GLENN HEPNER V AETNA CASUALTY
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STATE OF MICHIGAN
COURT OF APPEALS
GLENN HEPNER, Guardian and Conservator of the
Estate of HENRY HEPNER,
UNPUBLISHED
January 7, 1997
Plaintiff-Appellee,
v
No. 189083
Macomb Circuit Court
LC No. 92-000513
AETNA CASUALTY & SURETY CO.,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Holbrook, Jr., and E.R. Post,* JJ.
PER CURIAM.
Defendant appeals as of right from the judgment entered on a jury verdict for plaintiff in this
action for breach of insurance contract under the Michigan No-Fault Insurance Act, MCL 500.3101 et
seq.; MSA 24.13101 et seq. On appeal, defendant argues that the trial court erred in denying its
motions for summary disposition pursuant to MCR 2.116(C)(10), judgment notwithstanding the verdict,
and a new trial. We affirm.
On March 3, 1991, Henry Hepner arrived at the Assembly Line Lounge in Shelby Township at
approximately 12:00 p.m., had one drink, and then left. Later that afternoon, Hepner returned to the
bar for another drink, consumed it, and left an estimated five minutes later. At approximately 3:00 p.m.,
the bar owner and others found Hepner unconscious in the parking lot lying on the ground next to the
driver’s side door of his car, which was open. Hepner was lying partially under his vehicle. Hepner’s
keys were found lying next to his body. Hepner incurred a closed head injury and a skull fracture from
his accident in the parking lot, which rendered him incapacitated.
On February 4, 1992, plaintiff filed this action against defendant, claiming that it failed to honor
plaintiff’s claim for payment under Hepner’s no-fault automobile insurance policy. On July 8, 1994, the
jury found that Hepner’s injuries arose while he was occupying, entering into, or alighting from his car.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Thus, Hepner was entitled to no-fault benefits pursuant to MCL 500.3106(1)(c); MSA
24.13106(1)(c).
On appeal, defendant first advances that the trial court erred in denying its MCR 2.116(C)(10)
motion for summary disposition because plaintiff failed to produce evidence to establish a triable issue of
fact regarding whether Hepner’s injuries arose in the course of occupying, entering into, or alighting from
his vehicle. We disagree. Summary disposition pursuant to MCR 2.116(C)(10) 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.” This Court considers the factual
support for the claim, giving the benefit of any reasonable doubt to the nonmoving party to determine
whether a record might be developed which might leave open an issue upon which reasonable minds
could differ. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866
(1995). When deciding a motion for summary disposition, a court must consider the pleadings,
depositions, affidavits, admissions and other documentary evidence available to it. Patterson v
Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). This Court reviews de novo a decision
regarding a motion for summary disposition pursuant to MCR 2.116(C)(10). Jackhill, supra.
The no-fault insurance act 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.” MCL 500.3105(1); MSA 24.13105(1); Gordon v Allstate Ins Co, 197 Mich App 609,
611; 496 NW2d 357 (1992). Generally, injuries sustained from parked motor vehicles are not
compensable under the no-fault act. Id. In order to recover no-fault insurance benefits for injuries
sustained in connection with a parked vehicle, a party’s injuries must fall under one of the categories
delineated in § 3106 of the no-fault insurance act, which provides, in relevant part:
(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:
***
(c) [T]he injury was sustained by a person while occupying, entering into, or
alighting from the vehicle. [MCL 500.3106(1)(c); MSA 24.13106(1)(c).]
As a general rule, an injured party is not entitled to benefits under § 3106(1)(c) of the no-fault
act where evidence shows that he was merely preparing to enter his vehicle. Hunt v Citizens Ins Co,
183 Mich App 660, 664; 455 NW2d 384 (1990); see also King v Aetna Casualty & Surety Co,
118 Mich App 648, 651; 325 NW2d 528 (1982). Instead, evidence must show that the claimant was
injured while actually in the process of entering into his automobile. Hunt, supra; see also Teman v
Transamerica Ins Co of Michigan, 123 Mich App 262, 265; 333 NW2d 244 (1983).
Upon reviewing the evidence and granting plaintiff the benefit of any reasonable doubt, we find
that the trial court’s decision to deny defendant’s MCR 2.116(C)(10) motion for summary disposition
was correct because the circumstantial evidence submitted by plaintiff was sufficient to establish the
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existence of a triable issue regarding whether Hepner was injured in the process of entering his car.
