Home-Owners Insurance Company v. Great Northern Insurance Company ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
HOME-OWNERS INSURANCE COMPANY, UNPUBLISHED
June 26, 2018
Plaintiff-Appellee,
v No. 339158
Ingham Circuit Court
GREAT NORTHERN INSURANCE COMPANY, LC No. 16-000712-CB
Defendant-Appellant.
Before: CAMERON, P.J., and METER and BORRELLO, JJ.
PER CURIAM.
In this dispute between insurance companies over the order of priority for paying
personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq.,
defendant, Great Northern Insurance Company, appeals as of right the trial court’s order granting
summary disposition in favor of plaintiff, Home-Owners Insurance Company, pursuant to MCR
2.116(C)(10); declaring defendant to be the higher priority insurer responsible for paying the PIP
benefits at issue; and entering a judgment in favor of plaintiff for $50,625.25. For the reasons set
forth in this opinion, we reverse the order of the trial court and remand this matter for further
proceedings consistent with this opinion.
I. BACKGROUND
This case arises out of an accident involving a single vehicle that occurred on May 28,
2016. Matthew Theisen was at home that day when Susan Tyson arrived. At that time, Theisen
and Tyson were married, and they had an automobile insurance policy with plaintiff covering
their personal vehicles. Tyson arrived in a van that was owned by her employer, Advanced
Inventory Solutions, and that was insured by defendant. The home was located in a trailer park.
Theisen’s truck was parked directly across the street from his home in an empty space where no
trailer was parked. Tyson parked her work van between Theisen’s home and his truck,
apparently in the road. The van was parked perpendicular to the back end of the truck.
Theisen testified during his deposition that he and Tyson got into an argument when she
arrived. At some point, Tyson took the registration and proof of insurance out of Theisen’s
truck, and Theisen followed Tyson back to her work van. While the van door was still open,
Theisen got between the door and the driver’s seat, where Tyson was sitting, and asked for his
paperwork back. Tyson put the paperwork on the center console of the van, and Theisen reached
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over her to grab the paperwork from the center console. Theisen explained what happened next
during the following exchange:
[Theisen]: And then as I went to go reach for my paperwork, she threw it
into drive. The next thing I know I got caught up into something. I was dragged
it felt like forever. I don’t know what I was caught on. I could not see because I
was too busy on the ground, dragging.
[Plaintiff’s Counsel]: When she put the vehicle into gear, did you grab
onto the door at all to stabilize yourself? Like the frame of the door, do you know
if you were on that at all to try to keep from falling?
[Theisen]: I could have been, but I’m not a hundred percent sure what I
grabbed. I don’t even think I grabbed anything. I’m not a hundred percent sure.
It all happened so fast.
Theisen also testified that he remembered grabbing something in the car, that “[i]t was
either the frame or the seat belt,” and that he did not know what he was holding. Theisen further
explained, “I was on—it felt like I was on the vehicle, like on the side of the vehicle” and that the
vehicle was carrying him. One foot was dragging and one foot was up in the air. He thought
that he was dragged for “maybe 5 to 8 feet.” Theisen was holding onto the van while it was
moving in order to avoid falling. Theisen testified that he did not intend to get into the vehicle,
that he was not inside the vehicle, and that he was not standing on any part of the vehicle at the
time. According to Theisen, he was eventually “released” and then the back wheel of the van
rolled over him. Theisen sustained injuries.
Tyson, in her deposition, described Theisen’s initial approach to the van as follows:
As soon as I had sat down in my vehicle, as I was putting it in drive I was
actually closing my door. And that’s when he grabbed ahold of the door and
ripped it open as I had just started to move. He put his one hand—left hand on
my—the door, where the door handle is on the van, and he put his right hand on
my arm. And I yelled at him and I told him to let go of me and he said no.
. . . And I says, “Matt, you need to let go of me.” And he said, “No.” And
then he took his hand off of the door and grabbed ahold of my steering wheel.
And by this time I had already started moving.
