Summary
In Kemp v Farm Bureau General Insurance Company of Michigan, 500 Mich. 245, 252; 901 N.W.2d 534 (2017), our Supreme Court instructed: "[w]hen interpreting statutes, our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language.
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No. 151719
06-15-2017
Daniel KEMP, Plaintiff–Appellant, v. FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, Defendant–Appellee.
Marshall Lasser, PC (by Marshall Lasser ), for Daniel Kemp. Kopka Pinkus Dolin PLC (by Mark L. Dolin, Valerie Henning Mock, and Donald A. Winningham ) and Bursch Law PLLC (by John J. Bursch ) for Farm Bureau General Insurance Company of Michigan. Amicus Curiae: Speaker Law Firm, PLLC (by Liisa R. Speaker and Jennifer M. Alberts), and Sinas Dramis Brake Boughton & McIntyre PC (by George T. Sinas and Stephen H. Sinas ) for the Coalition Protecting Auto No-Fault.
Marshall Lasser, PC (by Marshall Lasser ), for Daniel Kemp.
Kopka Pinkus Dolin PLC (by Mark L. Dolin, Valerie Henning Mock, and Donald A. Winningham ) and Bursch Law PLLC (by John J. Bursch ) for Farm Bureau General Insurance Company of Michigan.
Amicus Curiae: Speaker Law Firm, PLLC (by Liisa R. Speaker and Jennifer M. Alberts), and Sinas Dramis Brake Boughton & McIntyre PC (by George T. Sinas and Stephen H. Sinas ) for the Coalition Protecting Auto No-Fault.
BEFORE THE ENTIRE BENCH
OPINION
Viviano, J.
At issue in this case is whether plaintiff, Daniel Kemp, is entitled to personal protection insurance (PIP) benefits under the no-fault act for injuries he allegedly sustained while unloading personal belongings from his parked vehicle. We hold that plaintiff created an issue of fact regarding whether he satisfied the parked motor vehicle exception in MCL 500.3106(1)(b) and the corresponding causation requirement. We also hold as a matter of law that plaintiff satisfied the transportational function requirement. Therefore, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with this opinion.
MCL 500.3101 et seq.
As explained herein, a plaintiff seeking PIP benefits for an injury related to a parked motor vehicle must satisfy (1) one of the three exceptions set forth in MCL 500.3106(1) ; (2) the transportational function requirement; and (3) the causation requirement. See Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 635–636, 563 N.W.2d 683 (1997).
I. FACTS AND PROCEEDINGS
On September 15, 2012, after plaintiff finished working, he placed his briefcase, overnight bag, thermos, and lunch box on the floor behind the driver's seat of his 2010 Chevy Silverado 1500 extended cab truck. He then drove home. When he arrived, he parked in his driveway, stepped out of the vehicle, and went to retrieve his belongings. Plaintiff opened the rear door, reached into the vehicle for his belongings, and sustained an injury as he was lowering them from the vehicle.
Subsequently, plaintiff filed suit against his auto insurer, defendant Farm Bureau General Insurance Company of Michigan, seeking no-fault benefits under § 3106(1)(b). Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff was not entitled to no-fault benefits because (1) his injury did not arise out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle, (2) his injury did not meet the parked motor vehicle exception in § 3106(1)(b), and (3) his injury did not have a causal relationship to the parked motor vehicle that was more than incidental, fortuitous, or but for. In response, plaintiff asked the trial court to deny defendant's motion and to grant plaintiff judgment under MCR 2.116(I)(2). The trial court granted defendant's motion.
MCR 2.116(I)(2) states that "[i]f it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party."
Plaintiff appealed, and the Court of Appeals affirmed the trial court's judgment in a split decision. The Court of Appeals majority concluded that plaintiff's "injury had nothing to do with 'the transportational function' of his truck." According to the Court, "the removal of personal effects from a parked vehicle ... cannot be said to result from some facet particular to the normal functioning of a motor vehicle" because similar movements routinely occur in other places. Rather, the majority reasoned, plaintiff's vehicle was used as a "storage space for his personal items" and was "merely the site" of the injury.
Kemp v. Farm Bureau Gen. Ins. Co. of Mich., unpublished per curiam opinion of the Court of Appeals, issued May 5, 2015 (Docket No. 319796), 2015 WL 2091350.
Id. at 3 (citation omitted).
Id. (quotation marks and citation omitted).
Id.
Dissenting, Judge BECKERING concluded that plaintiff had satisfied the parked motor vehicle exception set forth in § 3106(1)(b). The dissent further concluded that plaintiff had satisfied the transportational function requirement because "it is axiomatic that when one travels in a vehicle, one will take personal effects along for the ride and will seek to unload those personal effects when the drive is finished." Finally, the dissent reasoned that "plaintiff's injury had a direct causal relationship to the parked vehicle" because it was the act of retrieving his personal effects from his vehicle that caused his injury.
Id. ( Beckering , P.J., dissenting) at 1.
Id. at 5.
Id. at 6.
Plaintiff then sought review in this Court, and we ordered oral argument on plaintiff's application, directing the parties to address
(1) whether the plaintiff's injury is closely related to the transportational function of his motor vehicle, and thus whether the plaintiff's injury arose out of the ownership, operation, maintenance, or use of his motor vehicle as a motor vehicle; and (2) whether the plaintiff's injury had a causal relationship to his parked motor vehicle that is more than incidental, fortuitous, or but for. McKenzie v. Auto Club Ins. Ass'n, 458 Mich. 214, 217 n. 3, 580 N.W.2d 424 (1998).[ ]
Kemp v. Farm Bureau Gen. Ins. Co. of Mich., 499 Mich. 861, 861–862, 873 N.W.2d 595 (2016).
II. STANDARD OF REVIEW
We review de novo a trial court's decision to grant a motion for summary disposition under MCR 2.116(C)(10). MCR 2.116(C)(10) provides that summary disposition is appropriate when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In determining whether there is a genuine issue as to any material fact, we consider the evidence in the light most favorable to the nonmoving party. "[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."
DeFrain v. State Farm Mut. Auto Ins. Co., 491 Mich. 359, 366, 817 N.W.2d 504 (2012).
Id.
McKenzie v. Auto Club Ins. Ass'n, 458 Mich. 214, 216 n. 1, 580 N.W.2d 424 (1998), citing Putkamer, 454 Mich. at 630, 563 N.W.2d 683 (alteration in original).
