JEFFREY W PETERSON V STATE FARM MUTUAL
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STATE OF MICHIGAN
COURT OF APPEALS
JEFFREY W. PETERSON,
UNPUBLISHED
September 24, 1996
Plaintiff-Appellant,
v
No. 179372
LC No. 92079269 CK
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellee.
Before: Saad, P.J., and Marilyn Kelly and M. J. Mautzak,* JJ.
PER CURIAM.
Plaintiff, Jeffrey Peterson, appeals as of right from a grant of summary disposition for defendant
pursuant to MCR 2.116(C)(10) in this action for no-fault benefits. He argues that a genuine issue of
material fact exists regarding whether his injuries arose from the ownership, operation, maintenance or
use of a motor vehicle as a motor vehicle. We reverse.
The injuries occurred when plaintiff, on a hunting trip, was sitting on the passenger side of his
parked truck with the ignition key in the “off” position. He had loaded his shotgun with five shells and
was preparing to alight from the vehicle when the gun discharged. The shotgun blast resulted in
amputation of the front half of plaintiff’s foot.1
Plaintiff filed suit for personal protection insurance benefits under an insurance policy issued by
defendant State Farm. 2 The trial court denied defendant’s initial motion for summary disposition without
prejudice on February 11, 1993. On July 19, 1993, it denied the parties’ cross motions for summary
disposition, finding that issues of material fact remained to be resolved. On May 31, 1994, defendant
filed a supplemental motion for summary disposition, based on the then-recent case of Mueller v Auto
Club Ins Assoc, 203 Mich App 86; 512 NW2d 46 (1993). Plaintiff responded that his claim was
meritorious, because Mueller did not affect the holding of Perryman v Citizens Ins Co3, upon which
he had relied previously. The trial court granted defendant’s motion for summary disposition.
* Circuit judge, sitting on the Court of Appeals by assignment.
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We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10).
Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992). A (C)(10) motion tests
the factual basis underlying a plaintiff’s claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155
(1993). Summary disposition is permitted only when no genuine issue of material fact is found. We
consider the pleadings and any other evidence in favor of the nonmoving party and grant that party the
benefit of any reasonable doubt. Id.
Section 3105(1) of Michigan’s No-Fault act, 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. [MCL
500.3105(1); MSA 24.13105(1).]
Also relevant to this appeal, Section 3106(1) addresses the specific circumstances under which
personal protection insurance benefits are payable for an accidental bodily injury involving a parked
vehicle. It provides:
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 unreasonable risk of the
bodily injury which occurred.
(b) Except as provided in subsection (2), 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.
(c) Except as provided in subsection (2), the injury was sustained by a person
while occupying, entering into, or alighting from the vehicle. [MCL 500.3106(1); MSA
24.13106(1).]
Gordon v Allstate Ins Co,4 found that, where a § 3106 exception to the parked vehicle
exclusion applies, recovery may be had regardless of whether the vehicle was being used “as a motor
vehicle” under § 3105(1). Therefore, our inquiry is limited to whether one of the § 3106 exceptions is
applicable.
Here, there is no question that plaintiff sustained his injury while occupying or alighting from his
vehicle. Plaintiff loaded his gun while sitting in his truck. As he maneuvered himself and the gun to
emerge from the vehicle, the gun accidentally discharged, striking him in the foot. Therefore, the trial
judge erred in granting summary disposition to defendant. Since there is no genuine issue of material
fact, plaintiff is entitled to summary disposition as a matter of law with respect to liability.
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We believe that the holding in Gordon is incorrect. The Gordon panel based its conclusion on
its interpretation of Winter v Automobile Club of Michigan. 433 Mich 446; 446 NW2d 132 (1989).
In Winter, the plaintiff sought personal injury protection insurance benefits under § 3106 when a slab of
concrete fell from the hook of a parked tow truck injuring his hand. The Supreme Court stated:
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.” Thus, it is apparent that if a vehicle is “parked,” coverage otherwise available
under § 3105(1) is qualified by the provisions of § 3106(1). In the instant case,
because the tow truck was parked, coverage is excluded by § 3106(1) unless one of its
exceptions is applicable. 10
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10
In Bialochowski, supra at 229, we stated:
Having concluded that the equipment truck was a motor vehicle being used as a
motor vehicle, our inquiry is not complete. In order to receive no-fault benefits for an
injury involving a parked vehicle, one of the criteria established in § 3106 of the no-fault
act must be met.
To the extent that this passage can be read to mean that a determination of
whether § 3105(1) is fulfilled is to be made separately from a determination of whether
§ 3106(1) is fulfilled, it is overruled.
The panel is Gordon, supra, relied upon footnote 10 from Winter to support its conclusion that
“it is unnecessary to make separate determinations whether §§ 3105(1) and 3106 are fulfilled.”