Tyson further explained that Theisen used his right hand to grab her left hand or arm,
which was resting on her left leg. Tyson testified that Theisen was outside the vehicle at this
point, standing next to the van. The door was open. Theisen moved his left hand from the
outside door handle to the steering wheel. Tyson also testified that Theisen grabbed her left arm
with both of his hands and never attempted to reach over her to get the paperwork from the van.
According to Tyson, as the van started moving forward, Theisen was walking next to the van.
Tyson admitted that she could not see Theisen’s feet, but she assumed that he was walking
because he was not “dipped down.” She did not think that Theisen was ever standing on the
running board of the vehicle. Tyson explained that Theisen was at eye level with her during the
incident and that “if you stand next to the van that’s where he would be at, because the running
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board is a good foot and a half off the ground.” Tyson did not know how Theisen fell off, and
she did not realize that he had fallen until she felt the back of the van run over him.
Kyle Radics, a coworker and friend of Tyson’s, testified during his deposition that he was
a passenger in Tyson’s work van on the day of the accident. Radics was in the front passenger
seat of the van, and he was still inside the van when Tyson got inside after taking the registration
and insurance from Theisen’s truck. According to Radics, Tyson was closing the driver side
door to the van and the van was already in drive when Theisen swung the door open and tried to
reach over Tyson. Theisen never reached through the driver side window. Radics testified that
he saw Theisen’s hand on Tyson’s arm and that Theisen never reached past Tyson’s left arm.
Radics further testified that Theisen was “hanging out of” the van, that he did not know if
Theisen was actually holding any part of the van, and that Tyson’s arm was the only thing
Theisen was holding. Radics thought that Theisen was walking alongside the van at first, and he
did not think that Theisen could have been dragged by the vehicle once he fell to the ground.
According to Radics, the van never went in reverse during the incident. Although Radics’
statement in the police report indicated that Theisen let go of Tyson after being dragged and
before the van ran over him, Radics maintained in his deposition that he never indicated that
Theisen was dragged by the van.
Larry Aldrich, a neighbor of Theisen’s, testified during his deposition that he was driving
home that day when he saw Theisen and Tyson outside the van arguing. As Aldrich was backing
into his own driveway, he saw Theisen reaching into the van through the driver side window
with his feet on the ground. Aldrich was approximately 50 yards away. Aldrich described the
accident as follows:
And then I saw the van go into reverse and pull out into the road. He fell off of
the van. She put it in drive to take off and I think that’s when she ran over him.
According to Aldrich, Theisen was hanging onto the van and being carried by it as the van
backed up. Aldrich did not know what Theisen was holding. Aldrich explained that the incident
“happened really quick” and that he looked away at one point. According to Aldrich, the door to
the van was closed while Theisen was reaching his arm through the window. Aldrich testified
that his statement in the police report—that Theisen was “dragged alongside the van” and was
run over after he fell—was accurate. Aldrich did not know if Theisen’s feet were on the ground
or off the ground while he was being dragged. However, Aldrich also testified that Theisen was
walking alongside the van for some amount of time and was not being dragged by the van.
Additionally, Aldrich testified that
[h]is arm was in the window. I don’t think he was actually hanging on the vehicle
until it went into motion and he lost his footing.
On September 16, 2016, plaintiff initiated this lawsuit seeking reimbursement from
defendant for PIP benefits that plaintiff paid to Theisen, as well as a declaratory judgment that
defendant was the priority insurer and was required to pay future PIP benefits. Plaintiff alleged
that because Theisen was Tyson’s spouse and was an occupant of the van that was owned by
Tyson’s employer and insured by defendant, MCL 500.3114(3) provided that defendant was the
priority insurer obligated to pay Theisen’s PIP benefits.
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Plaintiff subsequently moved for summary disposition pursuant to MCR 2.116(C)(10),
arguing that there was no dispute that Theisen was in or upon the van while it was moving and
that he was therefore an occupant of the vehicle that was owned by his wife’s employer and
insured by defendant. Plaintiff relied on dictionary definitions, arguing that “upon” meant “on”
and that “on” was a word used to indicate “physical contact with another object.”
In response, defendant argued that plaintiff was the higher priority insurer because
Theisen was not an occupant of the van and MCL 500.3114(3) therefore did not apply.
