Michigan Court of Appeals; Docket # 348669; Published
Judges Cavanagh, Borrello, and Tukel; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Physical Contact Requirement [§3135]
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing the plaintiff’s claim for uninsured motorist benefits. The plaintiff, Larry Tankanow, crashed into a sulky that became unattached from another vehicle on the highway, and the driver of the other vehicle drove off before Tankanow could discover his identity. Even though Tankanow crashed into the sulky, and not the other vehicle, itself, the Court of Appeals held that a genuine issue of material fact existed as to whether there was a “substantial physical nexus” between the sulky and the other vehicle such that Tankanow could be said to have actually “hit” the other vehicle.
Tankanow was driving down I-75 when he observed an RV traveling in the same direction, with a sulky attached to its back by a bungee cord. At some point thereafter, Tankanow crashed into the sulky as it lay in the road. Tankanow noticed the RV approximately one quarter of a mile ahead of him, pulled over on the side of the road, but before he could make contact with its driver, he or she “took off.” Tankanow eventually filed a complaint against his automobile insurer, Citizens Insurance Company of America, for uninsured motorist benefits, “because the sulky that caused the accident fell off the RV that left the scene.” Citizens filed a motion for partial summary disposition in response, arguing that, “(1) the sulky was not the ‘hit-and-run vehicle’ as defined in the insurance policy, and (2) the actual hit-and-run vehicle, the RV, never ‘hit’ plaintiff’s vehicle.” The trial court agreed with Citizens, and granted Citizens’ motion.
The Court of Appeals reversed the trial court’s summary disposition order in favor of Citizens, holding that a genuine issue of material fact existed as to whether Tankanow “was entitled to uninsured motorist benefits under the policy because he hit the sulky—an object that had been propelled off of the RV, the hit-and-run vehicle.” The Court noted that Tankanow never crashed into the RV, itself, and that the sulky was not itself a motor vehicle. However, the Court was persuaded by Tankanow’s contention that “the impact of the propelled object, the sulky, constituted a ‘hit’ under the policy.” Furthermore, the Court relied on prior appellate case law for the proposition that, if a “substantial physical nexus” exists between the hit-and-run vehicle and the object that falls off of it, crashing into the object, but not the actual vehicle, would count as a crash with the actual vehicle under the policy.
Here, considering the language of the insurance policy and Michigan caselaw, there is at least a genuine issue of material fact whether the RV “hit” plaintiff’s vehicle. Assuming that plaintiff is correct in that the sulky fell off of the RV, a finder of fact could conclude that there was a “substantial physical nexus” between the hit-and-run vehicle and the sulky, which plaintiff then hit with his insured vehicle. See id. at 359; Berry, 219 Mich App at 347. Therefore, the trial court’s grant of defendant’s motion for partial summary disposition was improper. See Allison, 481 Mich at 425.