Issues of statutory interpretation are also reviewed de novo. When interpreting statutes, our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language. "In so doing, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme." "When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written."
Madugula v. Taub, 496 Mich. 685, 695, 853 N.W.2d 75 (2014).
Id. at 696, 853 N.W.2d 75.
Id.
Id. (quotation marks and citation omitted).
III. ANALYSIS
A. LEGAL BACKGROUND
"The Michigan no-fault insurance act requires a no-fault automobile insurer to provide first-party injury protection for certain injuries related to a motor vehicle ...." The no-fault act's initial scope of coverage for PIP benefits is set forth in MCL 500.3105(1), which provides that under "personal protection insurance 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, subject to the provisions of this chapter." However, when an injury involves a parked motor vehicle, coverage is generally excluded unless the claimant demonstrates that one of three statutory exceptions applies. Plaintiff claims that he is entitled to PIP benefits under the parked motor vehicle exception contained in the second clause of § 3106(1)(b), which provides:
Putkamer, 454 Mich. at 631, 563 N.W.2d 683.
(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
* * *
(b) ... 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.[ ]
Emphasis added. There is an exception to this coverage for certain injuries occurring to an employee in the course of employment if workers' compensation benefits are available to compensate for the injury. MCL 500.3106(2). The workers' compensation exception is not pertinent here.
This Court has provided a three-step framework to analyze coverage of injuries related to parked motor vehicles. First, the claimant must demonstrate that his or her "conduct fits one of the three exceptions of subsection 3106(1)." Second, the claimant must show that "the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle[.]" Finally, the claimant must demonstrate that the "injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for." We analyze each of these requirements in turn.
Putkamer, 454 Mich. at 635–636, 563 N.W.2d 683 ; McKenzie, 458 Mich. at 217 n. 3, 580 N.W.2d 424.
Putkamer, 454 Mich. at 635, 563 N.W.2d 683.
Id. at 635–636, 563 N.W.2d 683 (emphasis added).
Id. at 636, 563 N.W.2d 683.
B. STEP ONE: PARKED MOTOR VEHICLE EXCEPTION IN § 3106(1)(b)
We must first determine whether plaintiff's conduct falls within the parked motor vehicle exception contained in the second clause of § 3106(1)(b), which provides coverage when "the injury was a direct result of physical contact with ... property being lifted onto or lowered from the vehicle in the loading or unloading process."
MCL 500.3106(1)(b). For the first time in its supplemental brief to this Court, defendant argues that the two clauses of § 3106(1)(b)—"direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used" and "direct result of physical contact with ... property being lifted onto or lowered from the vehicle in the loading or unloading process"—should not be construed as independent exceptions. But see Winter v. Auto . Club of Mich., 433 Mich. 446, 460, 446 N.W.2d 132 (1989), citing § 3106(1)(b) ( "The second [clause] requires that the injury be a direct result of physical contact with 'property being lifted onto or lowered from the vehicle in the loading or unloading process.' "). However, defendant did not contest the meaning of this subdivision in the lower courts, and we did not request briefing on the issue. We decline to address defendant's arguments in this regard because they are unpreserved. Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 234 & n. 23, 507 N.W.2d 422 (1993) ("Issues raised for the first time on appeal are not ordinarily subject to review" and "this Court has repeatedly declined to consider arguments not presented at a lower level").
In this case, plaintiff established a question of fact concerning whether he was injured as he lowered his briefcase, overnight bag, thermos, and lunch box (all of which were bundled together) from his vehicle to the ground during the unloading process. Those items are "property" because they are things "owned or possessed" by plaintiff. And plaintiff testified that he was in physical contact with his property and lowering it from the vehicle when he sustained the injury.
Merriam–Webster's Collegiate Dictionary(11th ed.). "All words and phrases shall be construed and understood according to the common and approved usage of the language ...." MCL 8.3a. "To understand the meaning of words in a statute that are not otherwise defined, we may resort to dictionary definitions for guidance." Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC, 499 Mich. 544, 559 n. 41, 886 N.W.2d 113 (2016).
That leaves only the question whether a reasonable jury could find that plaintiff's injury was the "direct result" of this physical contact with the property. At an earlier stage of this case, defendant argued that the statutory phrase "direct result" means that the injury must be "due to" physical contact with the property—a position that the dissent now advances. We agree. Plaintiff must show that his injury was caused by contact with the property being loaded or unloaded.
See, e.g., Celina Mut. Ins. Co. v. Citizens Ins. Co., 136 Mich.App. 315, 320, 355 N.W.2d 916 (1984) ("Stephens's injuries were caused by contact with the property being loaded and unloaded, the steel."). The dissent's person-struck-by-lightning hypothetical is therefore a red herring.
Here, plaintiff testified: "I leaned in the vehicle, picked up my items, brought them outside as I twisted to set them down. That's when I heard bang, stuff fell to the ground, I fell in the truck." The dissent contends, in essence, that this testimony establishes only a temporal, rather than a causal, relationship between plaintiff's contact with the property and his injury and is therefore insufficient to create a jury question. It is true, of course, that plaintiff did not himself testify as to causation, but we do not believe it follows that a jury could not reasonably infer causation from plaintiff's testimony and other evidence in the record. We can cite, and indeed the dissent also cites, several cases in which a plaintiff's injury was caused (or alleged to be caused) by the kinetic energy, weight, or some other physical property associated with the thing being loaded or unloaded from a parked motor vehicle. Whether, in this case, plaintiff's property was of sufficient size and weight to cause plaintiff's injury is, in our view, an issue for the jury to decide—unless we could conclude, as a matter of law, that it could not have caused the injury alleged. We believe plaintiff's bundled-together briefcase, overnight bag, thermos, and lunch box clears this threshold.
Plaintiff submitted into evidence an affidavit from Dr. Surinder Kaura, averring that, in his opinion, plaintiff's "calf and low back injuries arose out of the process of unloading the items as Mr. Kemp described, and were not merely incidental to the unloading process." As both the majority and dissent below noted, the trial court erred by failing to view Dr. Kaura's affidavit in the light most favorable to plaintiff.