Defendant argued that plaintiff was attempting to improperly expand the applicable definition of
“occupant” by equating “occupying” with “simply touching a vehicle.” Defendant further
argued that Theisen was not an occupant because merely having physical contact with the
vehicle did not mean he was “upon” the vehicle and merely having his arm in the vehicle did not
mean that Theisen was actually “inside” the vehicle.
A hearing was held on the motion, and the trial court announced its ruling from the
bench. The trial court stated that “part of [Theisen’s] body was inside the vehicle,” that “[h]is
arm was inside the vehicle and there was some physical contact between him and the vehicle, be
it the steering wheel or the door or the window area of the vehicle.” The trial court concluded
that these facts, along with the facts that the vehicle was in motion at some point and was
“actually transporting” Theisen, meant that there was “more than mere contact.” The trial court
explained this point further:
The vehicle being in motion supports that first of all there’s obviously
contact with the vehicle and second, that the vehicle’s not just in motion but it’s
actually transporting Mr. Theisen whether he’s being dragged or whether he’s
walking along the veh--, alongside the vehicle, he is voluntarily using the vehicle
to transport him because he’s hanging on to something inside and he’s moving
along with the vehicle.
The trial court concluded in announcing its ruling as follows:
Because, he’s hanging onto the vehicle, which is what initiated this and
what is occurring throughout. There’s no indication that somehow he’s attached
to the vehicle in a way that he can’t extricate himself. He’s voluntarily attached
himself onto the vehicle with part of his body into it hanging onto it and moving
his feet as the vehicle moves because the vehicle is forcing him to do such,
forcing him to move his feet, not forcing him to stay attached to the vehicle.
So, I would say that Mr. Theisen is really in a similar situation to the
person in Farm Bureau. Actually, an almost identical situation to the person in
Farm Bureau except that he wasn’t on top of the vehicle so he wasn’t in contact
with the hood.1 He was in contact with the side of the vehicle. But if ‘upon’
1
In Farm Bureau Mut Ins Co v MIC Gen Ins Corp, 193 Mich. App. 317, 319, 320, 324-325; 483
NW2d 466 (1992), discussed in more detail below, this Court held that a claimant who was
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includes ‘on’ and ‘on’ means physical contact with something, then Mr. Theisen
was on the vehicle when he was in contact with the side of it and he proceeded to
move with part of his body inside of it and allowed the vehicle to move him in
that situation.
So again, there’s more than mere contact. There is entry of part of his
body into the vehicle and there is the vehicle moving and actually transporting
Mr. Theisen along while he’s in this situation. And for those reasons, I think it
satisfies the definition of ‘occupying’ both in the No-Fault priority provision and
in the policies of Homeowners and Great Northern’s. And therefore, I am going
to grant the plaintiff’s Motion for Summary Disposition and for Declaratory
Judgment that defendant Great Northern Insurance Company has priority under
the No-Fault Act.
The trial court entered an order granting plaintiff’s motion for summary disposition for
the reasons stated on the record and declaring that defendant was the higher priority insurer
responsible for paying PIP benefits on behalf of Theisen pursuant to MCL 500.3114(3). This
appeal ensued.
II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision on a summary disposition motion to
determine if the moving party was entitled to judgment as a matter of law.” Bergman v
Cotanche, 319 Mich. App. 10, 15; 899 NW2d 754 (2017). “[T]he Court reviews the entire record
to determine whether defendant was entitled to summary disposition.” Maiden v Rozwood, 461
Mich. 109, 118; 597 NW2d 817 (1999).
“A motion for summary disposition under MCR 2.116(C)(10) requires the reviewing
court to consider the pleadings, admissions, and other evidence submitted by the parties in the
light most favorable to the nonmoving party.” Rambin v Allstate Ins Co, 495 Mich. 316, 325; 852
NW2d 34 (2014) (quotation marks and citation omitted). “Summary disposition is appropriate
under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich. 177, 183;
665 NW2d 468 (2003). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” Id. “[A] court may not weigh the evidence before it or make findings of
fact; if the evidence before it is conflicting, summary disposition is improper.” Lysogorski v
Bridgeport Charter Twp, 256 Mich. App. 297, 299; 662 NW2d 108 (2003) (quotation marks and
citation omitted). “Courts are liberal in finding a factual dispute sufficient to withstand summary
disposition.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich. App. 466, 476; 776 NW2d
398 (2009). Additionally, “[t]he trial court appropriately grants summary disposition to the
opposing party under MCR 2.116(I)(2) when it appears to the court that the opposing party,
holding onto the hood of a car while it drove for several blocks before striking another vehicle
was an “occupant” of the car for purposes of the priority statutes in the no-fault act.
