LAKELAND NEUROCARE CENTERS V TITAN INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
LAKELAND NEUROCARE CENTERS,
UNPUBLISHED
February 6, 2001
Plaintiff-Appellee/Cross-Appellant,
v
No. 213167
Oakland Circuit Court
LC No. 97-539904-NF
TITAN INSURANCE COMPANY,
Defendant-Appellant/Cross-Appellee.
Before: Smolenski, P.J., and Doctoroff and Wilder, JJ.
PER CURIAM.
Plaintiff brought this action seeking payment of no-fault insurance benefits for medical
services rendered to plaintiff’s patient, Larry J. Murff. Murff was seriously injured when his
motorcycle collided with a parked car belonging to Shawn McPeters and insured by defendant.
McPeters had parked his car along a highway in order to aid another motorist, Ben Johnson, in
changing a flat tire. Both parties filed motions for summary disposition. The trial court granted
summary disposition to plaintiff and denied summary disposition to defendant. The trial court
also denied plaintiff’s request for attorney fees. Defendant appeals as of right the trial court’s
grant of summary disposition, and plaintiff cross-appeals the trial court’s denial of attorney fees.
We affirm.
This Court reviews de novo a trial court’s grant of summary disposition under MCR
2.116(C)(10). Spencer v Citizens Ins Co, 239 Mich App 291, 298-299; 608 NW2d 113 (2000).
This Court considers “affidavits, pleadings, depositions, admissions and other evidence
submitted by the parties in the light most favorable to the party opposing the motion.” Id. at 299.
“When the proffered evidence fails to establish a genuine issue regarding any material fact, the
moving party is entitled to judgment as a matter of law.” Id.
The no-fault act generally excludes coverage for parked vehicles. See MCL 500.3106;
MSA 24.13106. However, coverage for a parked vehicle does exist if, among other things, “[t]he
vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which
occurred.” MCL 500.3106(1)(a); MSA 24.13106(1)(a). Here, defendant claims that the trial
court erred in determining that McPeters’ car was parked in such a way that it caused an
unreasonable risk of the bodily injury that occurred. “[W]here the facts are not disputed, the
determination whether an automobile is parked in such a way so as to create an unreasonable risk
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of bodily injury under the no-fault act is an issue of statutory construction for a court to decide.”
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631 n 3; 563 NW2d 683 (1997).
Courts have recognized an unreasonable risk of bodily injury under the no-fault act in
cases where a vehicle only slightly protruded into a traffic lane. See Hackley v State Farm
Mutual Automobile Ins Co, 147 Mich App 115, 118; 383 NW2d 108 (1985), Williams v Allstate
Ins Co, 144 Mich App 178, 180-181; 375 NW2d 8 (1985), and Braun v Citizens Ins Co, 124
Mich App 822, 823, 828; 335 NW2d 456 (1983). Here, it was undisputed that McPeters’ car was
parked in the left lane of traffic. There was some evidence that McPeters’ car was also in the
partial left shoulder, but it is clear that at least the rear of the car was within the traffic lane.
Inasmuch as McPeters’ car occupied the high-speed lane of I-94 at 10:30 p.m., it posed an
unreasonable risk of bodily injury. Id. Cf. Autry v Allstate Ins Co, 130 Mich App 585, 594-595;
344 NW2d 588 (1983) (no unreasonable risk of bodily injury where a vehicle is parked “in a safe
and prudent fashion”). Accordingly, the trial court did not err in finding, as a matter of law, that
McPeters’ parked vehicle posed an unreasonable risk of the bodily injury which occurred.1
Defendant next argues that McPeters’ vehicle was not being used as a motor vehicle, as
required for coverage under the no-fault act, and that the causal relationship between McPeters’
vehicle and the incident was merely incidental, fortuitous, or but for. Putkamer, supra at 635636. We disagree. “[W]here there is no dispute about the facts, the issue whether an injury arose
out of the use of a vehicle is a legal issue for a court to decide and not a factual one for a jury.”
Putkamer, supra at 630. The Michigan Supreme Court has held that “[w]hether an injury arises
out of the use of a motor vehicle ‘as a motor vehicle’ turns on whether the injury is closely
related to the transportational function of automobiles.” McKenzie v Auto Club Ins Ass’n, 458
Mich 214, 225-226; 580 NW2d 424 (1998).
Defendant claims that the car was being used as a barricade and a spotlight for Johnson’s
disabled vehicle. It is true that McPeters parked his car behind Johnson’s car and illuminated his
headlights. However, we conclude that such action did not take McPeters’ vehicle out of the
realm of its use “as a motor vehicle.” The Supreme Court has observed that merely because a car
was not moving does not mean that it was not engaged in its transportational function.