See, e.g., Arnold v. Auto–Owners Ins. Co., 84 Mich.App. 75, 80, 269 N.W.2d 311 (1978) (reversing summary judgment for the insurance companies when the plaintiff ruptured a disk in his back while he was lifting a ramp onto the upper deck of his employer's truck); Adanalic v. Harco Nat'l Ins. Co., 309 Mich.App. 173, 182, 870 N.W.2d 731 (2015) (holding that "the statute does not require that the property, itself, inflict the injuries" and rejecting the insurer's "attempts to fundamentally rewrite the statute to state that a plaintiff's injury must occur as a result of being struck by the property being loaded or unloaded"); Ritchie v. Federal Ins. Co., 132 Mich.App. 372, 373–374, 347 N.W.2d 478 (1984) (holding that there was a question of fact about whether the plaintiff's contact with the ice directly resulted in the injury he sustained when the stairway he was descending collapsed as he was carrying a 50–pound block of ice to load it onto his truck).
We agree that an injury allegedly caused by unloading the dissent's hypothetical feather would almost certainly not survive summary disposition.
The dissent's citation of Dinkins v. State Farm Mut. Auto Ins. Co., unpublished per curiam opinion of the Court of Appeals, issued December 13, 2012 (Docket No. 307363), 2012 WL 6217154, is, therefore, unhelpful because it begs the factual question at issue in this case. We also find no reasoned basis for excluding, as a matter of law, injuries caused when a person uses a "twisting action" to lower property to the ground, as distinct from other methods a person may use to load or unload property.
Accordingly, plaintiff established a question of fact as to whether his injury falls within the parked motor vehicle exception in the second clause of § 3106(1)(b) because it "was a direct result of physical contact with ... property being lifted onto or lowered from the vehicle in the loading or unloading process."
C. STEP TWO: TRANSPORTATIONAL FUNCTION REQUIREMENT
Next, we must determine whether plaintiff has met the transportational function requirement. In McKenzie, this Court discussed this requirement as follows:
Because we conclude that plaintiff has met this requirement, we need not address his argument that "the Court of Appeals majority erred in tacking on to MCL 500.3106(1)(b) a requirement that the injury fulfill the 'transportational function' of the vehicle." (Capitalization altered.) Compare McKenzie, 458 Mich. at 218, 580 N.W.2d 424 (concluding that courts must analyze the transportational function requirement for parked vehicles), and Putkamer, 454 Mich. at 632–633, 563 N.W.2d 683 (same), with Winter, 433 Mich. at 457, 446 N.W.2d 132 ("In limiting no-fault benefits to injuries 'arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,' the Legislature realized that it would be inherently difficult to determine when a parked vehicle is in use 'as a motor vehicle.' Accordingly, the Legislature specifically described in subsections (a)-(c) of § 3106(1) the limited circumstances when a parked vehicle is being used 'as a motor vehicle.' "); see also Drake v. Citizens Ins. Co. of America, 270 Mich.App. 22, 30, 715 N.W.2d 387 (2006) ("[A] cogent argument can be made that if any of the three parked-vehicle exceptions applies in a given case, the injury, by statutory mandate, does arise out of the ownership, operation, maintenance, or use of the parked vehicle as a motor vehicle; therefore, PIP benefits would be recoverable.").
[T]he phrase "use of a motor vehicle 'as a motor vehicle' " would appear to invite contrasts with situations in which a motor vehicle is not used "as a motor vehicle." This is simply to say that the modifier "as a motor vehicle" assumes the existence of other possible uses and requires distinguishing use "as a motor vehicle" from any other uses. While it is easily understood from all our experiences that most often a vehicle is used "as a motor vehicle," i.e., to get from one place to another, it is also clear from the phrase used that the Legislature wanted to except those other occasions, rare as they may be, when a motor vehicle is used for other purposes, e.g., as a housing facility of sorts, as an advertising display (such as at a car dealership), as a foundation for construction equipment, as a mobile public library, or perhaps even when a car is on display in a museum. ... It seems then that when we are applying the statute, the phrase "as a motor vehicle" invites us to determine if the vehicle is being used for transportational purposes.[ ]
McKenzie, 458 Mich. at 218–219, 580 N.W.2d 424.
The Court concluded that "whether an injury arises out of the use of a motor vehicle 'as a motor vehicle' under § 3105 turns on whether the injury is closely related to the transportational function of motor vehicles." To answer this question, we must examine the activity the plaintiff was engaged in at the time of the injury.
Id. at 225–226, 580 N.W.2d 424.
See id. at 219, 580 N.W.2d 424. In McKenzie, we observed that "no-fault insurance generally covers damage directly resulting from an accident involving moving motor vehicles ... because moving motor vehicles are quite obviously engaged in a transportational function." Id. at 221, 580 N.W.2d 424, citing Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 528 N.W.2d 681 (1995). The question becomes a little more complicated when a vehicle is stationary because "[i]njuries involving parked motor vehicles do not normally involve the vehicle as a motor vehicle." Miller v. Auto–Owners Ins. Co., 411 Mich. 633, 639, 309 N.W.2d 544 (1981). The statutory exceptions to the parked vehicle exclusion in § 3106(1) outline situations in which, "although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle." Id. at 640–641, 309 N.W.2d 544. In Putkamer, we held that "entering a vehicle in order to travel in it is closely related to the transportational function." McKenzie, 458 Mich. at 221, 580 N.W.2d 424, citing Putkamer, 454 Mich. at 636–637, 563 N.W.2d 683. Because the vehicle in Putkamer was stationary, we examined whether the activity the plaintiff was engaged in—entering a vehicle in order to travel in it—was closely related to the vehicle's transportational function. And, properly understood, McKenzie itself followed this same mode of analysis. In applying its new test, the Court stated:
If we apply this test here, it is clear that the requisite nexus between the injury and the transportational function of the motor vehicle is lacking. At the time the injury occurred, the parked camper/trailer was being used as sleeping accommodations. This use is too far removed from the transportational function to constitute use of the camper/trailer "as a motor vehicle" at the time of the injury. [McKenzie, 458 Mich. at 226, 580 N.W.2d 424 (emphasis added).]
It is evident that, despite referring to the "nexus between the injury and the transportational function of the motor vehicle," the McKenzie Court's analysis of the second step of the Putkamer framework was focused on whether the activity giving rise to the injury—sleeping in a parked camper/trailer—was closely related to the vehicle's transportational function. We believe this is the proper inquiry in the second step of the Putkamer framework in cases involving parked motor vehicles.