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rather than the moving party, is entitled to judgment as a matter of law.” Rossow v Brentwood
Farms Dev, Inc, 251 Mich. App. 652, 658; 651 NW2d 458 (2002).
“Questions of law, including statutory interpretation, are reviewed de novo on appeal.”
Gorman v American Honda Motor Co, Inc, 302 Mich. App. 113, 116; 839 NW2d 223 (2013).
III. ANALYSIS
The central dispute between the parties in this case concerns which insurer is ultimately
liable for paying Theisen’s PIP benefits under the no-fault act’s priority rules, set forth in MCL
500.3114 and MCL 500.3115. Specifically, the issue concerns whether Theisen was, for
purposes of MCL 500.3114(3), an “occupant” of the van that was involved in the accident and
insured by defendant.
“[G]enerally an injured person is required to seek compensation from his own no-fault
insurer, regardless of whether that person’s insured vehicle is involved in the accident.” Farmers
Ins Exch v AAA of Michigan, 256 Mich. App. 691, 695; 671 NW2d 89 (2003). This general rule is
found in MCL 500.3114(1), which is the “default rule for priority” under the no-fault act,
Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich. 191, 215; 895 NW2d 490
(2017). The statutory provision provides in pertinent part that “[e]xcept as provided in
subsections (2), (3), and (5),[2] a personal protection insurance policy . . . 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.” MCL
500.3114(1).
Pursuant to MCL 500.3115(1), the general rule of § 3114(1) is applicable if an individual
is not an occupant of a motor vehicle:
(1) Except as provided in subsection (1) of section 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) (emphasis added).]
Our Supreme Court has explained that pursuant to the first clause of § 3115(1), “§ 3114 operates
to identify the primarily applicable coverage” when an injured person is determined to have not
been an occupant of a motor vehicle when the injury occurred. Royal Globe Ins Cos v
Frankenmuth Mut Ins Co, 419 Mich. 565, 569; 357 NW2d 652 (1984).
2
Subsections (2) and (5) are not at issue in this case. Subsection (3) is discussed below.
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Accordingly, plaintiff, as Theisen’s insurer, would be the higher priority insurer if
Theisen was not an occupant of the van, which was the only motor vehicle involved in the
accident that caused his injuries. MCL 500.3114(1); MCL 500.3115(1). “[A]n injured person is
generally required to seek compensation from his own no-fault insurer even where that person’s
insured vehicle is not involved in the accident.” Farmers Ins Exch, 256 Mich. App. at 696
(quotation marks and citation omitted); see also Lee v Detroit Auto Inter-Ins Exch, 412 Mich.
505, 509; 315 NW2d 413 (1982) (“[I]t is the policy of the no-fault act that persons, not motor
vehicles, are insured against loss.”).
However, this dispute concerns the provision in MCL 500.3114(3), which is an exception
to the general rule contained in § 3114(1). Section 3114(3) provides as follows:
An employee, his or her spouse, or a relative of either domiciled in the
same household, who suffers accidental bodily injury while an occupant of a
motor vehicle owned or registered by the employer, shall receive personal
protection insurance benefits to which the employee is entitled from the insurer of
the furnished vehicle. [Emphasis added.]
