Pioneer State Mutual Insurance v. State Farm Mutual Automobile Insurance

V. J. Brennan, J.

Plaintiff appeals from an order granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(2) and (3) and denying plaintiffs motion for summary judgment.

On June 27, 1979, a "cherry shaker” owned by Cairnside Farms, Inc., was being operated on an Antrim County road when it was involved in a collision with a truck. The "cherry shaker” was insured by plaintiff and the truck was insured under a no-fault policy by defendant. After plaintiff made payments for repairs to the cherry shaker to Cairnside Farms, Inc., it commenced the instant action, as subrogee to its insured’s rights, against defendant for property protection benefits under defendant’s no-fault policy covering the truck.

Both plaintiff and defendant filed motions for summary judgment based upon Michigan’s no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. At the June 9, 1980, hearing, the trial court ruled that the cherry shaker was a "vehicle” and thereby excluded from the scope of property protection insurance benefits. Consequently, the trial court granted defendant’s motion and denied plaintiff’s motion for summary judgment.

A "cherry shaker” is a piece of farm equipment used extensively in northwestern Michigan for the purpose of harvesting cherries by physically shaking the trees, causing the cherries to drop off into a large net-like surface which funnels the cherries into containers for shipment. Most germane to the present suit, it is admitted that the cherry shaker is a motorized, self-propelled device which has four wheels.

Plaintiff argues on appeal, as it did below, that a cherry shaker does not fall within the definition of "vehicle” and, thus, is not subject to the exclusion provision of § 3123(l)(a) of the act. MCL 500.3123(l)(a); MSA 24.13123(l)(a).¹ Additionally, plaintiff raises on appeal a challenge as to the constitutionality of the act.

We note that this same plaintiff previously has raised, briefed and argued the identical issues before another panel of this Court. Pioneer State Mutual Ins Co v Allstate Ins Co, 107 Mich App 261; 309 NW2d 598 (1981) (hereafter Allstate).

In Allstate, the narrow question presented to this Court was whether a farm tractor was a "vehicle” as defined in § 3123(l)(a). The panel, in a thorough analysis, again rejected the argument that the term "motor vehicle” as used in § 3101(2), MCL 500.3101(2); MSA 24.13101(2), and "vehicle” as used in § 3123 were intended by the Legislature to be interchangeable. See Degrandchamp v Michigan Mutual Ins Co, 99 Mich App 664; 299 NW2d 18 (1980), Braden v Spencer, 100 Mich App 523; 299 NW2d 65 (1980). Rather, the panel concluded, contrary to plaintiffs contention, that regardless of whether a farm tractor is to be considered as a § 3101(2) "motor vehicle”, it most definitely is a § 3123 "vehicle”, and, hence, subject to the exclusionary provisions for no-fault property damage benefits. The panel reasoned thusly:

"Application of § 3123(l)(a) to the instant case shows that the exclusion applies because the tractor was (1) a vehicle, (2) being operated on a public highway, and (3) being operated by power other than muscular power.” Allstate, supra, 266.

We are persuaded that the foregoing analysis and holding are applicable and controlling in the instant case. The farm tractor and the cherry shaker share in common the determinative characteristics which bring them within the ambit of § 3123(l)(a) exclusionary property. We therefore again reject plaintiffs argument and affirm the lower court’s grant of summary judgment in favor of defendant.

Also, we adopt the Allstate holding that rejects plaintiff’s constitutional challenge to the act, that issue being directly controlled by Shavers v Attorney General, 402 Mich 554, 625-633; 267 NW2d 72 (1978), cert den 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979).

Affirmed.

1 "Sec. 3123. (1) Damage to the following kinds of property is excluded from property protection insurance benefits:

"(a) Vehicles and their contents, including trailers operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.”