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STATE OF MICHIGAN
COURT OF APPEALS


CARLA K. AMY, Plaintiff-Appellee/Cross-Appellant, v MIC GENERAL INSURANCE CORP., Defendant-Appellant/CrossAppellee, and STATE FARM INSURANCE CO., Defendant.

FOR PUBLICATION August 14, 2003 9:00 a.m. No. 237055 Saginaw Circuit Court LC No. 99-027495-CK

DEPARTMENT OF COMMUNITY HEALTH, Plaintiff-Appellee, v MIC GENERAL INSURANCE CORP., Defendant-Appellant, and STATE FARM INSURANCE CO., Defendant.

No. 237056 Saginaw Circuit Court LC No. 99-029159-NF

TAMMY SUE STEWART, Plaintiff-Appellant, -1-

and CARLA K. AMY, Cross-Appellant, v No. 237379 Saginaw Circuit Court LC No. 98-017143-CM

STATE OF MICHIGAN, Defendant-Appellee/Cross-Appellee.

TAMMY SUE STEWART, Plaintiff-Appellee, v No. 237380 Saginaw Circuit Court LC No. 98-026176-CK

MIC GENERAL INSURANCE CORP., Defendant-Appellant, and STATE FARM INSURANCE CO., Defendant. Updated Copy October 10, 2003

Before: Whitbeck, C.J., and Neff and Donofrio, JJ. DONOFRIO, J. These consolidated appeals concern the granting of multiple motions for summary disposition in four of seven related and consolidated actions for personal injury protection benefits awarded and denied pursuant to certain sections of the Michigan no-fault automobile insurance law, MCL 500.3106(1)(a), MCL 500.3114(5)(a), and MCL 500.3114(6), following a serious automobile and motorcycle accident that resulted in a death and other serious injuries requiring extensive medical care.

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Plaintiff Carla K. Amy, as the surviving spouse of decedent Douglas K. Amy, sought survivor's benefits.1 Plaintiff Tammy Sue Stewart sought no-fault personal injury protection (PIP) benefits.2 Plaintiff Michigan Department of Community Health (MDCH), as subrogee of Stewart, sought reimbursement of sums paid for medical care to Stewart arising from the accident.3 Defendant MIC General Insurance Corporation (MIC) is the insurer of a disabled vehicle involved in the accident and defendant the state of Michigan is the self-insurer of the state police vehicle also involved in the accident.4 The claimants, Amy, Stewart, the MDCH, and cross-appellant MIC, appeal as of right a grant of summary disposition in favor of the state denying their claims for no-fault benefits. MIC appeals as of right a grant of summary disposition to the claimants awarding no-fault benefits. The appeals were consolidated. We affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY The facts are not in dispute in the furtherance of this appeal. On March 26, 1998, Douglas Amy and Tammy Stewart had been at Todd's Bar. Douglas Amy left the bar's parking lot and proceeded north on Dixie Highway in Saginaw County on his Harley-Davidson motorcycle with Stewart as a passenger. Douglas Amy drove only a short distance before striking the rear of a Michigan State Police cruiser stopped in the right northbound travel lane with its emergency lights activated. At the time of the accident, the police cruiser had stopped to provide assistance to Linda (Cisneros) Jones, whose vehicle had become disabled. The Jones vehicle was insured by MIC. At this particular location, Dixie Highway consists of five lanes. There are two northbound lanes, two southbound lanes, and a center turn lane. There are no shoulders to the roadway. Instead, there is a curb. It is undisputed that when the vehicle became disabled, Jones maneuvered the vehicle into the right lane near the curb. She then turned on her vehicle's emergency warning flashers. When the state trooper came upon the scene, he stopped behind the disabled vehicle, activated the cruiser's emergency lights, placed the cruiser's transmission in park, and left the police vehicle's engine running. The state trooper advised Jones that he would use the state police car to push her disabled vehicle off the road. The trooper intended to eliminate the hazard created by the disabled vehicle in blocking traffic. Jones was seated behind the steering wheel of her disabled vehicle awaiting a push as the trooper walked back to enter his vehicle to render further assistance. However, before the trooper could enter his vehicle, Douglas Amy's

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MCL 500.3108; MCL 500.3114(5). MCL 500.3107; MCL 500.3114(5). MCL 400.106. Neither the right to, nor the amount of, subrogation is contested. MCL 257.531; MCL 500.3101(4).

