Timothy McAllister v. Mike Vuich III ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY MCALLISTER, UNPUBLISHED
March 21, 2019
Plaintiff-Appellant,
No. 339877
Macomb Circuit Court
LC No. 2015-002875-NI
v
MIKE VUICH, III, BPD PAVING SERVICES,
INC., LONNIE HAVERCAMP, and VAN HORN
BROS, INC.,
Defendants,
and
LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant-Appellee.
Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
Plaintiff, Timothy McAllister, appeals as of right the order of the trial court granting
summary disposition to defendant, Liberty Mutual Fire Insurance Company (Liberty), pursuant
to MCR 2.116(C)(10). We affirm.
I. FACTS
This is an action for personal protection insurance (PIP) benefits under Michigan’s no-
fault act, MCL 500.3101 et seq. On November 20, 2014, plaintiff was injured when a cement
truck, as a result of an accident with another vehicle, slid into the parked pickup truck plaintiff
had been driving, which in turn caused the pickup truck to strike him as he stood in front of it.
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The pickup truck was owned by plaintiff’s fiancée, Heidi Dover, with whom plaintiff lived.
Dover is the named insured on a no-fault insurance policy issued by Liberty. Plaintiff testified
that he regularly drove the pickup truck for personal use and also for his lawn care, landscaping,
and snowplowing business.
Plaintiff testified that on that day he had driven the pickup to a business called Total
Trailer Parts on East Auburn Road in Rochester Hills, Michigan, for maintenance to the truck’s
snowplow. He parked the pickup in a parking spot in the parking lot of that business, turned off
the ignition, popped open the hood but did not open it fully, then got out of the pickup and shut
the truck’s door. Plaintiff testified that he walked around to the front of the truck and stood
centered in front of the truck and was “[s]tanding, maybe bent over a little bit” working on the
wires that protruded from the grill of the truck and attached to the snowplow. He heard a crash,
looked up, and saw a truck coming toward him. Plaintiff testified that the truck hit the passenger
rear side of the bed of the pickup truck, causing the pickup to spin around. He testified that he
tried to move out of the way, but the next thing he knew he was on the ground.
The oncoming truck was driven by defendant Mike Vuich III and was owned by Vuich’s
employer, defendant BPD Paving Services (BPD). Defendant Lonnie Havercamp was driving a
vehicle owned by his employer, defendant Van Horn Bros, Inc. (Van Horn). The two vehicles
collided in the intersection of East Auburn Road and Harrison Avenue, causing the truck driven
by Vuich to veer into the parking lot where plaintiff was standing in front of Dover’s parked
pickup truck. The truck driven by Vuich struck the parked pickup truck, which in turn struck
plaintiff. Plaintiff’s alleged injuries included “multiple fractures to his right leg requiring
surgical repair with hardware placement,” as well as injuries to his head, neck, back, right hip,
and right ankle.
Plaintiff initiated this lawsuit against Liberty, Vuich, BPD, Havercamp, and Van Horn,
seeking damages for his injuries. With regard to Liberty, plaintiff’s complaint sought first-party
PIP benefits under the no-fault act, alleging that Liberty had wrongfully withheld payment.
Liberty moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), which the trial
court granted pursuant to MCR 2.116(C)(10), dismissing Liberty from the case. Plaintiff now
appeals, challenging the trial court’s order dismissing Liberty.
II. ANALYSIS
A. PRIORITY AS AN AFFIRMATIVE DEFENSE
Plaintiff first contends that the trial court erred in granting Liberty summary disposition
pursuant to MCR 2.116(C)(10) on the grounds of priority under the no-fault act. Plaintiff argues
that priority under the no-fault act is an affirmative defense that Liberty now is precluded from
asserting because Liberty did not raise it in its first responsive pleading. We disagree.
This Court reviews de novo a trial court’s decision to grant or deny summary disposition.
Dawoud v State Farm Mut Auto Ins Co, 317 Mich App 517, 520; 895 NW2d 188 (2016). When
reviewing an order issued pursuant to MCR 2.116(C)(10), this Court considers all documentary
evidence submitted by the parties in the light most favorable to the nonmoving party. Id.Summary disposition pursuant to MCR 2.116(C)(10) is warranted when there is no genuine issue
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as to any material fact and the moving party is entitled to judgment as a matter of law. Id. In
addition, “[w]hether a particular ground for dismissal is an affirmative defense under MCR
2.111(F) is a question of law that is reviewed de novo on appeal.” Citizens Ins Co of America v
Juno Lighting, Inc, 247 Mich App 236, 241; 635 NW2d 379 (2001).