In this case, there is no dispute that the van driven by Tyson was owned by her employer,
that defendant insured the van, or that Theisen and Tyson were married at the time of the
accident. Thus, resolution of this case depends on whether Theisen was actually “an occupant”
of the van for purposes of § 3114(3). Notably, in making this determination for purposes of
discerning the order of priority under MCL 500.3114, it is the statute that controls rather than the
language of the parties’ insurance policies. As our Supreme Court has explained,
PIP benefits are mandated by statute under the no-fault act, MCL 500.3105, and,
therefore, the statute is the “rule book” for deciding the issues involved in
questions regarding awarding those benefits. On the other hand, the insurance
policy itself, which is the contract between the insurer and the insured, controls
the interpretation of its own provisions providing benefits not required by statute.
[Rohlman v Hawkeye-Security Ins Co, 442 Mich. 520, 524-525; 502 NW2d 310
(1993) (Rohlman I).]
Therefore, because the question before this Court in the instant case involves how to apply the
priority statutes to award PIP benefits that Theisen already received, it is the statute that provides
the “ ‘rule book’ ” for analysis. Id. The term “occupant” is not defined in § 3114, nor is it
defined elsewhere in the no-fault act.
In Royal Globe, 419 Mich. at 575, our Supreme Court held that the word “occupant” in
MCL 500.3114(3) was to be given “a literal construction,” by assigning the word “its primary
and generally understood meaning.” Like the instant case, Royal Globe involved a priority
dispute between insurance companies over which insurer was responsible for paying no-fault
benefits where an insured’s spouse was injured in a single motor vehicle accident involving a
vehicle owned by the insured’s employer. Id. at 567-568. In Royal Globe, Mr. and Mrs. Karam
arrived at home in a vehicle owned by Mr. Karam’s employer and insured by the plaintiff
insurance company. Id. Mr. Karam also owned a vehicle that was insured by the defendant
insurance company. Id. at 568. After Mr. Karam parked the employer-owned vehicle, Mrs.
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Karam got out of the vehicle and walked to the back door, which was inside the garage. Id. As
she was looking for her keys, Mr. Karam attempted to back the vehicle into the garage, but he
lost control and accidentally struck Mrs. Karam. Id.
Accordingly, the narrow issue before the Royal Globe Court became whether Mrs. Karam
was an “occupant” of the employer-owned motor vehicle at the time of the injury for purposes of
MCL 500.3114(3). Id. at 567, 568-569. The Court concluded that the defendant insurer, who
insured Mr. Karam’s private vehicle, was the higher priority insurer under the no-fault act’s
priority statutes because Mrs. Karam was not an occupant of the employer-owned vehicle when
she was injured, reasoning that she had left the vehicle and walked approximately 60 feet to the
rear of the garage when she was hit by the vehicle. Id. at 576. The Royal Globe Court did not
explicitly define the “primary and generally understood meaning” of the term “occupant,” noting
that the case before it did not present any difficulty in determining whether Mrs. Karam was an
occupant of the vehicle. Id. at 575-576. However, the Court did include the following
explanation:
Whether in another case, on other facts, it will be appropriate to construe
the meaning of the statutory term “occupant” as used in § 3114 and § 3115 as
including persons within and upon a motor vehicle as well as those entering into
and alighting from it remains to be seen. It is certainly unnecessary, and indeed
inappropriate for us to do so on the facts before us. [Id. at 576.]
In Farm Bureau Mut Ins Co v MIC Gen Ins Corp, 193 Mich. App. 317, 324; 483 NW2d
466 (1992), another priority dispute case, this Court held that the primary and generally
understood meaning of the statutory term “occupant” in the no-fault act was best defined as “ ‘in
or upon.’ ” In reaching this conclusion, the Farm Bureau Court relied on Royal Globe and
reasoned that “[a]lthough the Supreme Court left unresolved in Royal Globe the issue whether
persons ‘entering into or alighting from’ a vehicle are ‘occupants,’ the Court appeared to assume
without difficulty that persons ‘in or upon’ a vehicle are ‘occupants’ as the term is used in the
no-fault act.” Farm Bureau, 193 Mich. App. at 324. The claimant of PIP benefits in Farm
Bureau was injured after he jumped onto the hood of a car and held on as the car traveled for
several blocks before striking another vehicle. Id. at 319. The claimant was thrown from the
hood of the car and was injured. Id. This Court concluded that the claimant was an “occupant”
of the car for purposes of the priority statutes in the no-fault act “because he was ‘upon’ the
vehicle while he was being transported on its hood for several blocks.” Id. at 320, 324-325.
