Randles v. Carriers Insurance , 139 Mich. App. 57 ( 1984 )

139 Mich. App. 57 (1984) 361 N.W.2d 6

RANDLES
v.
CARRIERS INSURANCE COMPANY

Docket No. 73279.

Michigan Court of Appeals.

Decided August 23, 1984.

Sam Serra, for plaintiff.

Romain, Donofrio & Kuck, P.C. (by Ernst W. Kuck and John C. Brennan), for Carriers Insurance Company.

Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. (by James L. Borin), for Allstate Insurance Company.

Before: GRIBBS, P.J., and HOOD and R.D. KUHN,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from summary judgments granted in favor of both defendant insurance companies. The trial judge held that plaintiff's back injury was not compensable under the no-fault automobile insurance act.

At the time of the claimed accident, plaintiff was a yardman for F.J. Boutell Company. His job responsibilities included loading and unloading trucks carrying automobiles. He had to drive the automobiles to and from a large parking lot on his employer's premises. He rode in vans provided by his employer in order to reach and return from vehicles located a substantial distance away from the trucks.

On April 22, 1980, while getting in and out of these various vehicles, plaintiff's back began to hurt. The pain became worse each time he had to bend in and out of the vehicles he was entering and leaving. This back injury is the injury for which he seeks to recover no-fault benefits.

Defendant Carriers Insurance Company insured the vans in which plaintiff rode to and from new vehicles on the lot. The automobiles themselves were not insured and not required to be. Defendant Allstate Insurance Company was plaintiff's personal no-fault insurer.

Both defendants moved for summary judgment, GCR 1963, 117.2(3), claiming that plaintiff's injury was not covered by the no-fault act. Both motions were granted.

At the motion hearing and on appeal, defendants claim that plaintiff did not incur a single injury to his back, but suffered progressively greater pain which eventually resulted in his alleged injury. In making this argument, defendants rely on the following statements taken from plaintiff's deposition:

"Q. Mr. Randles, I mean, did anything happen while you were at work in April of ``80? Did you fall down or were you hurt again?

"A. I did not fall down again, no; just constantly walking, bending over.

"Q. You didn't have any accident, what you would call an accident in April of 1980?

"A. No."

These statements do not clearly support the proposition that no single point in time existed at which an injury occurred. The fact that an injury was not immediately perceptible is not dispositive; traumatic injuries do not always manifest themselves when first received.^[1]

On appeal, plaintiff claims that, although it cannot be identified, a single point in time existed at which the pain in his back increased so suddenly that it can be said that an injury occurred. For purposes of this appeal, we accept this claim as true. We nonetheless affirm the decision of the trial court. For purposes of this appeal, we view this case as one in which the plaintiff injured his back while entering or exiting from a motor vehicle. A no-fault insurer is liable to pay personal protection 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. Bodily injury is not accidental only if it was intentionally suffered by the injured person or intentionally caused by the person claiming benefits. MCL 500.3105(4); MSA 24.13105(4). Under the statutory definition, the injury to plaintiff was accidental.

We nonetheless find that the injury did not arise out of the use of a motor vehicle as a motor vehicle. We agree with the trial court that the motor vehicles in question merely provided the situs for plaintiff's injury.

When the legislative purpose behind the no-fault act is considered, the facts of this case are closely analogous to those of Wheeler v Tucker Freight Lines Co, Inc, 125 Mich. App. 123; 336 NW2d 14 (1983). In Wheeler, this Court stated that 19 years of the rigors of truck driving eventually took their toll on the plaintiff's back, "disabling him completely by late 1979". The Supreme Court has stated that eligibility for no-fault benefits depends on "whether the injury upon which the claim is based is the type of injury which the act is designed to compensate". See Belcher v Aetna Casualty & Surety Co, 409 Mich. 231, 242; 293 NW2d 594 (1980).

In Wheeler, this Court noted that the plaintiff's injury was "accidental" under a literal reading of the statutory definition contained in MCL 500.3105(4); MSA 24.13105(4). It held, however, that a literal application of the terms of the statute in that case would conflict with the underlying purpose of the no-fault act. Wheeler, supra, p 126. This Court concluded that plaintiff's injuries were not compensable because they were not sustained in a single accident having one temporal and spatial location. Instead, they arose from a series of events spanning many years of driving over many miles of roads. Wheeler, supra, p 128.