MCR 2.111(F)(2) requires a party to assert its defenses in its first responsive pleading or
by motion filed before a responsive pleading, 1 and failure to do so results in waiver of the
defense, except for the defenses of failure to state a claim and lack of subject matter jurisdiction.
Similarly, MCR 2.111(F)(3) specifies that affirmative defenses must be asserted in the party’s
first responsive pleading. Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144,
164; 677 NW2d 874 (2003). MCR 2.111(F) provides, in relevant part:
(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of
action has been asserted by complaint, cross-claim, counterclaim, or third-party
claim must assert in a responsive pleading the defenses the party has against the
claim. A defense not asserted in the responsive pleading or by motion as
provided by these rules is waived, except for the defenses of lack of jurisdiction
over the subject matter of the action, and failure to state a claim on which relief
can be granted. . . .
***
(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s
responsive pleading, either as originally filed or as amended in accordance with
MCR 2.118. Under a separate and distinct heading, a party must state the facts
constituting
(a) an affirmative defense, such as contributory negligence; the existence
of an agreement to arbitrate; assumption of risk; payment; release; satisfaction;
discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations;
immunity granted by law; want or failure of consideration; or that an instrument
or transaction is void, voidable, or cannot be recovered on by reason of statute or
nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the
legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading would be likely
to take the adverse party by surprise.
1
Under MCR 2.116(D), the grounds stated in MCR 2.116(C)(5), (6), and (7) must be raised in a
party’s first responsive pleading or in a motion for summary disposition filed before the party’s
first responsive pleading.
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The affirmative defenses enumerated in MCR 2.111(F) are not exclusive, Juno Lighting,
247 Mich App at 241, and are “included by way of illustration only.” Campbell v St John Hosp,
434 Mich 608, 615; 455 NW2d 695 (1990). In this case, the parties do not dispute that Liberty
did not raise priority under the no-fault act as an affirmative defense in its answer to plaintiff’s
complaint. The question, then, is whether priority under the no-fault act is an affirmative defense
that Liberty was required to raise, if at all, in its responsive pleading.
“An affirmative defense presumes liability by definition.” Rasheed v Chrysler Corp, 445
Mich 109, 132; 517 NW2d 19 (1994). Any “defenses which go beyond rebutting the plaintiff’s
prima facie case, other than lack of subject matter jurisdiction and failure to state a claim, should
be stated in the responsive pleading, lest they be deemed to have been waived.” Campbell, 434
Mich at 616. In Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758
(1993), this Court explained:
An affirmative defense is a defense that does not controvert the plaintiff’s
establishing a prima facie case, but that otherwise denies relief to the plaintiff. . . .
In other words, it is a matter that accepts the plaintiff’s allegation as true and even
admits the establishment of the plaintiff’s prima facie case, but that denies that the
plaintiff is entitled to recover on the claim for some reason not disclosed in the
plaintiff’s pleadings.
In Stanke, the plaintiff was seeking payment for damages that the plaintiff had been
awarded against State Farm’s alleged insured arising from an automobile accident. State Farm
initially denied liability on the theory that there was no coverage under its policy because the
alleged insured did not reside with the insured named in the policy. After 17 months of
litigation, State Farm moved for summary disposition and raised a new theory, arguing that there
was no coverage under the policy because the vehicle in question constituted an owned vehicle
not named in the policy. The trial court denied the motion on the ground that State Farm had
waived this argument by not raising it as an affirmative defense in its responsive pleading. On
appeal, this Court reversed, reasoning:
After reviewing the nature of the issue raised by defendant in its motion for
summary disposition, we are not convinced that defendant was endeavoring to
raise a “defense” or an “affirmative defense,” at least not to an extent beyond that
which was raised in the pleadings.
***
In the case at bar, the issue whether defendant’s alleged insured was operating an
owned or non-owned vehicle at the time of the accident does not constitute a
matter of an affirmative defense. That is, the issue does not allow for plaintiff’s
establishing his prima facie case, with defendant coming forth with some other
reason why plaintiff should not prevail on that claim. Rather, it directly
controverts plaintiff’s entitlement to prevail. Thus, it directly denies that plaintiff
can establish a prima facie case by stating that plaintiff will be unable to prove
that there exists a policy of insurance issued by defendant that provides coverage
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for the accident, thereby establishing defendant’s liability to pay the underlying
judgment.