In this case, it is undisputed that plaintiff was injured while unloading personal items from his vehicle upon arrival at his destination. We believe the conveyance of one's belongings is also closely related to— if not an integral part of—the transportational function of motor vehicles. Lending support to our interpretation of the statutory language is that "the dictionary definition of 'vehicle' is 'any device or contrivance for carrying or conveying persons or objects, [especially] over land or in space ....' " We have little difficulty concluding that a person who is engaged in the activity of unloading his or her personal effects from a vehicle upon arrival at a destination is using the vehicle for its transportational function, i.e., for the conveyance of persons or objects from one place to another.
See Walega v. Walega, 312 Mich.App. 259, 272, 877 N.W.2d 910 (2015) (finding that an injury that occurred while the plaintiff was using a truck to move or transport a very heavy safe was closely related to the transportational function of the vehicle).
McKenzie, 458 Mich. at 219, 580 N.W.2d 424 (emphasis added), citing Webster's New World Dictionary(3d college ed.). Also supporting our conclusion is the fact that the Uniform Motor Vehicle Accident Reparations Act, from which the "use of a motor vehicle as a motor vehicle" limitation in § 3105(1) originated, see McKenzie, 458 Mich. at 217–218, 580 N.W.2d 424, citing Thornton v. Allstate Insurance Co., 425 Mich. 643, 657, 391 N.W.2d 320 (1986), provides limited coverage for injuries arising from conduct in the course of loading and unloading a vehicle. See Uniform Motor Vehicle Accident Reparations Act (UMVARA), § 1(a)(6) ; 14 ULA 43–44 (2005) (defining "maintenance or use of a motor vehicle" as "maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, ... conduct in the course of loading and unloading the vehicle" if "the conduct occurs while occupying, entering into, or alighting from it"). From this, we can deduce that the drafters of the UMVARA believed that a vehicle is being used as a motor vehicle, i.e., for transportational purposes, during at least some portions of the loading and unloading process.
Finally, it is worth noting that if we agreed with the Court of Appeals that the transportational function requirement bars coverage for injury occurring during loading or unloading activities, see Kemp, unpub. op. at 3, we would render the second clause of MCL 500.3106(1)(b) nugatory—something courts should strive to avoid. See Johnson v. Recca, 492 Mich. 169, 177, 821 N.W.2d 520 (2012) ("[C]ourts 'must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.' "), quoting State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644 N.W.2d 715 (2002).
The Court of Appeals, in reaching a contrary conclusion, relied heavily on Shellenberger v. Ins. Co. of North America, stating as follows:
[T]he removal of personal effects from a parked vehicle ... "cannot be said to result from some facet particular to the normal functioning of a motor vehicle. The need to make similar movements in order to reach for [personal effects] routinely occurs in offices, airports, homes, conference rooms, courtrooms, restaurants, and countless other settings .... The fact that plaintiff's movement in reaching for [his personal effects] occurred in the interior of the truck does not transform the incident into a motor vehicle accident for no-fault purposes."[ ]
Kemp, unpub. op. at 3, quoting Shellenberger v. Ins. Co. of North America, 182 Mich.App. 601, 605, 452 N.W.2d 892 (1990) (second and third alterations in original).
We find Shellenberger's reasoning to be troubling for the following reasons. First, while it appropriately focuses on the activity the plaintiff was engaged in at the time of the injury—for example, moving a briefcase in Shellenberger and unloading personal effects from a parked vehicle in this case—the proper inquiry under McKenzie is whether that activity was closely relatedto the vehicle's transportational function. There is no requirement that the activity at issue "result from" the vehicle's transportational function—that requirement would confuse the transportational function and causation inquiries. And, more importantly, Shellenberger erroneously conflates transportational function with "some facet particular to the normal functioning of a motor vehicle." Contrary to Shellenberger's suggestion, Thornton does not require that the type of movements made or the injuries suffered be unique to motor vehicles or that they may only occur in a motor vehicle. Instead, as noted above, the question at this stage is simply whether the activity plaintiff was engaged in at the time of the injury was closely related to the vehicle's transportational function. That the injury could have occurred elsewhere is of no moment.
See note 36 of this opinion.
Shellenberger, 182 Mich. App. at 605, 452 N.W.2d 892.
See Thornton, 425 Mich. at 643, 391 N.W.2d 320.
This is not the first time we have rejected Shellenberger's analysis. In McCarthy v. Allstate Ins. Co., the Court of Appeals, after quoting the same passage from Shellenberger, observed that "the movements that [the claimant] made to lift [a box of pasties]—twisting, turning, reaching behind her, attempting to lift the box—could have occurred in her home, her place of work, and 'countless other settings where no-fault insurance does not attach.' " The McCarthy Court held that the causation requirement was not satisfied, stating as follows:
McCarthy v. Allstate Ins. Co., unpublished per curiam opinion of the Court of Appeals, issued June 4, 1999 (Docket No. 212629), p. 4, 1999 WL 33441273.
We therefore conclude that, regardless of whether an item is being loaded, unloaded, or merely moved around within the vehicle, an injury resulting from the movement of a person reaching for or handling that item is not sufficiently connected causally to the use of the vehicle to transport the item. Stated differently, we conclude that although McCarthy's injury occurred when unloading her vehicle and therefore arose out of her use of that vehicle as a motor vehicle, the injury resulted not from any circumstance peculiar to motor vehicles but from the act of lifting the box of pasties. As the Shellenberger panel noted, similar movements are made in a wide variety of settings, and we conclude that the fact that McCarthy's injury occurred inside a vehicle does not provide a sufficient causal connection. Simply put, we conclude that the vehicle in this case was merely the situs of injury and not the cause of it.[ ]
Id.
On appeal, we reversed the Court of Appeals' analysis and held that the "plaintiff established a causal link between her injury and the motor vehicle. The box of pasties she was unloading from her car snagged on the front seat and she hurt her back trying to free the box up to lift it out." Having rejected Shellenberger's analysis on two separate occasions, we now overrule it to the extent that it is inconsistent with our opinion today.
McCarthy v. Allstate Ins. Co., 462 Mich. 860, 613 N.W.2d 719 (2000), citing Putkamer, 454 Mich. 626, 563 N.W.2d 683.
We hold that unloading property from a vehicle upon arrival at a destination constitutes use of a motor vehicle as a motor vehicle and satisfies the transportational function requirement. In the present case, plaintiff testified that he sustained an injury while unloading his belongings from his vehicle upon arriving at his house. As a result, plaintiff satisfied the transportational function requirement as a matter of law.
