Jones v. Employers Ins. of Wausau

157 Mich. App. 345 (1987) 403 N.W.2d 130

JONES
v.
EMPLOYERS INSURANCE OF WAUSAU

Docket No. 87440.

Michigan Court of Appeals.

Decided January 21, 1987.

McCroskey, Feldman, Cochrane & Brock (by Robert O. Chessman), for plaintiff.

Dykema, Gossett, Spencer, Goodnow & Trigg (by R. Curtiss Mabbitt), for defendant.

Before: D.E. HOLBROOK, JR., P.J., and WAHLS and M.E. DODGE,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Plaintiff Kenneth Jones appeals as of right from the order entered in Muskegon Circuit Court granting defendant Employers Insurance of Wausau's motions for reconsideration and for summary judgment. We affirm.

On September 8, 1982, plaintiff was employed by William W. Kimmins & Son to cut metal away from the face of a building which Kimmins had contracted to dismantle. While performing the work plaintiff was enclosed in a cage which had been raised by a forklift. The cage and forklift were used in this way as a substitute for scaffolding to reach the metal on the building. Plaintiff sustained severe back injuries when the cage fell off the forklift and toppled twenty-five feet to the ground.

Plaintiff brought suit against Detroit Automobile Inter-Insurance Exchange, his no-fault insurer; Michigan Mutual Insurance Company, the insurer of the owner of the forklift, Wausau, the insurer of Kimmins; and the lessor of the forklift. Plaintiff alleged that his injuries arose out of the ownership, operation, maintenance or use of the forklift as a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). DAIIE and Michigan Mutual were subsequently dismissed pursuant to their motions for summary judgment. Defendant Wausau filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3) which was initially denied. Subsequently, plaintiff was granted partial summary judgment against Wausau on the basis that the forklift constituted a motor vehicle within the meaning of MCL 500.3101(2)(c); MSA 24.13101(2)(c). Wausau moved for reconsideration of that order, which was granted, and summary judgment in Wausau's favor was entered on August 24, 1985.

On appeal, the issue is whether the forklift was a motor vehicle within the scope of MCL 500.3101(2)(c); MSA 24.13101(2)(c). That statute states in part: "(c) `[m]otor 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."

There is no dispute that the forklift at issue had four wheels, an engine and was self-propelled. Hence, with respect to those two requirements, the forklift fell within the classification of "motor vehicle." Cf., Citizens Ins Co of America v Detloff, 89 Mich. App. 429; 280 NW2d 555 (1979), lv den 407 Mich. 864 (1979). On the other hand, there is no dispute that plaintiff's alleged injuries occurred while the forklift was being operated in the parking lot of the construction site and not on a public highway. Hence, the dispute at issue is whether the forklift used to raise plaintiff's cage was designed for operation on a public highway. Plaintiff's claim can succeed only if the forklift is found to have been so designed.

In Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich. App. 729; 367 NW2d 444 (1985), lv den 422 Mich. 971 (1985), the plaintiff was injured by a hi-lo while it was being operated on private property. This Court rejected the plaintiff's claim that, because the hi-lo could be operated on a public highway, it was a motor vehicle within the meaning of § 3101. Rather, the Court held that the hi-lo was not an item designed primarily for highway use and therefore was not within the meaning of "motor vehicle." Ebernickel, supra, 731-732.

Similarly, in Apperson v Citizens Mutual Ins Co, 130 Mich. App. 799; 344 NW2d 812 (1983), the plaintiff, a spectator at a "street stock" car race, was injured by a wheel which flew off a vehicle in the race. This Court ruled that cars which had been designed or modified for racing on a track were not designed for use upon public highways and therefore were not motor vehicles. Apperson, supra, 802.

We find Ebernickel and Apperson to be dispositive in the instant case. Although the forklift at issue could be operated on a public highway, it was not being operated on a public highway at the time of the accident. The ability to use the forklift on the highway does not indicate that it was "designed" for such use. See McDaniel v Allstate Ins Co, 145 Mich. App. 603, 608; 378 NW2d 488 (1985). Here, the forklift was not designed for use upon public highways. It had one seat and no windshield, no windows, no doors, no turn signals, no backup lights, no headlights and no taillights. There was neither a speedometer nor an odometer. The forklift had only two gears — high and low. It reached a maximum speed of only fifteen miles per hour in high gear. Consequently, we conclude that the forklift was not a motor vehicle within MCL 500.3101(2)(c); MSA 24.13101(2)(c) and therefore summary judgment in defendant's favor was appropriate.

We note at this point that defendant's original motion for summary judgment, which was initially denied by the trial court, was brought pursuant to both GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10). In later granting defendant's motion for reconsideration and, consequently, defendant's motion for summary judgment, the trial court failed to specify upon which ground summary judgment was granted. It appears that summary judgment in defendant's favor was granted on the basis that plaintiff failed to state a claim upon which relief could be granted since the court ruled, as a matter of law, that the forklift truck was not a motor vehicle within the meaning of the statute. GCR 1963, 117.2(1). A motion under sub-rule (1) tests the legal basis of the complaint, not whether it can be factually supported. Martin v Metropolitan Life Ins Co, 140 Mich. App. 441, 447; 364 NW2d 348 (1985). The dispute at issue revolves not around the legal basis of plaintiff's complaint (plaintiff has stated a claim under the no-fault act) but, rather, whether there is factual support for plaintiff's claim that the forklift was designed for operation on a public highway. Here, it is undisputed that the forklift lacked the necessary accouterments which, if attached to the machine, could have qualified it as a vehicle "designed for use upon a public highway." Consequently, we believe that summary judgment would more properly have been granted on the basis that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law. GCR 1963, 117.2(3); Rizzo v Kretschmer, 389 Mich. 363, 371-373; 207 NW2d 316 (1973); Linebaugh v Berdish, 144 Mich. App. 750, 753; 376 NW2d 400 (1985). However, we will not disturb the lower court's order on the basis that it granted summary judgment on the wrong ground where it reached the right result. Warren v Howlett, 148 Mich. App. 417, 426; 383 NW2d 636 (1986). We believe that neither party was misled. Hankins v Elro Corp, 149 Mich. App. 22, 26; 386 NW2d 163 (1986). We do, however, urge both the attorneys and the lower court in future matters to be conscious of and specify the court rules upon which motions are based and granted.

Affirmed. Costs to appellee.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.