions to be inapplicable on their face, we need not address the public policy issue.

The final issue before us concerns whether the trial court erred in holding National Indemnity and DAIIE equally liable for plaintiff's no-fault benefits. The basis for equal contribution among insurers is found in MCL 500.3115(2); MSA 24.13115(2), which states:

"(2) When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers."

DAIIE contends that National Indemnity stood in a higher order of priority as the insurer of Winters's tractor which, because of its close proximity to the accident, was a vehicle involved in the accident. In support of its contention, DAIIE cites State Farm Fire & Casualty Co v Citizens Ins Co of America, 100 Mich. App. 168; 298 NW2d 651 (1980).

In State Farm, supra, the claimant was injured while driving a van insured by the plaintiff. The injured claimant and her husband also owned other vehicles insured by the defendant. The Court held that plaintiff was in a higher order of priority, being the insurer of the motor vehicle involved in the accident. The Court further noted that plaintiff had no right to partial recoupment from defendant for the personal protection insurance benefits paid since it had insured the claimant against the particular risk she incurred, whereas defendant had not insured against the same risk. Id., pp 177-178.

We agree with the trial court that State Farm is distinguishable from the instant case. Unlike the claimant in State Farm, Winters was not an occupant of any vehicle involved in the accident. We specifically reject the argument that a vehicle's close proximity to the scene of the accident is the same as being "involved" in the accident under the statute. If the Legislature had so intended, it would have clearly worded the statute in those terms.

Thus, because Winters was not an occupant of any motor vehicle involved in the accident, there is no clear reason for establishing any priorities between National Indemnity and DAIIE. We therefore affirm the trial court's order of partial summary judgment which divided the liability for plaintiff's no-fault benefits equally between the two insurers.

Affirmed.

NOTES

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

[1] Appellant does not claim that Winters was an occupant of his own tractor-trailer at the time of the accident.

[2] MCL 500.3114(3); MSA 24.13114(3) provides:

"(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."

[3] The "Contingent Liability Endorsement" provided, in relevant part:

"1. such insurance only applies to the named insurer.

"2. such insurance does not apply during such time as the automobile is used for transporting goods or merchandise, or while such goods or merchandise is being loaded or unloaded from the insured automobile.

"3. such insurance does not apply while the power unit (tractor) is used for the towing or transporting of any trailer or semi-trailer, or while the power unit is in the process of having a trailer or semi-trailer attached to or detached from it, unless such trailer of [sic] semi-trailer is owned by the named insured and specifically described in this policy.

"4. such insurance does not apply during such time as the named insured is operating, maintaining or using the automobile for or on behalf of any person or organization.

"5. such insurance does not apply during such time as the named insured is acting as an agent or employee of any person or organization.

"provided, however, such person or organization has provided other valid and collectible insurance, whether primary, excess or contingent in accordance with chapter 31 of the Michigan Insurance Code."