WESTFIELD INSURANCE COMPANY V KEN'S SERVICE (Dissenting Opinion)
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STATE OF MICHIGAN COURT OF APPEALS WESTFIELD INSURANCE COMPANY, FOR PUBLICATION March 8, 2012 Plaintiff-Appellee, v No. 300941 Antrim Circuit Court LC No. 10-008571-CK KEN S SERVICE and MARK ROBBINS, Defendants-Appellants. Before: SAWYER, P.J., and WHITBECK and M. J. KELLY, JJ. M. J. KELLY, J. (dissenting). Because I believe the trial court erred in its interpretation of the word upon in the subject underinsured motorist insurance policy, I would reverse its decision to grant summary disposition in favor of plaintiff Westfield Insurance Company (Westfield) and instead grant summary disposition in favor of defendants Ken s Service and Mark Robbins. Therefore, I must respectfully dissent. Robbins worked for Ken s Service as a tow truck driver. On the evening of the accident, Robbins was sent to tow a police vehicle out of a ditch. After pulling his tow truck to the shoulder of the highway, Robbins activated the emergency lights, got out of the tow truck, hooked cables to the police cruiser and walked back to the truck s bed. He then began the process of pulling the police vehicle from the ditch by activating the levers on a control panel located on the back of the truck. He averred in an unrebutted affidavit that he was leaning on the tow truck for balance and support with both his hands touching the truck; his right hand was on the control panel, and with the left he grasped the truck s railing. It was then that a passing motorist struck him and caused him serious injuries. At issue is Robbins entitlement to underinsured motorist coverage under the tow truck s Westfield policy. Under the policy an insured is entitled to uninsured or undersinsured motorist coverage resulting from bodily injury caused by an accident. The policy provides that, if the named insured is an individual, the insureds are the Named Insured and any family members as well as anyone else occupying a covered auto or temporary substitute for a -1- covered auto. 1 Thereafter, the policy defines occupying as in, upon, getting in, on, out or off. We are asked to determine whether, under the definitions that Westfield provided in its insurance policy, Robbins was upon the tow truck at the time of the accident. As noted by the majority, our Supreme Court has interpreted this identical language. See Rednour v Hastings Mutual Ins Co, 468 Mich 241, 661 NW2d 562 (2003). In Rednour, the plaintiff was struck by an oncoming vehicle while changing a flat tire on the insured vehicle. Id. at 242. The plaintiff was approximately six inches away from the vehicle when he was struck by the other car. He had loosened the lug nuts on the wheel and was moving towards the rear of the vehicle when he was hit. Id. The plaintiff claimed that he was an insured entitled to no-fault benefits because he was occupying the vehicle, as defined by both the no-fault act and the language of the policy. He argued that he was upon the vehicle because he was pinned between the two vehicles during the collision. Id. at 249. The Court noted that it had already interpreted the meaning of occupant under the no-fault statute and declared that a person could not be an occupant under the no-fault act unless they were physically inside the vehicle when struck. See id. at 247, citing Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 531-532, 502 NW2d 310 (1993) (Rohlman I). However, since the language of the policy in its case, like the policy here, broadly defined occupancy as in, upon, getting in, on, out or off the insured vehicle, the Court in Rohlman I remanded the matter to this court to consider whether the plaintiff s conduct fell under the broader definition of occupying stated in the policy. Rohlman, 442 Mich at 535. On remand, this Court noted that physical contact with the insured vehicle is required to be upon the vehicle, although the person need not be completely physically supported by the vehicle. Rohlman v Hawkeye Security Ins Co, 207 Mich App 334, 357; 526 NW2d 183 (1994) (Rohlman II) (noting that a child could be upon a scooter by having one foot on it and another on the ground). While the Rednour Court agreed with the Rohlman II statement that a person did not need to be physically inside the vehicle to be upon it, the Court nevertheless held that physical contact alone is insufficient to show that the person was upon the vehicle so as to be occupying the vehicle. Rednour, 468 Mich at 249-250. The Court explained: The relevant dictionary definitions . . . clarify that one must be on or up and on a vehicle in order to be upon it. Id. More recently still, this Court analyzed the identical contractual language in Bledsoe v Auto Owners Ins Co, unpublished per curiam opinion of the Court of Appeals, issued December 4, 2003 (Docket No. 236735). There the plaintiff s foot was run over by a truck while he was stopped at a toll booth to pay the toll. While leaning on the covered vehicle and bending over to 1 Though not fully developed below, Ken s Service a business was listed by the Westfield policy as An Individual with the result being that his family members, who presumably did not drive this large, commercial tow truck, would have been covered for these injuries regardless of whether they were upon the vehicle and yet Robbins, the employee who actually drove the tow truck on a regular basis and as part of his employment duties, was not. This is not an issue before us on appeal but remains a conundrum. -2- locate some dropped change, the truck attempted to pass him and ran over his foot. Id. at 1. This Court noted that the insurance policy provided greater coverage than that guaranteed under the no-fault act. Id. After distinguishing Rednour, the Court in Bledsoe concluded that the plaintiff was insured because he was upon the truck: In the instant case, plaintiff testified that he was balancing himself with one hand on the step of the insured truck when the accident occurred. Even under the Rednour . . . Court s restricted definitions, plaintiff was, according to his testimony, upon the truck at the time of the accident. We believe that a commonsense interpretation of the term upon leads to this conclusion. Moreover, the Supreme Court in Rednour . . . indicated (1) that one must be on a vehicle to be upon it and (2) that a dictionary is an appropriate reference tool in giving meaning to the terms at issue here. See [Rednour, 468 Mich at 250.] Random House Webster s College Dictionary (1997) lists the following as the first definition of on : so as to be or remain supported by or suspended from. Plaintiff testified that he was balancing himself with one hand on the step of the truck when the accident occurred. If the factfinder were to believe plaintiff s testimony, then (1) plaintiff clearly was being supported by the truck, (2) he therefore was occupying the vehicle under the terms of the Auto Owners policy, and (3) the parked vehicle exclusion in policy does not apply. The trial court properly denied summary disposition to Auto Owners with respect to the issue of PIP benefits. [Id.] Although not binding precedent, I find this reasoning persuasive. Robbins unrebutted affidavit indicates that he was leaning on the tow truck for balance and support at the time he was struck by the passing automobile. Therefore, like the plaintiff in Bledsoe, he was on ( supported by ) or upon and thus occupying the vehicle in accordance with the policy. And because there is no evidence to rebut that Robbins was being supported by the vehicle, the trial court should have granted summary disposition in his favor. If Westfield wanted a more restrictive definition for occupying , it could have chosen to insert a different definition into its policy. As it is, the words they chose were in, upon, getting in, on or off. And, because the definition of on is so as to be or remain supported by or suspended from , Robbins plainly demonstrated that he comes within the policy s definition of occupying and coverage should have been afforded him. For this reason, I respectfully dissent. /s/ Michael J. Kelly -3-
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