Schuster v. Allstate Insurance , 146 Mich. App. 578 ( 1985 )

146 Mich. App. 578 (1985) 381 N.W.2d 773

SCHUSTER
v.
ALLSTATE INSURANCE COMPANY

Docket No. 71333.

Michigan Court of Appeals.

Decided October 22, 1985.

Bebout, Potere, Cox & Hughes, P.C. (by John P. Strayer), for John E. Schuster.

Luce, Henderson, Bankson, Heyboer & Lane (by Cynthia A. Lane), for Allstate Insurance Company.

McIntosh, McColl, Allen, Carson, McNamee & Strickler (by John B. McNamee), for State Farm Mutual Automobile Insurance Company.

Before: BEASLEY, P.J., and J.H. GILLIS and M.J. KELLY, JJ.

PER CURIAM.

Defendant Allstate Insurance Company appeals as of right from an order of summary judgment declaring Allstate solely liable for no-fault benefits payable to plaintiff. We affirm in part and reverse in part.

This case arises out of an accident that occurred on the evening of February 12, 1982, when a snowmobile operated by Scott Thomas collided with a parked car. Plaintiff, John E. Schuster, who was then 16 years old, was a passenger on the snowmobile and was injured as a result of the collision. Operator Scott Thomas's injuries resulted in his death.

The snowmobile was not covered by a policy of insurance. Allstate is the no-fault insurance carrier of vehicles owned by plaintiff's relatives with whom he resided. The owner of the parked car was insured under a no-fault policy with State Farm Mutual Automobile Insurance Company.

On August 16, 1982, plaintiff, by his stepmother and next friend, Barbara Hutchins, filed a complaint for declaratory relief against Allstate and State Farm alleging that both insurers had a duty to provide plaintiff with no-fault benefits and that both had refused to do so. On November 28, 1984, the trial court issued an amended final order granting summary judgment under GCR 1963, 117.2(2) in favor of plaintiff and against Allstate declaring as a matter of law that Allstate owed plaintiff no-fault benefits of $378.45 in medical expenses and $3,680.00 in wage-loss benefits. The court's order also granted summary judgment in favor of State Farm under GCR 1963, 117.2(3). Allstate now appeals from this order as of right.

To qualify for benefits under Michigan's no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., plaintiff must plead facts sufficient to establish that his injuries arose out of the use or operation of a motor vehicle as a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). The trial court found Allstate liable for no-fault benefits on the theory that the snowmobile was a motor vehicle because, at the time of the collision, it was being used for transporting persons on a public highway rather than as an off-the-road recreational vehicle. In reaching this conclusion, the court relied upon Rooney v DAIIE, 94 Mich App 448; 288 NW2d 445 (1979).

Our decision in Rooney v DAIIE, however, relied upon pre-no-fault law since the accident in that case had occurred prior to the effective date of the no-fault act. Consequently, we construed the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq., and determined that a snowmobile is self-propelled and hence constitutes a motor vehicle as defined under MCL 257.33; MSA 9.1833.

The accident in this case occurred after the effective date of the no-fault act and is governed by its provisions. It is evident to us that the Legislature fully intended to narrow the definition of "motor vehicle" as used in that act:

"``Motor vehicle' means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b of Act No. 300 of the Public Acts of 1949 * * *." MCL 500.3101(2)(c); MSA 24.13101(2)(c).

This Court in another pre-no-fault case described the character of a snowmobile as "a land motor vehicle operated on crawler treads, as well as equipment designed for use principally off the road". DAIIE v Spafford, 76 Mich App 85, 89; 255 NW2d 780 (1977), lv den 402 Mich 825 (1977). We agree that snowmobiles are not designed for operation upon public highways and do not have wheels, at least in the conventional "on the ground" sense. We believe that the Legislature intended "wheels" to mean wheels used to propel the vehicle and not extraneous wheels or those used with runners or belt-type treads. Injuries arising out of the ownership, operation, maintenance or use of a snowmobile are not compensable under a Michigan no-fault insurance policy. See also Bialochowski v Cross Concrete Pumping Co, Inc, 141 Mich App 315, 320; 367 NW2d 381 (1985); Johnston v Hartford Ins Co, 131 Mich App 349, 356; 346 NW2d 549 (1984), lv den 419 Mich 893 (1984); Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983). The trial court thus erred in concluding that plaintiff was entitled to no-fault benefits for injuries arising out of his use of a snowmobile.

Plaintiff alternatively argues, as he did below, that even if snowmobiles do not constitute motor vehicles under Michigan's no-fault act, he is nevertheless entitled to benefits because the car with which the snowmobile collided was parked in such a way as to cause unreasonable risk of bodily injury to plaintiff. MCL 500.3106; MSA 24.13106. Given the trial court's resolution of the issue of liability on the theory that the snowmobile constituted a motor vehicle, Allstate's liability under the parked-car exception to the no-fault act was never decided below. At this point in the proceedings, plaintiff and defendant dispute whether the car was parked in an unreasonable manner and we cannot affirm the order of summary judgment, issued pursuant to GCR 1963, 117.2(2), on this basis. We remand instead for further proceedings on the issue of Allstate's liability under MCL 500.3106; MSA 24.13106.

Allstate contends that the court's order dismissing State Farm should be reversed as premature and that State Farm should be reinstated as a party defendant in the proceedings on remand. We disagree. In the event that plaintiff is found to be entitled to no-fault benefits under MCL 500.3106; MSA 24.13106, it will be as a nonoccupant of the motor vehicle involved in the accident and priority of insurance coverage will be determined according to MCL 500.3115(1); MSA 24.13115(1) and MCL 500.3114(1); MSA 24.13114(1). Since Allstate is the insurer of a policy issued to relatives with whom plaintiff is domiciled, Allstate and not State Farm would be liable for plaintiff's no-fault benefits. See Royal Globe Ins Co v Frankenmuth Mutual Ins Co, 419 Mich 565, 568-570; 357 NW2d 652 (1984); Underhill v Safeco Ins Co, 407 Mich 175, 182; 284 NW2d 463 (1979). That portion of the trial court's order dismissing State Farm as a party defendant is affirmed.

Finally, if on remand the trial court finds that plaintiff is entitled to no-fault benefits under MCL 500.3106; MSA 24.13106, Allstate will be liable for plaintiff's work-loss benefits for the period of February through December of 1982. In the proceedings below, the court considered the testimony of Robert Winkler, coordinator of the co-op program at plaintiff's high school, and found that plaintiff had established loss of wages attributable to the accident through the end of 1982. We are not persuaded that this finding is clearly erroneous. GCR 1063, 517.1, now MCR 2.613(C).

Affirmed in part, reversed in part and remanded.