ANNIE MACK V TRAVELERS INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
ANNIE MACK, Personal Representative of the Estate
of ALBERT MACK,
UNPUBLISHED
December 6, 1996
Plaintiff-Appellee,
v
No. 170932
LC No. 86-032213-CK
TRAVELERS INSURANCE COMPANY,
Defendant-Appellant.
Before: Saad, P.J., and Marilyn Kelly and M.J. Matuzak,* JJ.
PER CURIAM.
I concur in part and dissent in part.
Defendant initially moved for partial summary disposition on the issue of liability based upon
stipulated facts. The circuit court granted the motion on the basis that MCL 500.3113(b); MSA
24.13113(b) precluded benefits to owners of uninsured vehicles involved in an accident. The court
found that Mack's uninsured vehicle was involved in the accident because he was maintaining the
vehicle. The court further found that Mack was not entitled to benefits under MCL 500.3106(1)(a);
MSA 24.13106(1)(a) because his vehicle was parked in such a way as to cause unreasonable risk of
bodily injury.
Mack appealed that decision and in Mack v Travelers Ins Co, 192 Mich App 691; 481
NW2d 825 (1992), this Court reversed the circuit court, holding that the uninsured vehicle was not
involved in the accident for purposes of MCL 500.3113(b); MSA 24.13113(b) since none of the
statutory exceptions of the parked vehicle provision, MCL 500.3106; MSA 24.13106, were
applicable. Relying upon the Supreme Court's decision in Heard v State Farm Mutual Automobile
Ins Co, 414 Mich 139; 324 NW2d 1 (1982), the panel concluded that plaintiff was entitled to no-fault
benefits as a matter of law.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Upon remand, the parties entered into a consent judgment for the personal injury protection
benefits. The circuit court then issued an opinion granting plaintiff's motion for prejudgment interest,
penalty interest and attorney fees. The circuit court then concluded that defendant's refusal to pay
benefits was unreasonable in light of the Supreme Court's decision in Heard, supra.
As stated in the majority opinion, defendant now argues that the circuit court erred in awarding
attorney fees pursuant to MCL 500.3148(1); MSA 24.13148(1), and penalty interest pursuant to
MCL 500.3142; MSA 24.13142. I agree with defendant with respect to the award of attorney fees,
but disagree with respect to the award of penalty interest.
The circuit court's decision after remand awarding plaintiff attorney fees relied upon our
Supreme Court's decision in Heard, supra. While there are some similarities between the instant case
and Heard, the instant case involves additional considerations not present in Heard. Although pumping
gas may not be considered maintenance, I would find a genuine question whether adding oil to a car
with the hood up might be considered maintenance. There was an additional issue of whether the
vehicle was parked in such a way as to cause of unreasonable risk of the bodily injury which occurred.
See MCL 500.3106(1)(a); MSA 24.13106(1)(a).
Originally, the circuit court ruled that plaintiff was not entitled to personal protection benefits
because plaintiff was performing maintenance on the vehicle, and the vehicle was parked in such a way
as to cause an unreasonable risk of injury. In particular, the circuit court emphasized that the vehicle
was parked facing traffic at the front of the parking space, thus exposing plaintiff's decedent "to cars in
the driving lane while he worked in the front of the vehicle during the store's operating hours." Although
the panel of this Court in Mack, supra, ultimately reversed the decision of the circuit court, the lower
court's original decision signals the existence of legitimate questions of statutory interpretation. As such,
under these circumstances, I believe that the later decision by the circuit court awarding plaintiff attorney
fees under MCL 500.3148(1); MSA 24.13148(1) was clearly erroneous. United Southern
Assurance Co v Aetna Life & Casualty Ins Co, 189 Mich App 485, 492-493; 474 NW2d 131
(1991).
On the other hand, I concur in the majority's conclusion that the award of penalty interest was
proper pursuant to MCL 500.3142; MSA 24.13142. Davis v Citizens Ins Co, 195 Mich App 323,
329; 489 NW2d 214 (1992).
I concur in part and dissent in part.
/s/ Henry William Saad
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