We do not address whether unloading activity occurring some period of time after the vehicle arrives at a destination satisfies the transportational function requirement because the issue is not before us in this case.
D. STEP THREE: CAUSAL RELATIONSHIP
Finally, we must consider whether "the injury had a causal relationship to the parked motor vehicle that [was] more than incidental, fortuitous, or but for." In Thornton, we adopted the following causation test set forth in Kangas v. Aetna Casualty & Surety Co. :
Putkamer, 454 Mich. at 636, 563 N.W.2d 683.
"[T]here ... must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."[ ]
Thornton, 425 Mich. at 650–651, 391 N.W.2d 320, quoting Kangas v. Aetna Cas. & Surety Co., 64 Mich. App. 1, 17, 235 N.W.2d 42 (1975) ; see also Putkamer, 454 Mich. at 635–636, 563 N.W.2d 683.
After noting "a significant difference between the contractual language construed in Kangas —'arising out of the use of a motor vehicle'—and the statutory language at issue [in Thornton ]: 'arising out of the use of a motor vehicle as a motor vehicle,' " we concluded that there can be no recovery of no-fault PIP benefits unless the causal connection between the injury and the use of a motor vehicle as a motor vehicle "is more than 'but for,' incidental, or fortuitous."
Thornton, 425 Mich. at 656–657, 391 N.W.2d 320.
Id. at 659–660, 391 N.W.2d 320.
In Thornton, as noted previously, we explained that " '[e]ach of the exceptions to the parking exclusion ... describes an instance where, although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle.' " We have already concluded above that plaintiff created an issue of fact that his conduct in unloading his vehicle upon arrival at his destination falls within the parked motor vehicle exception contained in the second clause of § 3106(1)(b). And we have concluded that, as a matter of law, plaintiff was using his vehicle as a motor vehicle, i.e., for a transportational purpose, when he was unloading his property from it. All that is left, then, is to determine whether plaintiff's injury had a causal relation to his conduct in unloading his vehicle that was more than incidental, fortuitous, or but for.
Id. at 659, 391 N.W.2d 320, quoting Miller, 411 Mich. at 640–641, 309 N.W.2d 544.
It is important to note that the three steps of the Putkamer framework are not discrete inquiries. We recognized as much in McKenzie, when we instructed that "what constitutes use of a motor vehicle 'as a motor vehicle' also figures in a causation analysis, i.e., whether an injury's relation to the use of a motor vehicle as a motor vehicle is more than but for, incidental, and fortuitous." McKenzie, 458 Mich. at 222 n. 8, 580 N.W.2d 424, quoting Thornton, 425 Mich. at 661, 391 N.W.2d 320 (quotation marks omitted). In other words, the second and third steps bear an obvious logical relationship to one another.
We believe that plaintiff's injury—suffered while he was unloading his property from his vehicle upon his arrival home—was foreseeably identifiable with the normal use of the vehicle. The parked motor vehicle exception contained in the second clause of § 3106(1)(b) has its own causation component. See MCL 500.3106(1)(b) (stating that "the injury was a direct resultof physical contact") (emphasis added). Having already concluded that plaintiff has established a question of fact regarding whether he met this causation requirement, we also conclude that he has raised a question of fact regarding whether his injury had a causal relation to the use of a motor vehicle as a motor vehicle that was more than incidental, fortuitous, or but for.
We decline the dissent's invitation to reconsider whether Putkamer's causation requirement is consistent with the plain language of § 3106(1)(b) when no party has asked us either to overrule Putkamer's causation requirement or to grant leave to appeal on this ground.
IV. CONCLUSION
We hold that plaintiff created an issue of fact regarding whether he satisfied the parked motor vehicle exception in § 3106(1)(b) and the corresponding causation requirement of the three-step framework used to analyze PIP coverage for injuries related to parked motor vehicles. And we hold as a matter of law that plaintiff satisfied the transportational function requirement. Therefore, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with this opinion.
Bridget M. McCormack, Richard H. Bernstein, Joan L. Larsen, JJ., concur.
Zahra, J. (dissenting).
In this no-fault action arising from plaintiff's interaction with items in a parked vehicle, the majority concludes "that plaintiff created an issue of fact regarding whether he satisfied the parked motor vehicle exception in MCL 500.3106(1)(b) and the corresponding causation requirement." The majority also concludes "as a matter of law that plaintiff satisfied the transportational function requirement." I respectfully dissent. I would decide this case on the basis of MCL 500.3106(1)(b) alone and hold that plaintiff has failed to establish a genuine factual basis from which to conclude that "the injury was a direct result of physical contact with... propertybeing lifted onto or lowered from the vehicle in the loading or unloading process."
Ante at 537–38.
Ante at 537–38.
MCL 500.3106(1)(b) (emphasis added).
Further, I would take this opportunity to reexamine Putkamer v. Transamerica Ins. Corp. of America and its progeny. In my view, the causation prong of Putkamer's analytical framework does not find its origin in the plain language of MCL 500.3106, and caselaw addressing the parked vehicle provision, over the years, has drifted well beyond the language of the no-fault act, MCL 500.3101 et seq. This case makes clear that the third prong, i.e., the causation prong, of Putkamer's general test cannot apply to injuries arising from parked vehicles under MCL 500.3106(1)(b). And because this error of statutory interpretation will often reoccur, the most prudent action at this time would be to grant plaintiff's application and, with the benefit of full briefing and argument, reexamine the operation of MCL 500.3106 and the vitality of Putkamer. I believe that failing to correct the misinterpretation of MCL 500.3106 will "impose far more injury upon the judicial process than any effect associated with our decision to apply the policy decisions of the Legislature instead of the policy decisions of this Court ...."
Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 635–636, 563 N.W.2d 683 (1997).
Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 183, 615 N.W.2d 702 (2000).
Under Michigan's no-fault insurance act and in regard to this case, "[a]ccidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless," as set forth in MCL 500.3106(1)(b), "the injury was a direct result of physical contact with... propertybeing lifted onto or lowered from the vehicle in the loading or unloading process." In this case, plaintiff sustained injury while unloading personal belongings from his parked vehicle. He testified: "I leaned in the vehicle, picked up my items, brought them outside as I twisted to set them down. That's when I heard bang, stuff fell to the ground, I fell in the truck." For purposes of this appeal, I accept the majority's characterization of plaintiff's testimony "that he was in physical contact with his property and lowering it from the vehicle when he sustained the injury."