However, we believe that the panel in Gordon misinterpreted Winter. The Supreme Court overruled
Bialochowski only to the extent that it could be read to mean that § 3105 can be applied independently
of § 3106. It did not hold that the parked vehicle exception should be viewed independently of the use
being made of the vehicle at the time of the injury. In fact, it held the opposite: when a parked vehicle
is involved, § 3105 and § 3106 must be considered together. Accordingly, we do not believe that
footnote 10 in Winter stands for the proposition advanced by this Court in Gordon.
Before the decision in Gordon, this Court overwhelmingly held that, to recover where a parked
vehicle is involved, a claimant must show that: (1) an exception to the parked vehicle exclusion applies
and (2) the injury arose out of the use of a motor vehicle as a motor vehicle. See, e.g., Gooden v
Transamerica Ins Corporation of America, 166 Mich App 793, 797; 420 NW2d 877 (1988) and
cases cited therein. In fact, two recent decisions of this Court follow that analysis: Yost v League
General Ins Co, 213 Mich App 183, 184-185; 539 NW2d 568 (1995); McKenzie v Auto Club Ins
Ass’n, 211 Mich App 659, 662; 536 NW2d 301 (1995). Unfortunately, neither Yost nor McKenzie
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addresses the implications of Gordon. However, it is clear that, where there are two conflicting
opinions published after November 1, 1990, the first one governs. Administrative Order 1990-6, 436
Mich lxxxiv; AO 1994-4, 445 Mich xci; AO 1996-4, 451 Mich xxxiii; People v Young, 212 Mich
App 630, 638-639; 538 NW2d 456 (1995). Therefore, we follow the analysis employed in Gordon,
rather than the one in Yost and McKensie.
Even if we were to follow Yost and McKensie, we would find that a question of fact exists as to
whether the injury resulted from the use of a motor vehicle as a motor vehicle. MCL 500.3105(1);
MSA 24.13105(1). Section 3105 “speaks to the requisite causal connection between the motor
vehicle and the ensuing injury.” Shellenberger v INA, 182 Mich App 601, 603; 452 NW2d 892
(1990). The causal connection between the injury and the use of the motor vehicle as a motor vehicle
must be “more than incidental, fortuitous, or ‘but for.’” Thornton v Allstate Ins Co, 425 Mich 643,
659; 391 NW2d 320 (1986). The involvement of the car in the injury should be directly related to its
character as a motor vehicle. Perryman v Citizen’s Ins Co, 156 Mich App 359, 365; 401 NW2d 367
(1986).
Here, plaintiff’s deposition testimony is that the injuries occurred in part because he was using
his motor vehicle as a motor vehicle. Perryman, supra. The transportation of hunting gear and
equipment, including guns, for hunting or camping is a reasonable and foreseeable use of one’s motor
vehicle as a motor vehicle. Id. Plaintiff’s testimony presents a factual issue concerning whether the
truck’s confines contributed to the accidental discharge.
Plaintiff testified that, after he finished loading the shotgun, he pushed the door open to get out of
the vehicle. Although he expressed it somewhat unclearly, plaintiff apparently attempted to remove the
gun from its case while beginning to alight. It was at that point that the gun discharged. The confining
nature of the truck’s interior arguably played a role in how plaintiff maneuvered the gun while alighting
from the vehicle. Perryman, supra, p 366.5 A factual question was presented as to whether plaintiff’s
truck was more than merely the site of an accident. Hence, summary disposition would have been
improper, even had we followed Yost and McKensie.
Reversed and remanded for further proceedings on the issue of damages. We do not retain
jurisdiction.
/s/ Marilyn Kelly
/s/ Michael J. Matuzak
1
One of the issues raised in this appeal concerns whether the vehicle was parked or moving at the time
of the incident. However, the only testimony cited by the parties which substantiates the claim that the
vehicle was moving is the deposition testimony of Bixler, the driver. Our review of the record reveals
that Bixler’s deposition was not presented to the trial judge for his consideration. A party may not
attempt to enlarge the record on appeal. Tope v Howe, 179 Mich App 91, 105; 445 NW2d 452
(1989). Accordingly, we will not consider Bixler’s testimony in deciding this case.
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2
A second defendant, Michigan Educational Employees Mutual Insurance Company, was dismissed
from the case by stipulation of the parties. There was no dispute that State Farm was the primary
insurer with respect to payment of no-fault benefits.
3
156 Mich App 359; 401 NW2d 367 (1986).
4
197 Mich App 609, 612; 496 NW2d 357 (1992).
5
Mueller, supra, relied upon by defendant, is distinguishable. There, the Court concluded that the
vehicle was not the instrumentality of the injury, nor was the injury caused by the inherent nature of the
vehicle. Here, the vehicle directly contributed to plaintiff’s injury.
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