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STATE OF MICHIGAN
COURT OF APPEALS


GLENN HEPNER, Guardian and Conservator of the Estate of HENRY HEPNER, Plaintiff-Appellee, v

UNPUBLISHED January 7, 1997

No. 189083 Macomb Circuit Court LC No. 92-000513

AETNA CASUALTY & SURETY CO., Defendant-Appellant.

Before: Fitzgerald, P.J., and Holbrook, Jr., and E.R. Post,* JJ. PER CURIAM. Defendant appeals as of right from the judgment entered on a jury verdict for plaintiff in this action for breach of insurance contract under the Michigan No-Fault Insurance Act, MCL 500.3101 et seq.; MSA 24.13101 et seq. On appeal, defendant argues that the trial court erred in denying its motions for summary disposition pursuant to MCR 2.116(C)(10), judgment notwithstanding the verdict, and a new trial. We affirm. On March 3, 1991, Henry Hepner arrived at the Assembly Line Lounge in Shelby Township at approximately 12:00 p.m., had one drink, and then left. Later that afternoon, Hepner returned to the bar for another drink, consumed it, and left an estimated five minutes later. At approximately 3:00 p.m., the bar owner and others found Hepner unconscious in the parking lot lying on the ground next to the driver's side door of his car, which was open. Hepner was lying partially under his vehicle. Hepner's keys were found lying next to his body. Hepner incurred a closed head injury and a skull fracture from his accident in the parking lot, which rendered him incapacitated. On February 4, 1992, plaintiff filed this action against defendant, claiming that it failed to honor plaintiff's claim for payment under Hepner's no-fault automobile insurance policy. On July 8, 1994, the jury found that Hepner's injuries arose while he was occupying, entering into, or alighting from his car. * Circuit judge, sitting on the Court of Appeals by assignment. -1

Thus, Hepner was entitled to no-fault benefits pursuant to MCL 500.3106(1)(c); MSA 24.13106(1)(c). On appeal, defendant first advances that the trial court erred in denying its MCR 2.116(C)(10) motion for summary disposition because plaintiff failed to produce evidence to establish a triable issue of fact regarding whether Hepner's injuries arose in the course of occupying, entering into, or alighting from his vehicle. We disagree. Summary disposition pursuant to MCR 2.116(C)(10) is appropriate when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." This Court considers the factual support for the claim, giving the benefit of any reasonable doubt to the nonmoving party to determine whether a record might be developed which might leave open an issue upon which reasonable minds could differ. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866 (1995). When deciding a motion for summary disposition, a court must consider the pleadings, depositions, affidavits, admissions and other documentary evidence available to it. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). This Court reviews de novo a decision regarding a motion for summary disposition pursuant to MCR 2.116(C)(10). Jackhill, supra. The no-fault insurance act provides that "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." MCL 500.3105(1); MSA 24.13105(1); Gordon v Allstate Ins Co, 197 Mich App 609, 611; 496 NW2d 357 (1992). Generally, injuries sustained from parked motor vehicles are not compensable under the no-fault act. Id. In order to recover no-fault insurance benefits for injuries sustained in connection with a parked vehicle, a party's injuries must fall under one of the categories delineated in

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