MCL 500.3106(1) (emphasis added).
Ante at 540.
Regardless of whether the term "property" is afforded its plain meaning as the majority posits or its contextual meaning of "cargo or freight" as first suggested by defendant on appeal in this Court, this term is not the focal point of this case. The disputed statutory language is whether "the injury was a direct resultof physical contact with ... property being lifted onto or lowered from the vehicle in the loading or unloading process." On this point, the majority concludes that plaintiff's contact with his briefcase, overnight bag, thermos, and unfoldable lunch bags while unloading them from his vehicle creates a genuine issue of material fact as to whether this property caused the injury alleged. In support of its conclusion, the majority relies on caselaw that, as summarized by the majority, requires that "plaintiff's injury [be] caused (or alleged to be caused) by the kinetic energy, weight, or some other physical property associated with the thing being loaded or unloaded from a parked motor vehicle." In this case, while plaintiff was in physical contact with the property, there is no evidence to indicate that physical contact with the property—the "kinetic energy, weight, or some other physical property associated with the thing being loaded or unloaded"—caused the injury, rather than the twisting action of placing the property on the ground.
See a nte at 540.
Defendant presents a novel and intriguing argument that the phrase "property being lifted onto or lowered from the vehicle in the loading or unloading process" must be read in relation to the preceding phrase—"equipment permanently mounted on the vehicle, while the equipment was being operated or used." Defendant asserts that MCL 500.3106(1)(b) thus refers only to cargo or freight that is being "lifted onto or lowered from the vehicle in the loading or unloading process," not to personal items being removed from a vehicle's interior or trunk.
Notably, this argument is contrary to Arnold v. Auto–Owners Ins. Co., 84 Mich.App. 75, 79–80, 269 N.W.2d 311 (1978), in which the Court of Appeals held that MCL 500.3106(1)(b) contains two independent clauses and provides coverage when the injury was the direct result of physical contact with either (1) "equipment permanently mounted on [the] motor vehicle while [the] equipment was being operated or used," or (2) "property being lifted onto or lowered from [the] motor vehicle in the loading or unloading process." (Emphasis omitted.) Defendant has not acknowledged this decision, but I question whether Arnold was correctly decided.
MCL 500.3106(1)(b) contains two clauses, but they are not entirely independent of one another. Were the clauses actually independent in application, the Legislature would have separated these clauses and created a fourth parked vehicle exception under MCL 500.3106(1) instead of including the two clauses in the single exception under MCL 500.3106(1)(b). Stated differently, even though the two clauses are contained in one exception and are separated by a disjunctive term, the clauses may nonetheless be read together to provide contextual meaning to the term "property" as it is used in MCL 500.3106(1)(b). And when read together, a cogent argument can be made that, in context, "property being lifted onto or lowered from the vehicle in the loading or unloading process" refers to property being lifted onto or lowered from a vehicle while using or operating equipment permanently mounted on the vehicle. Despite my openness to defendant's argument, I agree with the majority that defendant failed to preserve this issue. See ante at 540 n. 26.
MCL 500.3106(1)(b) (emphasis added).
Ante at 540–41.
Ante at 540–41.
See Dinkins v. State Farm Mut. Auto Ins. Co., unpublished per curiam opinion of the Court of Appeals, issued December 13, 2012 (Docket No. 307363), p. 3, 2012 WL 6217154 ("There are no characteristics about a bag containing DVDs that would cause an ordinary person to injure oneself in the process of unloading it from a parked car. If plaintiff's bag was peculiarly heavy or unwieldy in any way, it was not clearly set forth in the record before the trial court when it ruled on defendant's motion for summary disposition.").
In my view, plaintiff's testimony that he was in physical contact with the property he was removing from his truck when he sustained the injury does not establish that "the injury was a direct resultof physical contact with ... property ...." Plaintiff's testimony indicated that the injury occurred while he was turning and twisting to set down his personal items. This suggests that the act of unloading the property caused the injury, rather than plaintiff's contact with the property. While plaintiff testified that he was unloading his "briefcase, overnight bag, thermos[, and] ... unfoldable lunch bags," all of which were bound together, he made no assertion that any or all of these items caused his injury. Therefore, the record presented to this Court does not support the conclusion that there exists a genuine issue of material fact regarding whether plaintiff's injury was a "direct result" of his physical contact with the property he was unloading from his truck.
MCL 500.3106(1)(b) (emphasis added).
I disagree with the majority's suggestion that the affidavit from Dr. Surinder Kaura was not properly considered by the trial court. Rather, as the Court of Appeals majority explained, "viewing the physician's affidavit in the light most favorable to plaintiff does not change the fact that plaintiff's injury did not arise 'out ... of the ownership, operation[,] maintenance, or use of the parked motor vehicle as a motor vehicle.' " Kemp v. Farm Bureau Gen. Ins. Co., unpublished per curiam opinion of the Court of Appeals, issued May 5, 2015 (Docket No. 319796), p. 3 n. 2, 2015 WL 2091350. After explaining that he accepted plaintiff's version of events, Kaura stated, "[i]t is my opinion that his calf and low back injuries arose out of the process of unloading the items as Mr. Kemp described, and were not merely incidental to the unloading process." The trial court was correct that Kaura's affidavit adds nothing to plaintiff's testimony and is therefore irrelevant. Further, "the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions." Carson Fischer Potts & Hyman v. Hyman, 220 Mich.App. 116, 122, 559 N.W.2d 54 (1996). Kaura's affidavit essentially parrots plaintiff's allegations and concludes that the exception in MCL 500.3106(1)(b) has been satisfied. In my view, this is improper evidence asserting a legal standard and conclusion.
MCL 500.3106(1)(b). Contrary to any implication in the majority opinion, I would not categorically exclude from no-fault coverage lifting or carrying injuries occurring during the loading or unloading process. I would only exclude those injuries that do not "directly result" from physical contact with the property. In the absence of a showing that the injury "directly resulted" from physical contact with the property, any injury that happens to occur while a person is lifting anything, even a feather, from a vehicle would be covered. As discussed next in this opinion, this interpretation not only ignores the "direct result" requirement but also renders the statute arbitrary in its application.