***
Because defendant’s position denies the existence of a prima facie claim, it is not
an affirmative defense. Therefore, it is not subject to the rule that failure to plead
affirmative defenses in the first responsive pleading, or prior to the first
responsive pleading by way of motion, constitutes a waiver of the affirmative
defense. [Stanke, 200 Mich App at 311-312, 315.]
In Stanke, this Court further concluded that the defendant’s assertion of lack of coverage
was also not an ordinary or “negative” defense that must be pleaded under MCR 2.111(F)(2).
This Court explained:
This interpretation is further supported by a careful reading of MCR
2.111(F)(2) and MCR 2.116(D). Under MCR 2.111(F)(2), as discussed above, a
defense is waived if not pleaded or raised by motion. MCR 2.116(D) sets forth
the timetable to raise particular issues by motion. Issues related to jurisdiction
over persons and property as well as service of process must be raised in a
responsive pleading or by motion, whichever comes first. MCR 2.116(D)(1).
Issues related to capacity to sue, other action pending, and affirmative defenses
must be raised not later than the first responsive pleading. MCR 2.116(D)(2).
Finally, issues related to subject matter jurisdiction, failure to state a claim or
valid defense, and the existence of a genuine issue of material fact may be raised
at any time. MCR 2.116(D)(3). The issue defendant seeks to raise falls into this
latter category and, thus, could be raised at any time. [Stanke, 200 Mich App at
319.]
In this case, the trial court determined that priority under the no-fault act is not an
affirmative defense, and therefore Liberty was not required to assert it in its first responsive
pleading. The trial court reasoned:
The issue of whether Liberty Mutual is the insurer of highest priority, however,
directly controverts McAllister’s entitlement to prevail on his claim, and thus does
not constitute an affirmative defense. Accordingly, Liberty Mutual has [not]
waived . . . the defense afforded by the no-fault act’s priority rules.
We agree. Here, Liberty’s argument that plaintiff cannot establish Liberty as the highest
priority insurer under the act is not a defense that denies relief despite the establishment of a
prima facie case; rather Liberty’s priority argument, if successful, identifies that plaintiff failed
to establish a prima facie case against Liberty. In addition, the trial court’s determination is
sound from a prudential standpoint because it would be impractical to require an insurer in a no-
fault action to determine, before filing its answer and without the benefit of discovery, whether
under facts still unknown some other insurer had higher priority. The trial court therefore
correctly concluded that Liberty was not obligated to raise its priority argument as an affirmative
defense and did not waive the argument by failing to do so.
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Concluding that priority under the no-fault act is not an affirmative defense that must be
pleaded under MCR 2.111(F)(3), the question remains whether Liberty’s priority argument is an
ordinary or “negative” defense that must be raised under MCR 2.111(F)(2). Here, as in Stanke, it
appears that Liberty was not endeavoring to raise a “defense” when it moved for summary
disposition. Rather, Liberty was requesting dismissal because plaintiff had failed to set forth a
prima facie case against it. See Stanke, 200 Mich App at 311.
Again, MCR 2.111(F)(2) provides that a defense not raised in the first responsive
pleading is waived, but excepts from this rule the “defense” of failure to state a claim. Similarly,
MCR 2.116(D)(4) provides that the grounds of subject matter jurisdiction, failure to state a claim
or valid defense, and the existence of a genuine issue of material fact may be raised at any time.
See Stanke, 200 Mich App at 319. In this case, Liberty moved for summary disposition under
MCR 2.116(C)(8) and (10), on the ground that plaintiff had failed to establish a prima facie case
against Liberty as the highest priority insurer under the no-fault act. These arguments were not
subject to waiver and could be raised at any time. Thus, even if priority under the no-fault act is
characterized as an ordinary or negative defense, MCR 2.116(D) permits those arguments to be
raised at any time. Stanke, 200 Mich App at 319.
Plaintiff also argues that the trial court erred by permitting Liberty to raise the priority
argument late in the litigation of this case, thereby depriving plaintiff of notice of this defense.
