Michigan Court of Appeals; Docket #273711; Unpublished
Judges Cavanagh, Jansen, and Borrello; 2-1 (Judge Borrello dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Motor Vehicle Involvement [3105(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, the Court of Appeals affirmed summary disposition for defendant Auto-Owners, finding that a plaintiff who was injured when he fell from a bucket that was attached to a boom permanently mounted to a truck, was not entitled to no-fault benefits because the injury did not involve the use of a motor vehicle as a motor vehicle under MCL 500.3105(1). Furthermore, the court agreed that none of the exceptions to the parked vehicle exclusion applied.
The plaintiff in this case was injured while trimming a tree when he fell from a bucket attached to a boom that was permanently mounted to a truck. In affirming, the Court of Appeals held that under McKenzie v Auto Club Insurance Association, 458 Mich 214 (1998) [Item No. 1995], the vehicle was not being used as a motor vehicle. Instead, it was being used as a foundation for the tree trimming equipment. Plaintiff argued that the transportation of the driver in a vertical direction, i.e., up, is closely related to the vehicle’s transportational function. The Court of Appeals disagreed, stating that the movement of the bucket was not significant to the issue of whether the motor vehicle was being used as a motor vehicle at the time of plaintiff’s injury. In that regard, the court stated:
“McKenzie supports the trial court’s determination that plaintiff’s vehicle was not being used as a motor vehicle at the time of plaintiff’s injury. It was being used as a foundation for tree-trimming equipment. Plaintiff contends that the transportation of the driver in a vertical direction is closely related to the transportational function of the truck itself so as to satisfy the McKenzie interpretation of MCL 500.3105(1). Like the trial court, we are not persuaded that the vertical movement of the bucket is significant to the transportational function that determines whether a motor vehicle is being used as a motor vehicle.”
Moreover, the Court of Appeals determined that none of the exceptions to the parked vehicle exclusion under MCL 500.3106 applied. The court explained that the holding from Drake v Citizens Insurance Company of America, 270 Mich App 22 (2006) [Item No. 2676]that the transportational function of a delivery truck includes the process of depositing the product that the delivery truck was carrying, could not be applied to this situation. According to the court, that holding does not suggest that the transportational function of a motor vehicle includes vertical movement of a bucket on a boom attached to the motor vehicle. In this regard, the court stated:
“Drake, supra, does not compel a different result. Regardless of the criticism of the McKenzie analysis in Drake, the transportational function analysis remains controlling. . . . Moreover, application of the Drake test is not helpful to plaintiff; at most, it indicates that the transportational function of a delivery truck includes the process of depositing the product. That holding does not suggest that the transportational function of a motor vehicle includes vertical movement of a bucket on a boom attached to a motor vehicle.”