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motorcycle crashed into the back of the police cruiser. The force of that crash pushed the police cruiser forward about ten feet, but there was never any contact between the cruiser and the disabled vehicle. As a result of the collision, Douglas Amy was killed and Stewart sustained significant bodily injury, including amputation of her right leg below the knee, head trauma, and other injuries. Plaintiff-appellee Carla K. Amy (hereafter Amy) is the wife of decedent Douglas Amy. The motorcycle was insured through defendant State Farm Insurance Company for liability and property damage coverage.5 It was not insured for optional medical benefits allowed under MCL 500.3103(2). Amy, Stewart, and the MDCH, as subrogee of Stewart, filed various lawsuits for PIP benefit coverage from MIC and the state. Amy filed suit seeking PIP benefits from the state, relative to the police cruiser, as well as from MIC, relative to the disabled vehicle. Stewart filed suit seeking PIP benefits from the state and MIC. The MDCH, having paid most of Stewart's medical expenses, filed suit against MIC and the state. MIC and the state filed motions for summary disposition. The trial court found that the MIC insured vehicle involved was an active link in the chain of events that led to the injuries, and denied MIC's motion for summary disposition that was predicated essentially on the alleged noninvolvement of the vehicle. The trial court further denied the state's motion for summary disposition because of unresolved factual issues. After factual development, all the parties except MIC filed motions for partial or full summary disposition to fix liability for PIP insurance claims arising out of the accident. After resolving factual issues affecting coverage, the trial court placed PIP benefit coverage with MIC for plaintiffs' claims and relieved the state from liability for the same claims on the basis of the privileged status of the police cruiser pursuant to MCL 257.603. Following the trial court's orders, MIC entered into a settlement with Stewart and received an assignment of her rights against the state.6 By stipulation, including preservation of rights of appeal, MIC and Amy stipulated the entry of a final judgment on calculated PIP benefits. Similarly, MIC and the MDCH stipulated the entry of a final judgment on the PIP subrogation claim. The appeals and cross-appeals followed. STANDARD OF REVIEW

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State Farm Insurance Company does not participate in this appeal.

MCL 500.3114(6). The state does not challenge the right of MIC to claim reimbursement. The state denies any obligation to pay PIP benefits under the presented facts and, therefore, the entitlement of MIC to recover benefits paid or payable.

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A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim, and the granting of the motion is subject to review de novo.7 A trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties. If there is no genuine issue in respect to any material fact, the moving party is entitled to judgment as a matter of law.8 Where the facts are undisputed, the determination of the applicability of a statute is an issue of statutory construction for the court.9 Questions involving statutory interpretation are reviewed de novo.10 STATUTORY LAW This appeal primarily involves the interpretation of two sections of the Michigan no-fault automobile insurance law, MCL 500.3101 et seq.11 Section 3106 provides in relevant part: (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: (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), 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. Section 3114 provides: (1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury . . . . * * *

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Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Wills v State Farm Ins Cos, 437 Mich 205, 208; 468 NW2d 511 (1991). Smith v Globe Life Ins Co, 460 Mich 446, 458; 597 NW2d 28 (1999). Other sections of the statute will be referenced separately in the analysis.

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(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) The insurer of the owner or registrant of the motor vehicle involved in the accident. * * * (6) If 2 or more insurers are in the same order of priority to provide personal protection insurance benefits under subsection (5), 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 all of the insurers. ANALYSIS I MIC argues on appeal that its insured motor vehicle was a parked motor vehicle and was neither parked in such a way so as to cause unreasonable risk of the bodily injury that occurred, nor involved in an accident involving a motorcycle and multiple motor vehicles.12 The claimants, Amy, Stewart, and the MDCH, argue to the contrary and alternatively suggest that the MIC insured vehicle was not a parked vehicle because of its location, or was exempt from the parked vehicle exclusion of

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