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Smith v Everest Nat’l Ins Co, et al (COA – UNP 7/1/2021; RB #4291)

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Michigan Court of Appeals; Docket # 353880; Unpublished
Judges Jansen, M.J. Kelly, and Ronayne Krause; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING: 
Exclusion for Vehicles Considered Parked [§3106(1)]
Exclusion for Parked Vehicles Covered by Workers Comp [§3106(2)]

TOPICAL INDEXING: 
Not Applicable


SUMMARY: 
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Terry L. Smith’s first-party action against Defendant Everest National Insurance Company (“Everest”). Smith was performing maintenance on a tow truck when it rolled over onto his body and injured him, thus the Court of Appeals held that a question of fact existed as to whether the tow truck was parked at the time of the accident for purposes of MCL 500.3106. As a result, the Court also held that summary disposition was improperly granted under MCL 500.3106(2)(a), because whether that statute operated to bar Smith’s claim for no-fault PIP benefits turned on whether the vehicle was, in fact, parked at the time of the accident.

Smith was performing maintenance on a tow truck while in the course of his employment at Swift Towing, LLC (“Swift”) when the truck rolled over onto his body and crushed him. Smith was attempting to repair the truck’s neutral safety switch, and thus the truck had been elevated on an 8- to 10-inch ramp made of railroad ties, the ignition turned off, the transmission put in neutral, and the wheels “chocked” to prevent them from moving. Nonetheless, the vehicle somehow began to move while Smith was underneath it, and the gas tank rolled over onto his body, causing him to suffer severe injuries. For his injuries, Smith received workers' compensation benefits, but also pursued no-fault PIP benefits from Everest pursuant to a policy on which his wife was the named insured. Everest denied Smith’s claim for benefits and moved for summary disposition in his subsequent first-party lawsuit, arguing that Smith’s claim was precluded by MCL 500.3106(2)(a), which provides that PIP benefits are not available to an individual who is injured while performing mechanical work on a parked vehicle and for whom workers' compensation benefits are available for the same injuries. The trial court agreed and granted Everest’s motion.

The Court of Appeals reversed the trial court’s summary disposition order, however, holding firstly that a question of fact existed as to whether the tow truck was, in fact, parked at the time it rolled over onto Smith. The Court noted that the vehicle was left in neutral, and not in park, during the repair, that it was unclear whether Smith was working on parts of the truck which were exclusive to its towing functionality or to its transportational functionality, and that the vehicle was not actually motionless at the time of the accident. Therefore, the Court of Appeals remanded for more discovery into its “many questions” regarding the specific facts of how Smith came to be injured.

We conclude that the limited record is insufficient to determine whether the tow truck was actually parked under MCL 500.3106. Specifically, the lack of information and discovery in this case leaves this Court with many questions, which the parties were unable to remedy at oral argument. For example, at the time of the accident, the tow truck was undergoing a repair to an electrical issue that involved the "neutral safety switch," which allegedly required the tow truck to be in neutral during the repair. Unfortunately, the record does not definitely address the function of a neutral safety switch or the effect of a defective neutral safety switch on the operation of the tow truck, nor was either party able to address this issue at oral argument. Likewise, there is no indication that plaintiff’s mechanical work was centralized to the towing function of the tow truck as compared to its transportational function as a motor vehicle. Furthermore, the tow truck was not actually motionless at the time of the injury, and the nature of that motion was consistent with how a motor vehicle would move while in operation.

The Court of Appeals held, secondly, that the trial court could not resolve the issue of whether Smith’s claim for PIP benefits was barred by MCL 500.3106(2)(a) without first resolving the question of whether, in fact, the vehicle was parked at the time of accident. MCL 500.3106(2)(a) provides that PIP benefits are not available to a person who is injured while performing mechanical work on a parked vehicle and entitled to workers' compensation benefits for the same accident.

The trial court did not err in concluding that plaintiff’s claim for no-fault benefits was barred, if the tow truck was parked at the time of accident, because plaintiff received workers’ compensation benefits. While plaintiff contends that any recovery of no-fault benefits would be entitled to a setoff by the amount plaintiff received as workers’ compensation benefits, the parties’ dispute does not involve a claim for setoff pursuant to MCL 500.3109(1). Rather, the issue concerns the interplay between no-fault benefits and workers’ compensation benefits with a parked vehicle, under MCL 500.3106(2). It is undisputed that plaintiff received workers’ compensation benefits for his injuries related to the accident. On this basis, the plain language of MCL 500.3106(2)(a) indicates that plaintiff would not be eligible for no-fault benefits if his injuries arose from performing mechanical work on a parked motor vehicle because he received workers’ compensation benefits for those injuries. Therefore, to the extent that the factfinder determines the tow truck was parked at the time of the accident, plaintiff’s claim for no-fault benefits is barred because plaintiff received workers’ compensation benefits. However, for the reasons discussed above, this record does not permit a definitive conclusion regarding plaintiff’s no-fault claims at this time.

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