DAVID RICHARD DION V WILLIAM MELVIN CHILDERS
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID RICHARD DION,
UNPUBLISHED
December 26, 2000
Plaintiff/Counter-DefendantAppellant,
v
No. 215958
Macomb Circuit Court
LC No. 96-002402-NI
WILLIAM MELVIN CHILDERS,
Defendant-Appellee,
and
MUTUAL SERVICE CASULATY INSURANCE
COMPANY OF ST. PAUL,
Defendant/Counter-PlaintiffAppellee.
Before: Bandstra, C.J., and Fitzgerald and D. B. Leiber*, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order granting Mutual Service’s motion
for summary disposition pursuant to MCR 2.116(C)(10). We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
Plaintiff’s uninsured car stalled out while he was driving. Before he could move it off the
road, defendant Childers’ came upon it. As he swerved to avoid it, he hit plaintiff. The trial
court granted judgment in favor of Childers’ no-fault insurance company, finding that plaintiff
was not entitled to personal injury protection benefits because his uninsured vehicle was involved
in the accident. MCL 500.3113(b); MSA 24.13113(b).
The trial court’s ruling on a motion for summary disposition is reviewed de novo. Gibson
v Neelis, 227 Mich App 187, 189; 575 NW2d 313 (1997). A motion brought under MCR
2.116(C)(10) tests the factual support for a claim. In ruling on such a motion, the trial court must
* Circuit judge, sitting on the Court of Appeals by assignment.
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consider not only the pleadings, but also depositions, affidavits, admissions and other
documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to
the nonmoving party, being liberal in finding a genuine issue of material fact. Summary
disposition is appropriate only if the opposing party fails to present documentary evidence
establishing the existence of a material factual dispute. Smith v Globe Life Ins Co, 460 Mich
446, 455; 597 NW2d 28 (1999).
The owner of a motor vehicle is generally required to maintain no-fault insurance on the
vehicle. MCL 500.3101(1); MSA 24.13101(1). A no-fault 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). A person is not entitled to
first-party “benefits for accidental bodily injury if at the time of the accident … [t]he person was
the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to
which the security required by section 3101 or section 3103 was not in effect.” MCL
500.3113(b); MSA 24.13113(b).
Plaintiff argues that his car was not involved in the accident because he was not an
occupant of the vehicle at the time he was injured. However, occupancy is relevant to
determining the priority of claims against insurers as provided in MCL 500.3114(4); MSA
24.13114(4) and MCL 500.3115(1); MSA 24.13115(1), see, e.g., Hackley v State Farm Mutual
Auto Ins Co, 147 Mich App 115, 118-119; 383 NW2d 108 (1985); Winters v Nat’l Indem Co,
120 Mich App 156, 159-160; 327 NW2d 423 (1982), and the priority of claims does not become
relevant until it is established that plaintiff is entitled to no-fault benefits. Winters, supra. In this
case, priority is not even an issue because plaintiff was not insured and thus Childers’ insurer is
the only insurance company potentially liable for payment of benefits. Thus, plaintiff has failed
to prove his claim of error due to the failure to cite relevant authority. Delta Twp v Eyde, 40
Mich App 485, 490; 198 NW2d 918 (1972), aff’d in part 389 Mich 549 (1973). Considering the
merits nonetheless, we find no error in the trial court’s ruling.
“A vehicle may be ‘involved in the accident’ even though the damage cannot be said to
have arisen out of the ownership, operation, maintenance, or use of that vehicle.” Turner v Auto
Club Ins Ass’n, 448 Mich 22, 35; 528 NW2d 681 (1995) (emphasis in original). “For a motor
vehicle to be involved in an accident, it must actively contribute to the accident. In other words,
there must be an ‘active link’ between the injury and the use of the motor vehicle as a motor
vehicle for the vehicle to be deemed ‘involved in the accident.’” Witt v American Family Ins Co,
219 Mich App 602, 606-607; 557 NW2d 163 (1996) (citations omitted). However, “physical
contact is not required to establish that the vehicle was ‘involved in the accident’ . . . .” Turner,
supra at 39.
In this case, plaintiff had been driving his car, which he knew was not in good working
order, it having stalled out before. He exited the car in order to push it off the road. Because it
did not have any lights, Childers didn’t see it until the last minute and swerved to avoid the
obstruction, which resulted in plaintiff’s being injured. Thus, while plaintiff was not injured by
his vehicle, the accident was caused by his vehicle, which therefore constituted an “active link”
in the events which led to his injury. See Wright v League Gen’l Ins Co, 167 Mich App 238,
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246; 421 NW2d 647 (1988). Therefore, the trial court did not err in concluding that plaintiff was
disqualified from receiving benefits under MCL 500.3113(b); MSA 24.13113(b).
We affirm.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Dennis B. Leiber
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