Tamara Woodring v. Phoenix Insurance Company

Order Michigan Supreme Court
Lansing, Michigan
June 7, 2019 Bridget M. McCormack,
Chief Justice
158213 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
TAMARA WOODRING, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 158213
COA: 324128
Muskegon CC: 14-049544-NI
PHOENIX INSURANCE COMPANY,
Defendant-Appellant.
____________________________________/
On order of the Court, the application for leave to appeal the June 28, 2018
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
ZAHRA, J. (dissenting).
I would grant the application and revisit this Court’s opinion in Miller v Auto-
Owners Ins Co, 411 Mich. 633 (1981), which was disavowed in part by Frazier v Allstate
Ins Co, 490 Mich. 381 (2011). In Miller, this Court held that an insured is entitled to
compensation under the no-fault act, MCL 500.3101 et seq., for an injury sustained while
performing “maintenance” of his or her vehicle without regard to whether the vehicle
might be considered “parked” at the time of the injury. The Court concisely explained:
There is an apparent tension between these two sections [MCL
500.3105 and MCL 500.3106] of the no-fault act: requiring, on the one
hand, compensation for injuries incurred in the maintenance of a vehicle
[MCL 500.3105] but not requiring, on the other hand, compensation for
injuries incurred in the maintenance of a parked vehicle, with three
exceptions [MCL 500.3106]. Since most, if not all, maintenance is done
while the vehicle is parked, and since the three exceptions appear addressed
to circumstances unrelated to normal maintenance situations, a conflict
appears. [Miller, 411 Mich. at 637-638.]
In Miller, the insurer invited the Court to “distinguish among parked vehicles
according to whether they were parked involuntarily, as when a driver pulls onto the
shoulder to repair a flat tire, or voluntarily, as in Miller’s case.” Id. at 638. Noting that
“[s]uch a distinction, however, would often be difficult to draw,” the Court declined to
resolve the issue “solely by focusing on the term ‘parked’ . . . .” Id.
I tend to agree with Miller that the insurer’s argument in that case was not
persuasive, mostly, in my view, because there is no statutory basis to distinguish between
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cars parked voluntarily or involuntarily. But I disagree that the term “parked” should not
be considered, and I certainly do not agree with Miller’s decision to ignore the term
altogether (“Compensation is thus required . . . without regard to whether his vehicle
might be considered ‘parked’ at the time of injury,” id. at 641). The relevant common
definition of “park” at the time was “to halt (one’s vehicle) with the intention of not using
it again immediately.” The Random House College Dictionary (1975). There is clearly a
temporal component to the term that suggests that the vehicle may continue to be used as
a motor vehicle. But to hold, as did the Court in Miller and several other published cases,
that a vehicle which cannot be operated is “parked” extends the term well beyond its
ordinary meaning. So, in Miller, for instance, the plaintiff was severely injured when his
automobile fell on his chest while he was attempting to replace a pair of shock absorbers.
The vehicle was obviously not parked because it could not be driven at the time.
Consider some of the many cases in which an insured is injured while performing
maintenance: Mich Basic Prop Ins Ass’n v Mich Mut Ins Co, 122 Mich. App. 420 (1983)
(insured injured while removing an exhaust manifold); Great American Ins Co v Old
Republic Ins Co, 180 Mich. App. 508 (1989) (insured injured while using cutting torch to
cut off metal pins that were holding hydraulic cylinders in place); Wagner v Mich Mut
Liability Ins Co, 135 Mich. App. 767 (1983) (insured injured while warming oil pan with
charcoal fire); Stanley v State Auto Mut Ins Co, 160 Mich. App. 434 (1987) (insured
injured by car falling off jack); Yates v Hawkeye-Security Ins Co, 157 Mich. App. 711
(1987) (insured injured preparing to tow disabled vehicle); Kudek v Detroit Auto Inter-Ins
Exch, 100 Mich. App. 635 (1980), rev’d 414 Mich. 956 (1982) (insured injured while
working on wheel assembly when tire exploded); Mack v Travelers Ins Co, 192 Mich
App 691 (1992) (insured injured while pouring oil into engine); Hackley v State Farm
Mut Auto Ins Co, 147 Mich. App. 115 (1985) (insured injured while inspecting engine for
cause of stalling).
In all these cases, the maintenance was being performed on inoperable vehicles at
the time the insureds were injured. In my view, none of these vehicles were “parked” in
the common sense of the term. In each circumstance, a person can ask themselves, if
they had been given the key to drive the vehicle, whether they would consider the
inoperable vehicle “parked.” I submit the reasonable answer would be no.
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Further, this understanding is entirely consistent with the parked-car exceptions
contained in MCL 500.3106. “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.” Miller, 411 Mich.
at 640. But the characteristics of an inoperable motor vehicle are in fact like other
stationary roadside objects that can be involved in vehicle accidents. While I understand
that giving meaning to the term “parked” in this context is not an easy task, I think this
Court ought to attempt to do so before resorting to the “absurd results” doctrine. In other
words, given that the term “parked” obviously does not refer to inoperable vehicles, I
cannot conclude that “ ‘the absurdity and injustice of applying the provision to the case
would be so monstrous, that all mankind would, without hesitation, unite in’ ” ignoring
the term “parked.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St.
Paul: Thomson/West, 2012), p 237, quoting 1 Story, Commentaries on the Constitution
of the United States (2d ed), § 427, p 303.
MARKMAN, J., joins the statement of ZAHRA, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 7, 2019
a0604
Clerk