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STATE OF MICHIGAN COURT OF APPEALS

MEEMIC INSURANCE COMPANY, Plaintiff-Appellant, v WALTER SAKOWSKI, Personal Representative of the Estate of MARY JO MCNAMARA, Defendant-Appellee.

UNPUBLISHED June 5, 2012

No. 301157 Wayne Circuit Court LC No. 10-010980-NF

Before: MURPHY, C.J., and STEPHENS and RIORDAN, JJ. PER CURIAM. In this declaratory judgment action, plaintiff MEEMIC Insurance Company appeals as of right the trial court's order granting summary disposition in favor of defendant Mary Jo McNamara and denying MEEMIC's motion for summary disposition. The motions were brought pursuant to MCR 2.116(C)(10). We reverse and remand for entry of judgment in favor of MEEMIC. McNamara was a backseat passenger in a car that had just been parked at a condominium after McNamara and friends had finished a day of shopping. McNamara sustained serious injuries as the result of falling to the pavement outside of her car door after losing her balance in an unsuccessful attempt to stop a glass bottle of water she had purchased from falling and breaking. After the instant appeal was filed, McNamara unfortunately died. McNamara was a named insured on a policy issued by MEEMIC, and, pursuant to the no-fault act, MCL 500.3101 et seq., a claim for personal protection insurance (PIP) benefits was submitted to MEEMIC, which denied the claim on the basis that McNamara was not entitled to PIP benefits under MCL 500.3105 and MCL 500.3106. MEEMIC proceeded to file a declaratory judgment action to settle the dispute. McNamara, in support of her position that PIP benefits were due and payable, relied on MCL 500.3106(1)(b), which provides: (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: *** -1-

(b) Except as provided in subsection (2) [inapplicable Worker's Disability Compensation provision], 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. [Emphasis added.] McNamara maintained and argues on appeal that MCL 500.3106(1)(b) is applicable because the injuries were a direct result of physical contact with property, i.e., the water bottle, as it was being lowered from Sheeran's car in the unloading process. On competing motions for summary disposition, the trial court denied MEEMIC's motion and granted McNamara's motion, finding that MCL 500.3106(1)(b) was indeed applicable as a matter of law. The court cited Sherman v Mich Mut Ins Co, 124 Mich App 700; 335 NW2d 232 (1983), in support of its ruling. MEEMIC appeals as of right, setting forth numerous arguments with respect to why MCL 500.3106(1)(b) does not apply to the factual circumstances presented in this case. A trial court's ruling on a motion for summary disposition is reviewed de novo on appeal, Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011), as is a question of statutory interpretation, Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(C)(10) tests the factual support for a party's claim. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The trial court is not permitted to assess credibility, to weigh the evidence, or to resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). Skinner, 445 Mich at 161; Hines v Volkswagen of America, Inc, 265 Mich App 432, 437; 695 NW2d 84 (2005). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary disposition under MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). As indicated above, MCL 500.3106(1)(b), the statutory provision at issue, provides as follows: (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: *** (b) [T]he injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or -2-

used, or property being lifted onto or lowered from the vehicle in the loading or unloading process. [Emphasis added.] In Arnold v Auto-Owners Ins Co, 84 Mich App 75; 269 NW2d 311 (1978), this Court found the statutory provision quoted above to be ambiguous in tackling the question of whether the two clauses in the statute, i.e., the "equipment" and "property" clauses, were dependent or independent clauses. The Court found that the clauses were independent and held that

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