In Rednour v Hastings Mut Ins Co, 468 Mich. 241, 249; 661 NW2d 562 (2003), our
Supreme Court held that “[a] person must be physically inside a vehicle to be an ‘occupant’ of it
under the no-fault act.”3 The Rednour Court concluded that the injured party, who was outside
3
The Rednour Court was discussing MCL 500.3111, which is the provision applicable to the
availability of PIP benefits for injuries suffered in an accident occurring outside Michigan.
However, the pertinent language of MCL 500.3111 is almost identical to the language of MCL
500.3114(3) that is at issue in the instant case. Section 3111 provides in pertinent part that
“[p]ersonal protection insurance benefits are payable for accidental bodily injury suffered in an
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the vehicle he had been driving and six inches away from it when another vehicle struck him,
was not an “ ‘occupant’ ” for purposes of § 3111 because he was not physically inside the
vehicle during the accident. Id. at 242, 249. Furthermore, the Rednour Court also concluded
that the injured party was not “ ‘upon’ ” the vehicle when he was pinned against it after being
struck by the second vehicle such that he was “ ‘occupying’ ” the original vehicle for purposes of
coverage under the insurance policy because “[p]hysical contact by itself does not . . . establish
that a person is ‘upon’ a vehicle such that the person is ‘occupying’ the vehicle,” and that it was
clear that a person “must be on or up and on a vehicle in order to be ‘upon’ it.” Id. at 249-250.4
In reaching this conclusion, our Supreme Court “reject[ed] dicta in [Rohlman v Hawkeye-
Security Ins Co (On Remand), 207 Mich. App. 344; 526 NW2d 183 (1994) (Rohlman II)] that
suggests physical contact alone may be sufficient to show that the person was ‘upon’ the vehicle
so as to be ‘occupying’ the vehicle.” Rednour, 468 Mich. at 250.5 Additionally, although
plaintiff claims on appeal in the instant case that the Rednour Court stated that “on” is the
accident occurring out of this state, if the accident occurs within the United States, its territories
and possessions or in Canada, and the person whose injury is the basis of the claim was at the
time of the accident . . . an occupant of a vehicle involved in the accident whose owner or
registrant was insured under a personal protection insurance policy or has provided security
approved by the secretary of state . . . .”
4
We note that the issue in Rednour involved coverage and whether the injured party was entitled
to PIP benefits at all when he was injured while driving a friend’s car in Ohio. Rednour, 468
Mich. at 242-243. Thus, the Rednour Court addressed both the meaning of “occupant” under
§ 3111 of the no-fault act and the definition of “occupying” in the applicable insurance policy.
Rednour, 468 Mich. at 244-245, 249-251. However, we conclude that this discussion in Rednour
is nonetheless informative to the analysis in the instant case because it involved construing the
same word—“upon”—that has been attached to the definition of the statutory term “occupant.”
Although it is the statutory language that is at issue in the instant case, the policy definition in
Rednour was similar to, although slightly broader than, the way Michigan appellate courts have
interpreted the statutory term “occupant”; the policy definition in Rednour of “ ‘occupying’ ”
was “ ‘in, upon, getting in, on, out or off.’ ” Id. at 245.
5
In Rohlman II, this Court noted dictionary definitions that “use[d] the word ‘upon’
interchangeably with ‘on.’ ” Rohlman II, 207 Mich. App. at 356. The Rohlman II Court also
stated as follows:
[W]e are not persuaded that the term “on” or “upon” requires that an object or
person be positioned so that the object or person is totally and completely in
contact with or supported by the underlying object or person. For example, we
might say that the child was “on” his scooter, understanding that one foot was on
the scooter while the other foot was pushing on the ground, or that a secretary is
working “on” a computer, or is “on” the telephone, although the secretary’s body
is not totally in contact with either instrument. We conclude, then, that the term
“upon” in the definition of “occupying” means, at a minimum, some physical
contact with the covered auto. [Id. at 357.]