“The primary function of a pleading in Michigan is to give notice of the nature of the claim or
defense sufficient to permit the opposing party to take a responsive position.” Stanke, 200 Mich
App at 317. In this case, from the inception of the lawsuit 2 plaintiff had the burden of proving
statutory entitlement to the PIP benefits sought; that is, plaintiff knew that he did not have a
policy of insurance with Liberty and that he would be entitled to PIP benefits only if he could
prove entitlement under the no-fault act. This burden of proof was unaffected by Liberty’s
failure to state in its responsive pleading its position that plaintiff could not prove entitlement to
benefits under the act. And although Liberty’s responsive pleading was essentially a blanket
denial of the complaint, plaintiff was at minimum advised by Liberty’s answer that Liberty
denied liability under the no-fault act. Liberty’s motion for summary disposition therefore
imposed no greater burden upon plaintiff than what existed from the inception of the lawsuit,
which was to establish a prima facie case under the no-fault priority statutes.
B. PLAINTIFF WAS NOT AN OCCUPANT OF THE VEHICLE
Plaintiff next contends that the trial court erred in granting Liberty’s motion for summary
disposition because plaintiff was an occupant of Dover’s pickup truck at the time he was injured,
and therefore entitled to PIP benefits from Liberty, Dover’s insurer, under MCL 500.3114(4).
We disagree.
2
Indeed, when there is an accident touching upon three vehicles, each of which, presumably, is
insured (as required by law), it is difficult to understand how it could be much of a surprise to
anyone that the question which insurer has priority might arise.
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The purpose of Michigan’s no-fault act, MCL 500.3101 et seq., is “to ensure the
compensation of persons injured in automobile accidents.” Allstate Ins Co v State Farm Mut
Auto Ins Co, 321 Mich App 543, 552; 909 NW2d 495 (2017) (citation omitted). “The priority
statutes, MCL 500.3114 and MCL 500.3115, define against whom an individual may make a
claim for benefits.” Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 215;
895 NW2d 490 (2017). Under these priority statutes, a person injured in a motor vehicle
accident generally is required to seek compensation from his or her own no-fault insurer,
regardless of whether his or her own vehicle was involved in the accident. MCL 500.3114(1);
see Corwin v DaimlerChrysler Ins Co, 296 Mich App 242, 262; 819 NW2d 68 (2012). The
priority of insurers under the no-fault act is a question of statutory interpretation that this Court
reviews de novo. See Titan Ins Co v American Country Ins Co, 312 Mich App 291, 296; 876
NW2d 853 (2015).
MCL 500.3114 provides, in relevant part:
(1) Except as provided in subsections (2), (3), and (5), a personal protection
insurance policy described in section 3101(1) [MCL 500.3101] applies to
accidental bodily injury to the person named in the policy, the person’s spouse,
and a relative of either domiciled in the same household, if the injury arises from
a motor vehicle accident. . . .
***
(4) Except as provided in subsections (1) to (3), a person suffering accidental
bodily injury arising from a motor vehicle accident while an occupant of a motor
vehicle shall claim personal protection insurance benefits from insurers in the
following order of priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied. [MCL 500.3114(1), (4).]
Thus, PIP benefits under the no-fault act are recoverable under MCL 500.3114(1) by “the
person named in the policy, the person’s spouse, and a relative of either domiciled in the same
household, if the injury arises from a motor vehicle accident.” Lewis v Farmers Ins Exch, 315
Mich App 202, 210; 888 NW2d 916 (2016) (citation omitted). In this case, plaintiff is not a
person named in the Liberty policy, nor is he a spouse of a person named in the policy (Dover),
and although domiciled with Dover, he is not a relative of Dover. Dover’s policy with Liberty
therefore does not provide coverage to plaintiff. See Shelton v Auto-Owners Ins Co, 318 Mich
App 648, 654; 899 NW2d 744 (2017).
Although not directly entitled to coverage under Dover’s policy with Liberty, plaintiff
sought PIP benefits by operation of MCL 500.3114(4), which permits an injured person to claim
personal protection insurance benefits from an insurer if the person (1) suffered accidental bodily
injury arising from a motor vehicle accident, and (2) the injury occurred while the person was an
occupant of a motor vehicle. If plaintiff meets these criteria, he may claim PIP benefits
beginning with “the insurer of the owner or registrant of the vehicle occupied.” MCL
500.3114(4)(a).