Plaintiff has attempted to distinguish the present case from Wheeler, supra. Although some of the reasoning in Wheeler does not apply here, much of it does. Even though plaintiff's injury was not suffered intentionally, it was not the result of a "motor vehicle accident" as that term is commonly understood.

We find the reasoning of the Minnesota Supreme Court in a similar case to be persuasive:

"Galle and Schroedl were both engaged in loading and unloading heavy boxes inside of stationary vehicles. * * * The only issue on appeal is whether plaintiffs' injuries arose out of the ``maintenance or use of a motor vehicle,' the definition of which is set forth in Minn. Stat § 65B.43, subd. 3 (1980):

"``"Maintenance or use of a motor vehicle" means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it. Maintenance or use of a motor vehicle does not include * * * (2) conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into or alighting from it. (emphasis added).'

"* * * In the present case, all three plaintiffs were engaged in loading or unloading activities and were occupying or entering their vehicles at the time they suffered their injuries. Thus both requirements of § 65B.43, subd. 3(2) (1980) have been met.

"We do not believe, however, that all loading and unloading injuries incurred while occupying, entering into or alighting from a vehicle are necessarily compensable under the No-Fault Act. The injury must also arise out of the ``maintenance or use of a motor vehicle as a vehicle.' Minn. Stat. § 65B.43, subd. 3 (1980). To hold otherwise would lead to extreme and absurd coverage results which we are certain the Legislature never intended. Would no-fault coverage exist in a situation where a Brinks security guard standing in the rear of his truck unloading money is shot by a robber? Would coverage be extended to an instance where the freight being unloaded were fireworks and the injury resulted from an accidental explosion? We do not believe these are injuries for which the Act is intended to provide compensation, for there is no causal relationship between the injury and the use of the vehicle for transportation purposes. Haagenson v Nat'l Farmers Union Property & Casualty Co, 277 NW2d 648, 652 (Minn 1979).

"The Commissioners' Comments to Section 1(a)(6) of the 1972 Uniform Motor Vehicle Accident Reparations Act, in discussing the definition of ``maintenance or use of a motor vehicle' state:

"``While "use" has a broader meaning than operating or driving a vehicle, the requirement that use of the motor vehicle be "as a motor vehicle" qualifies the term so that both the tort exemption and the availability of basic reparation benefits are more nearly limited to activities whose costs should be allocated to motoring as part of an automobile insurance package.'

"14 Uniform Laws Annotated 55-56 (1980).

"The maintenance or use issue has been discussed in several cases, but ``each case presenting such a question must to a great degree, turn on the particular facts presented.' Associated Independent Dealers, Inc v Mutual Service Ins Cos 304 Minn 179, 182; 229 NW2d 516, 518 (1975) (footnote omitted). A person injured when he is entering a car intending to become a passenger would be allowed recovery. See Haagenson v Nat'l Farmers Union Property & Casualty Co, 277 NW2d 648, 652 (Minn 1979). In contrast, an intoxicated, unconscious person who dies due to exposure when left sitting in a car overnight has not suffered an injury arising from the use of the automobile as a vehicle. See Engeldinger v State Auto & Casualty Underwriters, 306 Minn 202; 236 NW2d 596 (1975). Where it is established that the injury or loss ``was a natural and reasonable incident or consequence of the use of the [insured] vehicle,' Associated Independent Dealers, Inc v Mutual Service Ins Cos, 304 Minn 179, 182; 229 NW2d 516 (1975) (footnote omitted), a sufficient relationship between the injury and the use of the vehicle for transportation purposes exists to allow recovery.

"* * * While it is true that lifting injuries are not unlikely when the vehicle in question is a delivery truck, it is apparent that the injuries occur not because of the use of the vehicle but because of the nature of plaintiffs' employment. This is not one of those activities ``whose costs should be allocated to motoring as part of an automobile insurance package.' Commissioner's Comments supra." Galle v Excalibur Ins Co, 317 NW2d 368, 369-370 (Minn, 1982) (footnote omitted).

We agree with the trial judge that plaintiff's injury, suffered "through accumulated use of his body in a certain way in the course of his employment", was not an injury from a motor vehicle accident under the no-fault act.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Plaintiff's deposition was never filed with the trial court and has not been included in the record on appeal. We are unwilling to place total reliance on isolated phrases in a deposition, where no effort is made to inform the court of the context in which those phrases are use.