Michigan Court of Appeals; Docket # 337616; Unpublished
Judges Borrello, Kelly, and Boonstra per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Exception for Unreasonably Parked Vehicles [§3106(1)(a)]
Disqualification for Uninsured Owners or Registrants of Involved Motor Vehicles or Motorcycles [§3113(b)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld the trial court’s denial of summary disposition for Defendant GEICO Indemnity Insurance (“GEICO”) before the close of discovery. The Court upheld the decision because there were outstanding questions of fact regarding how the plaintiff Patrick Gardner’s (“Gardner”) vehicle was parked and the lower court could not make a determination of fact until discovery was closed.
On February 27, 2015 Gardner went to the Casino with his cousin. When Gardner was driving his cousin home, his black Ford Explorer stalled and lost all power. The vehicle started back up and Gardner took his cousin home. Gardner told his cousin that he wanted to get home before his vehicle stalled again. Gardner never made it home. Instead his vehicle was stopped under a traffic light near Telegraph Road and Nine Mile. Randy Tung (“Tung”) collided with the vehicle at 6:15 AM. The vehicle did not have any lights on and Tung claimed he did not see the vehicle until a “split second” before the impact. Tung said he was driving between 40-50 MPH, but admitted he may have been driving up to 55 MPH. Gardner was not in the vehicle at the time of the impact, but stood nearby. Gardner was severely injured in the impact between his vehicle and Tung’s vehicle. The plaintiff was treated by Botsford Hospital (“Botsford”) for 30 days and then was transferred to hospice care for another 30 days. On October 26, 2016 Gardner died.
Botsford filed an action against the Progressive Marathon Insurance Company (“Progressive”) and GEICO Indemnity Company (“GEICO”) on July 10, 2015 for first-party PIP benefits on the Gardner’s behalf. Both Progressive and GEICO filed an answer denying responsibility for benefits. Progressive was the insurance provider for Gardner and the Court did not explain how GEICO was brought into the action. Progressive was dismissed from the action in the lower court and so the only remaining action was between GEICO and Plaintiffs. GEICO sought summary disposition because it envisioned only two scenarios: (1) Gardner was the sole owner of an unreasonably parked vehicle, and Progressive was responsible for benefits, or (2) Gardner was the sole owner of an unreasonably parked and uninsured vehicle involved in an accident, so he was not entitled to any benefits from any insurer. The lower court denied summary disposition believing the request was premature because discovery had not taken place. GEICO appealed the denial of summary disposition. The Court of Appeals upheld the lower court’s denial of summary disposition.
The Court refused to grant summary disposition during discovery when there was an issue of fact that had yet to be determined. Viewing the evidence in a light most favorable to the non-moving parties, the Court held that a genuine issue of material fact existed. The Court noted that injuries resulting from a parked vehicle are excluded from PIP benefits unless the injury fits into one of the three exclusion MCL 500.3106(1). Relevant to this case was the exclusion for an unreasonably parked vehicle. Citing from Stewart v. State, 471 Mich. 692, 699 (2004), the Court said that factors such as the manner, location, and fashion in which the vehicle was parked should be considered when determining if the vehicle was unreasonably parked. The Court found that these determinations were factual and that the lower court could not make those determinations prior to the close of discovery because there were disputes about the lighting, the speed Tung was traveling, and when Tung saw the vehicle.
“We also recognize that MCR 2.116(C)(10) specifies that summary disposition is proper if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment … as a matter of law,” seemingly, appellant is asking this Court to omit deciding the first prong of the court rule and head directly to the second. (Emphasis added). However, in consideration of this Court’s prior findings that it is liberal in finding a genuine issue of material fact, Jimkoski v Shupe, 282 Mich App 1, 5; 763 NW2d 1 (2008), we hold that questions of fact abound as to whether “[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).”
Therefore, the Court upheld the lower court’s denial of summary disposition prior to the close of discovery.
