Preview:

STATE OF MICHIGAN COURT OF APPEALS

SHERRY WEBSTER, Plaintiff-Appellant,
V

UNPUBLISHED March 2, 2010

AUTO CLUB GROUP INSURANCE COMPANY, Defendant-Appellee.

No. 288971 Kalamazoo Circuit Court LC No. 08-000012-NF

Before: Beckering, P.J., and Markey and Borrello, JJ. PER CURIAM. In this action for no-fault benefits in connection with a parked car, plaintiff appeals by right the circuit court's order granting summary disposition to defendant. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). On January 15, 2007, plaintiff drove herself, a granddaughter, and a great-granddaughter to the home of a friend. Upon her arrival, she parked and left the vehicle. Then, on a slippery driveway, she approached the rear door on the driver's side and touched its handle, intending to retrieve a diaper bag from inside. Plaintiff slipped, fell, and sustained injuries. Plaintiff sought personal protection insurance (PIP) benefits from defendant, her insurer, but defendant denied the claim. Plaintiff brought suit, and defendant moved for summary disposition pursuant to MCR 2.116(C)(10), on the ground that plaintiff's injuries did not have a sufficient causal connection with the automobile. In granting the motion, the trial court held that plaintiff's version of events indicated that she was in the process of entering the vehicle when she fell, citing MCL 500.3106(1)(c), "because she was in physical contact with the vehicle and intended to retrieve some personal belongings from the interior," but that even so, plaintiff's injuries bore only incidental, fortuitous, or otherwise "most limited causal relationships to the parked motor vehicle." The court added, "plaintiff . . . did not slip while trying to enter the car; she slipped before she had opened or attempted to open the door." This Court reviews a trial court's decision on a motion for summary disposition de novo as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a

-1-

trial." Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Statutory interpretation likewise presents a question of law, calling for review de novo. Ardt, supra at 690. To recover PIP benefits in connection with an accident involving a parked car, the plaintiff must establish that one of the exceptions to the parking exclusion of MCL 500.3106(1) applied, that the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle, and that "the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for." Putkamer v Transamerica Ins Corp, 454 Mich 626, 636; 563 NW2d 683 (1997). Section 3105(1) of the no-fault act1 states, "Under personal protection insurance 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 . . . ." Section 3106(1) in turn defines coverage in connection with parked vehicles: 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),[2] 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) Except as provided in subsection (2), the injury was sustained by a person while occupying, entering into, or alighting from the vehicle. We conclude that the trial court erred in holding that plaintiff satisfied MCL 500.3105(1)(c) in the first instance. In King v Aetna Casualty & Surety Co, 118 Mich App 648; 325 NW2d 528 (1982), the plaintiff had parked his car in a grocery store's parking lot, shopped in the store, and then returned to his car while carrying a bag of groceries. Id. at 649. The plaintiff slipped on an icy surface and fell as he removed his car keys from his pocket and reached to unlock the door. Id. at 650. The plaintiff's hand was about two inches from the car when he fell, but the plaintiff could not remember whether his key ever touched the car. Id. This Court held that "plaintiff was not entering his vehicle when he slipped and fell, but was merely preparing to enter it," and thus concluded, "Because none of the three subsections of the parked vehicle exclusion (

Download SHERRY WEBSTER V AUTO CLUB GROUP INSURANCE COMPANY.pdf

Michigan Law