The majority fails to attach independent meaning to the phrase "direct result." That is, the majority suggests that a plaintiff establishes that his or her injury was a "direct result" merely by presenting evidence that the plaintiff was injured whilein physical contact with property that he or she was loading or unloading from a vehicle. But the statute plainly requires that the injury be a direct resultof physical contact with property that is being loaded or unloaded. A person struck by lightning while in physical contact with property that he or she is loading or unloading cannot be said to be injured as a direct resultof physical contact with that property. In both legal and common parlance, the word "direct" in this context means to be "[f]ree from extraneous influence; immediate," and "result" commonly means "consequence, effect, or conclusion." Reading these terms together, one gleans that a plaintiff's injury must have arisen from an uninfluenced and immediate consequence of physical contact with property being lifted onto or lowered from the vehicle in the loading or unloading process. But, again, plaintiff has presented no evidence at all that physical contact with his property caused his injury.
Black's Law Dictionary(10th ed.). See also Webster's New World College Dictionary(5th ed.) ("with nothing or no one in between; immediate; close, firsthand, or personal [direct contact, direct knowledge]"); Random House Webster's College Dictionary(2001) ("without intermediary agents, conditions, etc.; immediate: direct contact"); Merriam–Webster's Collegiate Dictionary(11th ed.) ("marked by absence of an intervening agency, instrumentality or influence").
Black's Law Dictionary(10th ed.). See also Webster's New World College Dictionary(5th ed.) ("to happen or issue as a consequence or effect"); Random House Webster's College Dictionary(2001) ("to arise or proceed as a consequence of actions, premises, etc.; be the outcome"); Merriam–Webster's Collegiate Dictionary(11th ed.) ("something that results as a consequence, issue, or conclusion").
Perhaps if the statute provided instead that coverage is afforded for an injury that in any way results from the loading or unloading process, I would be inclined to agree with the majority. But it does not, and the majority has not identified any evidence that plaintiff's injury was the direct result of physical contact with his property. Even plaintiff's expert could only conclude that plaintiff's "calf and low back injuries arose out of the process of unloading the items as [plaintiff] described ...." Simply put, an injury arising out of the process of unloading items from a vehicle does not establish that "the injury was a direct result of physical contact with ... property ...."
Likewise, the Court of Appeals' dissenting judge ignored the statutory requirement that the injury directly result from physical contact with property, relying only on plaintiff's "very act—removing items from the vehicle and attempting to set them down—that was the cause of the alleged injury." Kemp v. Farm Bureau Gen. Ins. Co. of Mich., unpublished per curiam opinion of the Court of Appeals, issued May 5, 2015 (Docket No. 319796), 2015 WL 2091350 ( Beckering , P.J., dissenting), p. 6.
MCL 500.3106(1)(b). Further, MCL 500.3106(1)(b) plainly requires that the injury be a direct result of physical contact with property that is being loaded or unloaded. If, as the majority seems to conclude, MCL 500.3106(1)(b) encompasses injuries that occur as a result of any physical contact with property being loaded or unloaded from a vehicle, the requirement that there be physical contact with property becomes very artificial. Under the majority's interpretation, if a claimant is in the process of loading or unloading a vehicle and is injured as the claimant leans into the vehicle but before making contact with the property, the claimant is not entitled to PIP benefits. On the other hand, a claimant is entitled to PIP benefits if the claimant is ever so slightly touching property being loaded or unloaded from the vehicle when the injury results. Simply stated, the majority's interpretation creates a seemingly arbitrary line that encompasses injuries during the loading or unloading process only if these injuries happen to occur when a claimant is in physical contact with the property being loaded or unloaded. By giving plain meaning to the "directly results" language of MCL 500.3106(1)(b) as it is related to the physical-contact requirement, a claimant is entitled to PIP benefits under the parked vehicle provision when contact with the property in some fashion causes the injury.
There exists published caselaw from the Court of Appeals consistent with my interpretation of MCL 500.3106(1)(b). For instance, in Celina Mut. Ins. Co. v. Citizens Ins. Co., the Court of Appeals sustained a claim under MCL 500.3106(1)(b) when, in the process of loading a semitrailer, "the crane operator accidentally knocked a bundle [of steel tubing] off a previously stacked pile, and that bundle rolled into and injured [the claimant]." Another example is Adanalic v. Harco Nat'l Ins. Co., in which the claimant was seriously injured while unloading a pallet from a truck onto a semitrailer. Specifically, while the claimant "was pulling the pallet with a belt," "[t]he ramp connecting the trailer and the [truck] collapsed, which caused the pallet to fall to the ground, which, in turn, caused [the claimant] to fall to the ground." The panel noted that "the statute does not require that the property, itself, inflict the injuries. It only requires that the injuries directly result from physical contact with the property." Therefore, reasoned the panel, "the statute is satisfied ... where [the claimant's] physical contact with the pallet caused him to fall to the ground, directly resulting in his injuries." In sum, these cases were sustained because the property directly contributed to the injury.
Celina Mut. Ins. Co. v. Citizens Ins. Co., 136 Mich.App. 315, 355 N.W.2d 916 (1984).
Id. at 317–318, 355 N.W.2d 916.
Adanalic v. Harco Nat'l Ins. Co., 309 Mich.App. 173, 870 N.W.2d 731 (2015).
Id. at 182, 870 N.W.2d 731 (quotation marks omitted).
Id. (quotation marks omitted).
Id. (quotation marks omitted).
In Ritchie v. Federal Ins. Co., 132 Mich.App. 372, 347 N.W.2d 478 (1984), the Court of Appeals sustained a claim under MCL 500.3106(1)(b) even though it was questionable whether the injury was a "direct result" of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process. The claimant "was injured when the stairs collapsed under him as he held a block of ice over his head while in the process of loading his truck." Id. at 375, 347 N.W.2d 478. The panel explained that "[t]he stairway broke because of the combined weight of plaintiff and the block of ice," and noted that "[d]efendant's brief admits that '[l]ogic would dictate that the stairway gave way under the weight of the plaintiff and the block of ice.' " Id. (third alteration in original). The panel concluded that "applying the commonly approved usage of the language, 'physical contact' with the 'property being lifted' during the loading process could arguably have 'directly resulted' in causing plaintiff's injury. The weight of the ice may have been the straw that broke the camel's back." Id.
