MICHAEL EUGENE DRAKE V CITIZENS INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL EUGENE DRAKE,
FOR PUBLICATION
February 23, 2006
9:00 a.m.
Plaintiff-Appellee,
v
No. 257800
Hillsdale Circuit Court
LC No. 03-000318-NF
CITIZENS INSURANCE COMPANY OF
AMERICA,
Defendant-Appellant.
Official Reported Version
Before: Zahra, P.J., and Murphy and Neff, JJ.
ZAHRA, J. (dissenting).
I respectfully dissent. Contrary to the majority, I find no inconsistency between
McKenzie v Auto Club Ins Ass'n, 458 Mich 214; 580 NW2d 424 (1998), and the express
language of MCL 500.3105 and 500.3106. I conclude plaintiff 's injuries did not arise out of the
use of a motor vehicle as a motor vehicle. I would reverse and remand for entry of judgment in
favor of defendant.
Sections 3105 and 3106 must be satisfied in order for plaintiff to prevail. Section
3105(1) precludes personal protection insurance unless the "accidental bodily injury aris[es] out
of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . . "
Section 3106 expressly precludes recovery for accidental bodily injury arising out of the
"ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle" unless one of
three statutorily defined exceptions exists. That § 3106 defines limited situations in which the
Legislature permitted recovery for accidental injury that arose while interacting with a parked
vehicle does not eviscerate the threshold question whether the injury arises out of the ownership,
operation, maintenance or use of a motor vehicle as a motor vehicle. The majority would, in
essence, ignore § 3105 whenever an injury relates to a parked vehicle. Such an interpretation
flies in the face of the well-established rules of statutory construction cited by the majority and
embraced by McKenzie.
I also disagree with the majority's conclusion that plaintiff 's injury arose out of the use of
a motor vehicle as a motor vehicle. The facts of this case cannot be distinguished from
Bialochowski v Cross Concrete Pumping Co, 428 Mich 219; 407 NW2d 355 (1987), which
McKenzie squarely rejected. Bialochowski involved a cement truck with a
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[p]ermanently attached . . . concrete pump and a thirty- to thirty-five-foot boom . .
. , which was used to pump concrete up to the elevated levels. [The] [p]laintiff
was injured in the course of his employment when the concrete pump exploded,
causing the boom to collapse upon [the] plaintiff, crushing him. At the time of
the accident, the truck was parked and stabilized. [Bialochowski, supra at 222223.]
The majority opinion concludes there is "a fundamental difference between Bialochowski
and the case at bar" solely because the vehicle in Bialochowski was stabilized. This distinction is
insignificant, particularly given that McKenzie found the holding in Bialochowski "utterly
antithetical to the language of § 3105 . . . ." McKenzie, supra at 224. Further, the vehicle here
first had to hydraulically extend its boom to the top of a silo, and only then, using three
independently powered augers, did it move feed through the boom and into the silo. "Where the
Legislature explicitly limited coverage under § 3105 to injuries arising out of a particular use of
motor vehicles—use 'as a motor vehicle'—a decision finding coverage for injuries arising out of
any other use, e.g., to pump cement, is contrary to the language of the statute." Id. Here, the
majority has improperly found coverage for injuries that arose out of use of a vehicle to pump
feed into a silo.
I would reverse the judgment entered in favor of plaintiff and remand for entry of
judgment in favor of defendant, because plaintiff 's injury clearly did not arise out of the use of a
motor vehicle as a motor vehicle. MCL 500.3105; McKenzie, supra.
/s/ Brian K. Zahra
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