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equivalent of “upon,” the language cited by plaintiff is merely part of the Rednour Court’s
recitation of the Rohlman II Court’s reasoning. Rednour, 468 Mich. at 248.
In a footnote, the Rednour majority responded to a point made by the dissent, and this
response is especially pertinent to the instant appeal in light of the broad definition of “occupant”
advanced by plaintiff and adopted by the trial court below:
The dissent, citing plaintiff’s assertion that he was injured when he was
pinned between the two cars, concludes that plaintiff has alleged sufficient facts
to enable a jury to conclude that he was “on” or “upon” the insured vehicle when
the accident occurred. However, this analysis fails to take account that “on” or
“upon” must be interpreted in the context of the word that they are defining:
“occupying.” The dissent ignores the definitional word itself because it cannot be
said that plaintiff here was “occupying” the vehicle in question, however broadly
“on” and “upon” are defined. Further, the arbitrariness of the dissent’s
interpretation must be noted. Under the dissent’s reasoning, if there are two
persons who are struck by a vehicle while in the vicinity of the insured vehicle,
and if one is thrown into the insured vehicle while the other is thrown into a tree,
a highway, a curb, or a fence, only the former would be covered by the policy as
interpreted by the dissent. Such happenstance does not form a rational basis for
understanding the scope of coverage under an insurance policy. [Id. at 250 n 2
(emphasis added).]
In this case, it appears that the trial court essentially defined “occupant” as being in
“physical contact” with the vehicle. The trial court explained in announcing its ruling that
Theisen “was in contact with the side of the vehicle” and that “if ‘upon’ includes ‘on’ and ‘on’
means physical contact with something, then Mr. Theisen was on the vehicle when he was in
contact with the side of it and he proceeded to move with part of his body inside of it and
allowed the vehicle to move him in that situation.” However, our Supreme Court has
specifically rejected this notion that physical contact alone may demonstrate that a person was
“upon” a vehicle and thus occupying it. Rednour, 468 Mich. at 250. Instead, the statutory term
“occupant” has been defined for purposes of the no-fault act to mean “in or upon,” Farm Bureau,
193 Mich. App. at 324. Our Supreme Court has defined “occupant” to require that the “person
must be physically inside a vehicle.” Rednour, 468 Mich. at 249. The Rednour Court also stated
that being “upon” the vehicle means being “on or up and on” the vehicle. Id. at 250.
In this case, the trial court found that Theisen was being transported by the van whether
he was being dragged or whether he was walking alongside the vehicle as it moved. Such a
factual scenario is not in accordance with the above statements of our Supreme Court and is
distinguishable from the factual circumstances in Farm Bureau. Neither the situation in this case
nor the one in Farm Bureau presents a typical manner of riding in a motor vehicle. But the
claimant in Farm Bureau was nonetheless “up and on” the vehicle as he held onto the hood of
the vehicle while it drove for several blocks, and he was thus on top of a portion of the vehicle in
a way that a person in contact with the side of a moving vehicle and being dragged alongside (or
walking alongside) it would not be. It is doubtful that the “primary and generally understood
meaning” of the word occupant would include merely being dragged alongside a vehicle or being
moved by the vehicle while having some contact with it. Royal Globe, 419 Mich. at 575. Such a
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conclusion is in accordance with our Supreme Court’s observation that the words “on” and
“upon” must be interpreted in the context of the word they are defining, which in this case is the
word “occupant.” Rednour, 468 Mich. at 250 n 2. Similarly, the requirement that a person be
physically inside the vehicle must mean more than merely having a limb inside the vehicle, or
being between the open door and the passenger compartment, as the individual is dragged or
moved along outside the vehicle on the ground. Id. Thus, the trial court erred as a matter of law
in applying a definition of the statutory term “occupant” that essentially reduced the term to mere
physical contact; this definition is too broad and has been rejected by our Supreme Court.
Rednour, 468 Mich. at 250.6
This conclusion, however, does not end our analysis. The trial court found that Theisen
was actually transported by the van, explaining as follows:
The vehicle being in motion supports that first of all there’s obviously
contact with the vehicle and second, that the vehicle’s not just in motion but it’s
actually transporting Mr. Theisen whether he’s being dragged or whether he’s
walking along the veh--, alongside the vehicle, he is voluntarily using the vehicle
to transport him because he’s hanging on to something inside and he’s moving
along with the vehicle.
