Ruth M Dobrinski v. State Farm Mutual Automobile Inurance Co ( 2020 )

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
RUTH M. DOBRINSKI, UNPUBLISHED
April 23, 2020
Plaintiff-Appellee,
v No. 345045
Bay Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 17-003788-NF
INSURANCE CO.,
Defendant-Appellant,
and
DOLGENCORP, LLC, and WOODWARD
DETROIT CVS,
Defendants.
Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s denial of its motion for summary
disposition. We reverse, and remand for entry of an order granting summary disposition in favor
of defendant under MCR 2.116(C)(10).
I. FACTUAL BACKGROUND
Plaintiff fell in the parking lot of the Dollar General located in Bay City, Michigan.
Plaintiff had parked her car in the parking lot, alighted from the vehicle, and then went into the
Dollar General. Plaintiff left the store after purchasing greeting cards, cookies, and candy, and
returned to her vehicle. Plaintiff opened the driver’s side door, reached across the center console
1
Dobrinski v State Farm Mut Auto Ins Co, unpublished order of the Court of Appeals, issued
January 25, 2019 (Docket No. 345045).
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and placed the items she had purchased on the front passenger seat. Plaintiff closed the driver’s
side door, and returned her shopping cart to the corral in the parking lot. Plaintiff began to walk
back to her car, and as she was reaching for the door handle on the driver’s side door, the toe of
plaintiff’s shoe got caught in a small hole in the parking lot causing plaintiff to fall. Plaintiff never
touched the vehicle.
Plaintiff sought payment of PIP benefits from defendant, her no-fault insurer, under MCL
500.3106(1). Defendant refused to pay, arguing that plaintiff was not entering her vehicle at the
time of her fall, and therefore she was not entitled to PIP benefits under MCL 500.3106(1).
Plaintiff brought suit, and following discovery, defendant moved for summary disposition under
MCR 2.116(C)(10). The trial court denied defendant’s motion, concluding that a factual issue
remained for the jury regarding whether plaintiff was in the process of entering her vehicle at the
time of her fall. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary disposition.
Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich. 245, 251; 901 NW2d 534 (2017). Summary
disposition is appropriate under MCR 2.116(C)(10) when there is no genuine issue of material fact
and the moving party is “entitled to judgment or partial judgment as a matter of law.” Id. (quotation
marks and citation omitted). “[W]here there is no dispute about the facts, 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.” Id. quoting McKenzie v Auto Club Ins Ass’n, 458 Mich. 214, 216 n 1; 580 NW2d 424
(1998) (alteration in original).
III. ANALYSIS
Defendant argues that the trial court erred as a matter of law by concluding that there were
outstanding questions of fact regarding whether plaintiff was entering her vehicle at the time she
fell. We agree.
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. . . .” When a motor vehicle is parked, MCL 500.3106(1) provides that “[a]ccidental bodily
injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a
motor vehicle,” except when:
(a) The vehicle was parked in such a way as to cause unreasonable risk of
the bodily injury which occurred.
(b) Except as provided in [MCL 500.3106(2)], the 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) Except as provided in [MCL 500.3106(2)], the injury was sustained by
a person while occupying, entering into, or alighting from the vehicle. [MCL
500.3106(1).]
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To receive coverage for a claim involving a parked motor vehicle, a claimant “must demonstrate
that (1) his conduct fits one of the three exceptions of [MCL 500.3106(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 v Transamerica Ins Corp of Am, 454 Mich. 626, 635-636; 563
NW2d 683 (1997) (emphasis in original).
The provision at issue here is MCL 500.3106(1)(c), as plaintiff alleged she was injured
while entering into her vehicle. The relevant question therefore becomes what constitutes entering
into a vehicle. Entry does not exist when a person is merely preparing to enter a vehicle. King v
Aetna Cas and Surety Co, 118 Mich. App. 648, 650-651; 325 NW2d 528 (1982). The process of
entry begins when a plaintiff has touched or opened his or her car door. Hunt v Citizens Ins Co,
183 Mich. App. 660, 664; 455 NW2d 384 (1990).
In this case, plaintiff had not entered, or begun to enter, her vehicle. Indeed, she was merely
preparing to enter her vehicle when she fell. After plaintiff placed her purchases on the front
passenger seat of her car, plaintiff closed the driver’s side door and walked away. She did not start
her car, or leave the door open. Plaintiff had not yet reached her car when she fell, and never
touched her car after leaving to return the shopping cart. Clearly, plaintiff intended to enter into
her vehicle, but intent to enter a vehicle is insufficient to warrant coverage under MCL
500.3106(1)(c). See McCaslin v Hartford Accident & Indemnity, 182 Mich. App. 419, 422; 452
NW2d 834 (1990), where this Court concluded that “the express language of [MCL
500.]3106(1)(c) does not address the intent of the injured person.”
We therefore conclude that as a matter of law, plaintiff had not yet begun entering into her
vehicle when she fell. Accordingly, defendant was entitled to summary disposition.
We reverse, and remand for entry of an order granting summary disposition in favor of
defendant under MCR 2.116(C)(10). We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra
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