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Here, plaintiff alleges that he was an occupant of Dover’s pickup truck at the time he was
injured. The no-fault act does not define “occupant.” Rednour v Hastings Mut Ins Co, 468 Mich
241, 244; 661 NW2d 562 (2003). Our Supreme Court, however, has determined that “the
ordinary definition of ‘occupant’ ” should be applied in no-fault cases. Id. at 255. In Rednour,
our Supreme Court determined that “[a] person must be physically inside a vehicle to be an
‘occupant’ of it under the no-fault act.”3 Rednour, 468 Mich at 249, citing Rohlman v Hawkeye-
Security Ins Co, 442 Mich 520, 523; 502 NW2d 310 (1993). In Rednour, our Supreme Court
held that the plaintiff in that case was not occupying the vehicle in question when he was
“outside the vehicle and approximately six inches from it when the other automobile struck
him.” Rednour, 468 Mich at 242 (interpreting the term “occupant” as used in §3111 of the no-
fault act).
In addition, this Court has held that a person is not an occupant of a vehicle under MCL
500.3114 when he is standing outside the vehicle, see Rosner v Michigan Mut Ins Co, 189 Mich
App 229, 233; 471 NW2d 923 (1991), or pumping gas into it. Auto Club Ins Ass’n v Michigan
Mut Ins Co, 197 Mich App 275, 278; 494 NW2d 822 (1993). This Court has also determined
that a person was not an occupant under MCL 500.3114(3) when the person was standing beside
a vehicle, bending over to inspect the engine, when he was struck by another vehicle. Hackley v
State Farm Mut Auto Ins Co, 147 Mich App 115, 122-123; 383 NW2d 108 (1986).
In this case, plaintiff testified that at the time he was injured he was not in the pickup but
instead was outside the truck, slightly bent over, adjusting wires that were protruding from the
front of the truck. Because plaintiff was not physically inside the pickup truck, plaintiff was not
an occupant of Dover’s pickup truck under the no-fault act and cannot seek benefits under MCL
500.3114(4). See Rednour, 468 Mich at 249.
C. THE PICKUP WAS NOT A VEHICLE INVOLVED IN THE ACCIDENT
Plaintiff alternatively argues that even if he were not an occupant of the vehicle, Liberty
remains liable for PIP benefits under MCL 500.3115(1)(a) as an insurer of the owner of a vehicle
involved in the accident. Again, we disagree.
When a claimant is not an occupant of a vehicle, MCL 500.3115 determines the priority
of the insurers for purposes of PIP benefits, and the claimant may claim PIP benefits from
“[i]nsurers of owners or registrants of motor vehicles involved in the accident.” MCL
500.3115(1)(a); Allstate Ins Co, 321 Mich App at 552. That statutory section provides:
3
Addressing the argument that a person may be occupying a vehicle if they are “upon” the
vehicle, the Court in Rednour stated that “[p]hysical contact by itself does not, however,
establish that a person is ‘upon’ a vehicle such that the person is ‘occupying’ the vehicle,”
Rednour, 468 Mich at 249-250, suggesting that it is still possible in given circumstances to
interpret being “upon” a vehicle as occupying the vehicle.
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(1) Except as provided in subsection (1) or section 3114 [MCL 500.3114],
a person suffering accidental bodily injury while not an occupant of a motor
vehicle shall claim personal protection insurance benefits from insurers in the
following order of priority:
(a) Insurers of owners or registrants of motor vehicles involved in the
accident.
(b) Insurers of operators of motor vehicles involved in the accident.
[MCL 500.3115(1).]
In this case, Liberty insured Dover and thus could be liable under MCL 500.3115 if
Dover was the owner, registrant, or operator of a motor vehicle involved in the accident.
Plaintiff argues that because Dover’s pickup was the vehicle that struck him, it was a motor
vehicle involved in the accident. The parties do not dispute, however, that Dover’s pickup was
parked at the time plaintiff was injured.
Our Supreme Court has held that a parked vehicle is not “involved in the accident” unless
one of the exceptions of MCL 500.3106 applies. Heard v State Farm Mut Auto Ins Co, 414
Mich 139, 144; 324 NW2d 1 (1982).4 That is, MCL 500.3105(1) provides that “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, subject to the provision of this
chapter.” A no-fault insurer generally is not obligated to pay first-party PIP benefits for injuries
involving a parked vehicle, however, because injuries involving a parked vehicle usually do not
involve use of the vehicle as a motor vehicle. See Stewart v Michigan, 471 Mich 692, 698; 692
NW2d 376 (2004). In that regard, MCL 500.3106(1) provides:
(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.