Hepner’s body was discovered lying on the ground between his car door and his car. Furthermore, he
was found lying partially underneath his car. The driver’s side door was found open and Hepner’s keys
were discovered lying next to him in the snow. Evidence also showed that the parking lot of the
Assembly Line Lounge was icy on the day Hepner was injured. Based on this evidence, reasonable
minds could conclude that Hepner was injured during the process of entering his car when he was
leaving the bar, perhaps by slipping on ice. While it might be possible to extrapolate other causes for
Hepner’s injuries from the evidence, plaintiff does not have the burden of rebutting every possible theory
that the evidence could support. Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App
482, 486; 502 NW2d 742 (1993). It is sufficient that, giving plaintiff the benefit of any reasonable
doubt, evidence submitted supported the conclusion that a record might be developed upon which
reasonable minds could differ concerning the issue of the cause of Hepner’s injuries.
Defendant further argues that the trial court erred in denying its motion for summary disposition
because plaintiff ultimately failed to plead or submit evidence to show that Hepner’s injuries were
causally connected to the use, maintenance, or ownership of his car. See MCL 500.3105(1); MSA
24.13105(1). It is not surprising that defendant would advance this argument, because our past cases
have required no-fault claimants desiring compensation for injuries pursuant to § 3106(1)(a)-(c) of the
no-fault act to make a dual showing (1) that their injuries fit the parked car exceptions as provided in
§3106, and (2) that their injuries were causally connected to the ownership, operation, maintenance, or
use of a motor vehicle, as required by §3105(1) of the no-fault act. See Teman, supra at 265-266;
King, supra at 651-652; Block v Citizens Ins Co of America, 111 Mich App 106, 109; 314 NW2d
536 (1981). However, this Court has since stated:
As a threshold matter, we must dispel the notion asserted by defendant that
plaintiff must satisfy the provisions of both [§ 3105(1) and § 3106 of the no-fault act] in
order to be entitled to benefits . . . . In Winter v Automobile Club of Michigan, 433
Mich 446; 446 NW2d 132 (1989), our Supreme Court stated that it is unnecessary to
make separate determinations whether §§ 3105(1) and 3106 are fulfilled. Id., p 458, n
10 (overruling the conclusion that the Court previously made requiring satisfaction of
both sections as a prerequisite to recovery under § 3106). Thus, where an injury arises
from the use of a parked vehicle, if the circumstances under which the accident
occurred are such that they implicate one of the enumerated exceptions to the parked
vehicle exclusion, recovery may be had without consideration of whether the vehicle
was being used “as a motor vehicle” under § 3105(1). [Gordon, supra at 612.]
Thus, defendant’s argument regarding causation between the use of Hepner’s automobile and Hepner’s
injuries is without merit. Accordingly, we affirm the trial court’s order denying defendant’s MCR
2.116(C)(10) motion for summary disposition.
Defendant next argues that the trial court abused its discretion in denying its motion for judgment
notwithstanding the verdict, or, i the alternative, a new trial. We disagree. Judgment notwithstanding
n
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the verdict should be granted only when there is insufficient evidence to create an issue for the jury.
Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990). In reviewing a trial
court’s failure to grant a defendant’s motion for judgment notwithstanding the verdict, this Court
examines the testimony and all legitimate inferences that may be drawn in the light most favorable to the
plaintiff. If reasonable jurors could honestly have reached different conclusions, neither the trial court
nor this Court may substitute its judgment for that of the jury. Pakideh v Franklin Commercial
Mortgage Group, Inc, 213 Mich App 636, 639; 540 NW2d 777 (1995). The trial court’s decision to
grant or deny judgment NOV will not be reversed on appeal unless there was a clear abuse of
discretion. Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186-187;
466 NW2d 717 (1991).
Defendant also moved for a new trial on the basis that the jury’s verdict was against the great
weight of the evidence. See MCR 2.611(A)(1)(e). A verdict may be overturned on appeal only when
it was manifestly against the clear weight of the evidence, and this Court will accord substantial
deference to the trial court’s determination that a verdict was not against the great weight of the
evidence. Wischmeyer v Schanz, 449 Mich 469; 536 NW2d 760 (1995); Arrington v Detroit
Osteopathic Hospital, 196 Mich App 544, 560; 493 NW2d 492 (1992). The evidence in this case
amply supported plaintiff’s theory that Hepner was in the process of entering his car to leave the bar
when the accident occurred, possibly as a result of his slipping on ice as he attempted to take his seat
behind the wheel. Although one explanation that may be consistent with the circumstantial evidence is
that Hepner opened his car door after his accident, the evidence showed that Hepner was incapacitated
as a result of his injuries, thus making it unlikely that he opened the door after falling. We note that some
witnesses could not recall whether Hepner’s car door was open. However, since issues involving
credibility and circumstantial evidence were raised at trial, the jury was properly given the task of
deciding what weight to give witness testimony. Accordingly, we conclude that the jury’s verdict was
not against the great weight of the evidence and that the trial court did not abuse its discretion in denying
defendant’s motion for a new trial.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Edward R. Post
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