Furthermore, in concluding that the circumstances of this case were analogous to those of Farm
Bureau, the trial court stated that
he’s hanging onto the vehicle, which is what initiated this and what is occurring
throughout. There’s no indication that somehow he’s attached to the vehicle in a
way that he can’t extricate himself. He’s voluntarily attached himself onto the
vehicle with part of his body into it hanging onto it and moving his feet as the
vehicle moves because the vehicle is forcing him to do such, forcing him to move
his feet, not forcing him to stay attached to the vehicle.
However, the record contains materially conflicting accounts of the events leading up to
Theisen’s injuries. Theisen testified that he was between the door and the driver’s seat of the van
when it started to move and that he “got caught up into something.” According to Theisen, he
was dragged by the van and he did not think that he grabbed anything. He also testified that he
grabbed the frame or the seatbelt. Theisen indicated that he was not standing on any part of the
6
Defendant argues on appeal that the trial court improperly conflated the concepts of defining
“occupant” under the no-fault act and defining that term for purposes of an insurance policy.
However, it appears from our review of the record that the trial court was merely acknowledging
that the language in the parties’ policies was the same as the definition applied to the statutory
term “occupant” by this Court in Farm Bureau. It does not appear that the trial court relied on
any of the additional language in the policies that could potentially expand the definition of
occupant. Thus, while the trial court erroneously expanded the definition “in or upon” to
essentially include any physical contact with the vehicle, the trial court did not err by noting that
the policy definition also contained the terms in or upon.
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van. Similarly, Tyson testified that Theisen was not standing on the running board of the van
because he was at eye level with her, which is where he would have been if he were standing on
the ground. Tyson also testified that the door was open and that Theisen was walking next to the
van as the van started moving forward.7 According to Tyson, Theisen was holding her arm and
the steering wheel. Aldrich testified that Theisen was hanging onto the van and being carried by
it as the van backed up, although he also testified that Theisen was dragged alongside the van
and that he was walking alongside the van.
However, the trial court improperly made findings of fact by concluding that Theisen was
hanging onto something inside the vehicle and “voluntarily” using the vehicle to transport
himself. There was no evidence that Theisen voluntarily used the vehicle for the purpose of
transportation, and there was conflicting evidence regarding whether Theisen grabbed anything
and was up and on the van while being carried by it or whether he was merely “caught” by some
part of the van and dragged alongside it. The trial court ignored the conflicting testimony and
instead resolved factual discrepancies in describing how it believed the incident unfolded. By
engaging in judicial fact-finding on a motion for summary disposition, the trial court erred.
Lysogorski, 256 Mich. App. at 299.
Because a genuine issue of material fact exists in this matter, West, 469 Mich. at 183, we
reverse and remand for further proceedings consistent with this opinion. Defendant, may tax
costs. MCR 7.219(A). We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
7
Plaintiff argues on appeal that Tyson’s testimony that Theisen was walking next to her was
“mere speculation” and is insufficient to create an issue of material fact that would make
summary disposition improper. Plaintiff relies on Karbel v Comerica Bank, 247 Mich. App. 90,
97-98; 635 NW2d 69 (2001), for the proposition that “parties opposing a motion for summary
disposition must present more than conjecture and speculation to meet their burden of providing
evidentiary proof establishing a genuine issue of material fact . . . . A conjecture is simply an
explanation consistent with known facts or conditions, but not deducible from them as a
reasonable inference.” (Quotation marks and citation omitted; ellipsis in original.) But
plaintiff’s argument is without merit because Tyson’s testimony on this point was not
speculative. She explained her reasons for concluding that Theisen was walking alongside the
van and was not standing on the running board; Tyson testified that Theisen was not “dipped
down” and that he was at eye level with her, which is where he would have been located if he
was standing on the ground. Thus, Tyson’s conclusion was not a conjecture but was instead
based on a reasonable inference that was deducible from facts known to her about the height of
her husband, the height of the van, and the height of the running board. Id.
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