4
This Court in Shinn v Michigan Assigned Claims Facility, 314 Mich App 765, 769-771; 887
NW2d 635 (2016), recently noted that the statutes relevant in Heard have since been amended.
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In Stewart, our Supreme Court further explained the public policy underlying the parked
vehicle exclusion:
Injuries involving parked vehicles do not normally involve the vehicle as a motor
vehicle. Injuries involving parked vehicles typically involve the vehicle in much
the same way as any other stationary object (such as a tree, sign post or boulder)
would be involved. There is nothing about a parked vehicle as a motor vehicle
that would bear on the accident.
The stated exceptions to the parking exclusion clarify and reinforce this
construction of the exclusion. Each exception pertains to injuries related to the
character of a parked vehicle as a motor vehicle – characteristics which make it
unlike other stationary roadside objects that can be involved in vehicle accidents.
[Stewart, 471 Mich at 698, quoting Miller v Auto-Owners Ins Co, 411 Mich 633,
639-641; 309 NW2d 544 (1981), abrogation regarding the exception in MCL
500.3106(1)(b) recognized by Lefevers v State Farm Mut Auto Ins Co, 493 Mich
960; 828 NW2d 678 (2013).]
In sum, injuries involving a parked vehicle do not normally involve the use of the vehicle
as a motor vehicle, Stewart, 471 Mich at 698, and a parked vehicle that is not in use as a motor
vehicle cannot be deemed “involved in the accident.” See Heard, 414 Mich at 144.
In this case, the trial court concluded:
McAllister asserts that minimal physical contact with a vehicle at the time of an
accident is sufficient to conclude that a vehicle is involved in an accident. But the
cases McAllister cites for this proposition are factually distinguishable from the
case at bar because they do not involve parked vehicles. See, e.g., Auto Club Ins
Ass’n v State Auto Mut Ins Co, 258 Mich App 328; 671 NW2d 132 (2003)
(genuine issue of material fact existed as to whether vehicle at a standstill waiting
for traffic to clear in a construction zone was involved in the accident). In the
instant case, McAllister’s vehicle was not merely stopped in a lane of traffic, but
was properly parked in a parking lot. . . .
Viewing the evidence in the light most favorable to McAllister, reasonable
minds could conclude only that Dover’s parked vehicle was not involved in the
accident. Thus, McAllister has failed to establish any material factual issue
demonstrating that Liberty Mutual is the highest priority insurer under MCL
500.3115(1).
Again, we agree. None of the statutory exceptions of MCL 500.3106(1) applies. A
parked vehicle typically is not “involved in an accident” because “[i]njuries involving parked
vehicles do not normally involve the vehicle as a motor vehicle.” Stewart, 471 Mich at 698. In
this case, the accident involved two other vehicles. One of those vehicles then hit a stationary
object that just happened to be Dover’s parked pickup truck, thereby injuring plaintiff. Plaintiff
testified that he parked Dover’s pickup in a parking spot in the parking lot, turned off the
ignition, and got out of the truck. There was no allegation that the pickup was parked in such a
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way as to cause unreasonable risk of plaintiff’s injuries. There was also no evidence that
plaintiff’s injuries were 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. Plaintiff also did not allege any
evidence that his injuries were sustained while occupying, entering into, or alighting from the
pickup. Rather, plaintiff testified that while he was standing in front of the parked pickup
adjusting wires that protruded from the front of the truck, the truck driven by Vuich hit the rear
passenger side of the parked pickup, causing it to spin around and hit plaintiff. The pickup
therefore acted in much the same way any stationary object would and there was nothing about
the fact that the object was a pickup truck that bears on the accident. Because none of the
exceptions of MCL 500.3106 applies, plaintiff’s injuries did not arise out of the ownership,
operation, maintenance, or use of a parked vehicle as a motor vehicle, and therefore the parked
pickup truck was not “involved in the accident” within the meaning of MCL 500.3115(1).
Heard, 414 Mich at 144. The trial court therefore correctly concluded that plaintiff was not
entitled to PIP benefits from Liberty and that Liberty was entitled to summary disposition.
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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