Even though the evidence of a "direct injury" in Ritchie was somewhat anecdotal, the panel sustained the claim noting that at the least " 'the property being lifted' ... could arguably have 'directly resulted' in causing plaintiff's injury." Id. (emphasis added). In this case, plaintiff has only established that his injury directly resulted from his physical movements while he happened to be unloading property from his vehicle.
II. PUTKAMER v. TRANSAMERICA INS. CORP. OF AMERICA
As previously mentioned, I would take this opportunity to reexamine Putkamer and its progeny. In my view, there is little question that the third prong of Putkamer's general test cannot apply to injuries arising from parked vehicles under MCL 500.3106(1)(b).
Putkamer, 454 Mich. 626, 563 N.W.2d 683.
In Putkamer, the "plaintiff was getting into her vehicle on the driver's side, [and] she fell on the ice and was injured." Citing our decision in Winter v. Auto Club of Mich., we explained that "[w]here the motor vehicle is parked, the determination whether the injury is covered by the no-fault insurer generally is governed by the provisions of subsection 3106(1) alone." We further explained that "[t]here is no need for an additional determination whether the injury is covered under subsection 3105(1)." Though it seems clear from that language that Putkamer embraced the proposition that MCL 500.3105(1) is not controlling in parked vehicle cases, the Court then explained that the "underlying policy of the parked motor vehicle exclusion ... is to ensure that an injury that is covered by the no-fault act involves use of the parked motor vehicle as a motor vehicle."
Id. at 628, 563 N.W.2d 683.
Winter v. Auto . Club of Mich., 433 Mich. 446, 446 N.W.2d 132 (1989).
Putkamer, 454 Mich. at 632, 563 N.W.2d 683, citing Winter, 433 Mich. at 457, 446 N.W.2d 132.
Putkamer, 454 Mich. at 632–633, 563 N.W.2d 683, citing Winter, 433 Mich. at 458 n. 10, 446 N.W.2d 132.
MCL 500.3105(1) provides, "Under personal protection insurance 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, subject to the provisions of this chapter."
Putkamer, 454 Mich. at 633, 563 N.W.2d 683.
This purported underlying policy was first explained in Miller v. Auto–Owners Ins. Co., which involved a claim for accidental bodily injury arising out of the maintenance of a motor vehicle, although the vehicle was parked at the time of the accident. Rather than addressing the relevant statutory text, the Court in Miller engaged in "an assessment of the respective policies appearing from the requirement of coverage in § 3105(1) and the exclusion from that required coverage for parked vehicles in § 3106 as they bear upon the scope of coverage intended by the Legislature." The Court opined that the policy underlying the parked vehicle exclusion was that
Miller v. Auto–Owners Ins. Co., 411 Mich. 633, 309 N.W.2d 544 (1981).
Id. at 638, 309 N.W.2d 544.
[e]ach of the exceptions to the parking exclusion thus describes an instance where, although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle. The underlying policy of the parking exclusion is that, except in three general types of situations, a parked car is not involved in an accident as a motor vehicle.[ ]
Id. at 640–641, 309 N.W.2d 544.
The Miller Court held that because "[t]he policies underlying § 3105(1) and § 3106 thus are complementary rather than conflicting," "[c]ompensation is thus required by the no-fault act without regard to whether [the plaintiff's] vehicle might be considered 'parked' at the time of injury." By adopting Miller's dubious assertions of "underlying policies" of the no-fault act, the Putkamer Court opened itself to further departure from the textual basis of the law. While there is some textual basis under MCL 500.3106(1) to require that the injury be " 'directly related' to the vehicle's character as a motor vehicle," i.e., "parked vehicle as a motor vehicle," there is no basis to conclude "that subsection 3106(1), like subsection 3105(1), requires that, in order to recover, the injury must have a causal relationship to the motor vehicle that is more than incidental, fortuitous, or but for."
Id. at 641, 309 N.W.2d 544.
The following portion of Miller has been effectively disavowed:
Section 3106(b) [now MCL 500.3106(1)(b) ] recognizes that some parked vehicles may still be operated as motor vehicles, creating a risk of injury from such use as a vehicle. Thus a parked delivery truck may cause injury in the course of raising or lowering its lift or the door of a parked car, when opened into traffic, may cause an accident. Accidents of this type involve the vehicle as a motor vehicle. [Miller, 411 Mich. at 640, 309 N.W.2d 544, disavowal recognized by LeFevers v. State Farm Mut. Auto Ins. Co., 493 Mich. 960, 828 N.W.2d 678 (2013).]
Further, this Court has ordered argument to determine whether Miller is viable precedent and, if so, whether it should be overturned. Spectrum Health Hosp. v. Westfield Ins. Co., 498 Mich. 969, 873 N.W.2d 303 (2016).
Putkamer, 454 Mich. at 634, 563 N.W.2d 683.
Putkamer, 454 Mich. at 635, 563 N.W.2d 683.
Putkamer broadly held that
where a claimant suffers an injury in an event related to a parked motor vehicle, he must establish that the injury arose out of the ownership, operation, maintenance, or use of the parked vehicle by establishing that he falls into one of the three exceptions to the parking exclusion in subsection 3106(1). In doing so under § 3106, he must demonstrate that (1) his conduct fits one of the three exceptions of subsection 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.[ ]
Id. at 635–636, 563 N.W.2d 683.
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In my opinion, the Putkamer test does not bear sufficient resemblance to the actual statutory text at issue. MCL 500.3106(1) provides that:
Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
(a) The vehicle was parked in such a way as to cause an unreasonable risk of the bodily injury which occurred.
(b) ... [T]he 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) ... [T]he injury was sustained by a person while occupying, entering into, or alighting from the vehicle.
I agree with Putkamer to the extent that it concludes that a plaintiff who meets an exception contained in MCL 500.3106(1)(a) to (c) that arises out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehiclehas established an accidental bodily injury. But, because the Legislature included a causal component in MCL 500.3106(1)(b), i.e., "direct result," I see no statutory support for the proposition that a claimant must additionally establish that the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for. At a minimum, I would limit Putkamer and its progeny and clarify that the third prong of Putkamer's general test does not apply to injuries arising from parked vehicles under MCL 500.3106(1)(b). With that said, I believe the most prudent action at this time would be to grant plaintiff's application and, with the benefit of full briefing and argument, reexamine the operation of MCL 500.3106 and the vitality of Putkamer.
Stephen J. Markman, C.J., Kurtis T. Wilder, J., agrees.