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STATE OF MICHIGAN
COURT OF APPEALS


TINA McCARTHY, Plaintiff-Appellee, v ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

UNPUBLISHED June 4, 1999

No. 212629 Delta Circuit Court LC No. 97-013816 NI

Before: Whitbeck, P.J., and Markman and O'Connell, JJ. PER CURIAM. Defendant-appellant Allstate Insurance Company ("Allstate") appeals as of right a judgment for plaintiff-appellee Tina McCarthy ("McCarthy") that the trial court entered after granting McCarthy's motion for summary disposition. The trial court found that McCarthy was entitled to judgment as a matter of law based on the determination that a sufficient causal connection existed between her injury and her use of her motor vehicle as a motor vehicle. We reverse. I. Basic Facts And Procedural History The facts in this matter are not in dispute. In mid-May, 1997, McCarthy injured her back while removing a box of pasties from her parked, two-door automobile. McCarthy had been selling pasties to help raise funds for her son's hockey team and some of her coworkers had ordered pasties. McCarthy brought the pasties to work in a box in the back of her automobile and then left them in the automobile while she went into her place of work. About an hour and a half later, McCarthy returned to her automobile to unload the box of pasties. McCarthy entered the automobile through the driver's side door and sat in the driver's seat with both feet on the floor. McCarthy then twisted and turned to her right, reaching behind her and into the back passenger side of the automobile. McCarthy then lifted the box of pasties with both hands and attempted to lift it over the seat. McCarthy testified at her deposition that the box "got caught on the seat" and that she had to "yank on it." At this point, McCarthy experienced pain in her back and thought that perhaps she had pulled a muscle. After working that day and another two days, McCarthy saw her chiropractor but this only seemed to worsen her condition and she later received further medical treatment. McCarthy did not thereafter return to work. -1

After Allstate, her automobile insurer, refused to pay personal protection insurance ("PIP") benefits, McCarthy brought suit against Allstate, seeking those benefits. The trial court granted summary disposition for McCarthy pursuant to MCR 2.116(C)(10). The trial court later entered judgment for McCarthy in the amount of $62,453.19, representing her medical expenses, wage loss, and attorney fees, along with mediation sanctions and interest. II. Standard Of Review This Court reviews a trial court's decision whether to grant a motion for summary disposition based on MCR 2.116(C)(10) de novo. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). This Court must determine whether any genuine issue of material fact exists that would prevent entering a judgment for the moving party as a matter of law. Id. In making this determination, this Court must "consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party." Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). Under the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. (the "no fault act"), an insurer must pay PIP 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). Where there is no factual dispute, as in this case, "the issue whether an injury arose out of the use of a vehicle is a legal issue for a court to decide and not a factual one for a jury." Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 630; 563 NW2d 683 (1997). III. Analysis A. Provisions Of The No-Fault Act Relating To Parked Vehicles Under the no-fault act, if the injury involves a parked vehicle, MCL 500.3106(1); MSA 24.13106(1) applies. This section provides in 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) . . . [T]he 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) . . . [T]he injury was sustained by a person while occupying, entering into, or alighting from the vehicle. [Id.; emphasis supplied.]

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B. The Putkamer Three-Pronged Test The Michigan Supreme Court has set forth a three-part test for cases involving parked vehicles, holding: [W]here a claimant suffers an injury in an event related to a parked motor vehicle, . . . he must demonstrate that (1) his conduct fits one of the three exceptions of subsection 3106(1); (2) the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle; and (3) the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for. [Putkamer, supra at 635-636 (emphasis in original).] Here, McCarthy was injured while sitting inside her parked vehicle with both feet on the floor, attempting to remove a box of pasties. McCarthy was clearly occupying the vehicle at the time of the injury, satisfying the first step of the Putkamer test since her conduct fits within the exception listed in

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