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We also reject defendant’s argument focusing on the reasonableness of McPeters’ actions. The
trial court properly observed that this was not a negligence case, and the no-fault act operates
without regard to fault. Travelers Ins v U-Haul of Michigan, Inc (On Remand), 235 Mich App
273, 283; 597 NW2d 235 (1999). Defendant cites Wills v State Farm Ins Cos, 437 Mich 205;
468 NW2d 511 (1991), in arguing that McPeters’ alleged intoxication should be taken into
account in this case. Wills held, inter alia, that a plaintiff who illegally travels along the shoulder
of a road cannot obtain no-fault benefits after colliding with an unlighted vehicle parked on the
shoulder in violation of an ordinance requiring that vehicles parked along highways display their
lights. Id. at 212-215. The Supreme Court upheld the denial of benefits because the person
traveling along the shoulder “was not in the class of plaintiffs sought to be protected by the
lighted-vehicle statute.” Id. at 213. Contrary to defendant’s contention, Wills is inapposite to the
instant case, because (1) a statutory violation is not at issue here, and (2) regardless of any
intoxication, McPeters was traveling on the roadway proper and therefore was entitled to be free
from the unreasonable risk of harm presented by a parked vehicle protruding into the roadway.
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McKenzie, supra at 219 n 6. Here, McPeters’ car was in use in the context of its transportational
function. See Putkamer, supra at 636, and McKenzie, supra at 221. McPeters stopped while
traveling along the highway to aid Johnson in changing a flat tire. The facts that he illuminated
his headlights and that his car functioned as a barrier to Johnson’s car were insufficient, in our
opinion, to alter the car’s use as a motor vehicle. Cf. McKenzie, supra at 226 (no coverage
because vehicle being used as sleeping accommodations), and Gooden v Transamerica Ins Corp
of America, 166 Mich App 793; 420 NW2d 877 (1988) (no coverage because vehicle being used
as a scaffold).
We further conclude that the causal connection between Murff’s injury and McPeters’
parked car was more than merely incidental. Murff’s injury was sufficiently tied to McPeters’
use of his motor vehicle as a motor vehicle. It was McPeters’ use of his vehicle as a motor
vehicle, by parking on the expressway in order to aid another motorist, that directly caused the
accident. Cf. Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986), Mueller v ACIA,
203 Mich App 86; 512 NW2d 46 (1993), Kraeger v State Farm, 197 Mich App 577; 496 NW2d
346 (1992), and Auto Owners v Rucker, 188 Mich App 125; 469 NW2d 1 (1991) (no coverage
because causal connection merely incidental). The trial court properly concluded that McPeters’
vehicle caused the accident in a way that was more than merely “incidental, fortuitous, or but
for.” Putkamer, supra at 635.
Because the trial court correctly granted defendant summary disposition based on the
parked vehicle exception contained in MCL 500.3106(1)(a); MSA 24.13106(1)(a), we need not
address whether summary disposition was also appropriate because the injury occurred during
the “maintenance” of a motor vehicle. See MCL 500.3105(1); MSA 500.13105(1).
On cross-appeal, plaintiff claims that the trial court erred in denying plaintiff’s request for
attorney fees. We disagree. Michigan’s no-fault statute provides for an insured’s recovery of
attorney fees where the no-fault insurer unreasonably delayed or denied benefits. MCL
500.3148(1); MSA 24.13148(1). “[T]he inquiry is not whether coverage is ultimately determined
to exist, but whether the insurer’s initial refusal to pay was reasonable.” Shanafelt v Allstate Ins
Co, 217 Mich App 625, 635; 552 NW2d 671 (1996). A delay or denial is not unreasonable if it
is based on a legitimate question of statutory construction, constitutional law, or factual
uncertainty. Id.
“A trial court’s finding of an unreasonable refusal to pay or delay in paying benefits will
not be reversed on appeal unless the finding is clearly erroneous.” Attard v Citizens Ins Co of
America, 237 Mich App 311, 316-317; 602 NW2d 633 (1999). However, a trial court’s ultimate
decision to deny an insured’s attorney fees, based upon the no-fault insurer’s reasonable basis for
denying or delaying coverage, is reviewed for an abuse of discretion. Shanafelt, supra at 634635.
Here, defendant argued that coverage for the parked vehicle involved in this case did not
exist because McPeters’ car was being used as a barricade and a spotlight and was not engaged in
its transportational function. This was a legitimate argument. Although defendant did not
prevail in the trial court, we cannot say that the trial court’s finding of a legitimate question of
statutory interpretation was clearly erroneous, and the trial court did not abuse its discretion in
ultimately denying plaintiff’s request for attorney fees.
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Plaintiff additionally contends that the denial of attorney fees was inappropriate because
coverage was clearly triggered under MCL 500.3105(1); MSA 500.13105(1), inasmuch as the
injury arose from the “maintenance” of a motor vehicle. Although, as stated earlier, we do not
reach the issue of whether the “maintenance” of Johnson’s vehicle triggered coverage, we do
conclude that a legitimate question of statutory construction existed with regard to this argument.
Indeed, no case law has addressed whether coverage extends to injuries resulting from a collision
with a vehicle that was not undergoing maintenance but was merely parked while aiding in the
maintenance of another vehicle. A grant of attorney fees based on the “maintenance” argument
would not have been appropriate.
Affirmed.
/s/ Michael R. Smolenski
/s/ Martin M. Doctoroff
/s/ Kurtis T. Wilder
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