Michigan Court of Appeals; Docket Nos. 292149, 293904; Unpublished
Leave Granted by the Supreme Court
Judges Wilder, Cavanagh, and Kelly; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
The Michigan Supreme Court granted mini oral argument on June 17, 2011; Link to Order
STATUTORY INDEXING:
Exception for Permanently Mounted Equipment Use [§3106(1)(b)]
Exception for Loading / Unloading [§3106(1)(b)]
Exception for Occupying [§3106(1)(c)]
Exception for Entering Into or Alighting From [§3106(1)(c)]
Conduct Establishing Unreasonable Delay or Denial
Bona Fide Factual Uncertainty / Statutory Construction Defense
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion authored by Judge Cavanagh with Judge Kelly concurring in result only and Judge Wilder concurring and dissenting in part, the Court of Appeals affirmed a jury verdict awarding no-fault PIP benefits to the plaintiff under the Parked Vehicle Provisions of Section 3106 of the Act. The plaintiff in this case sustained serious leg injuries when she slipped and fell on ice while in the process of closing her parked truck’s passenger door. The plaintiff testified that she was preparing to drive her truck to work when she placed her work bag, coffee, and purse in the passenger side of her truck in anticipation of immediately walking around to the passenger side, entering the truck, and driving to work. However, she testified that after placing the items in her truck, she stepped aside to close the passenger door on the truck. In the process of shutting the truck door, and with her hand still on the door, the plaintiff slipped and fell on her back allegedly from the momentum of swinging the truck door closed, combined with the steep incline of the parking lot.
The plaintiff argued that she was entitled to no-fault benefits as a result of the parked vehicle exception set forth in Section 3106(1)(b) and (c). Specifically, the plaintiff argued that her injury was the direct result of physical contact with equipment permanently mounted on the vehicle while the equipment was being operated or used (she was in the process of closing the truck door and had her hand on the door when the injury occurred); that she was in the process of loading the vehicle when she was injured (i.e. placing her personal belongings into the truck); and the injury was sustained while the plaintiff was alighting from the vehicle. Defendant Allstate contended that the plaintiff was not entitled to no-fault benefits under any of the parked vehicle exceptions set forth in Section 3106. The trial court denied the defendant’s motion for summary disposition and allowed the case to go to the jury, who found for the plaintiff.
The Court of Appeals addressed each of the Section 3106 issues separately. First, the court concluded that the passenger door on the truck was “equipment permanently mounted on the vehicle” and that this permanently mounted vehicle equipment (i.e. the door) was being operated or used at the time of the injury because the plaintiff was closing the truck door. Therefore, the plaintiff satisfied the elements of Section 3106(1)(b). In so holding, the court stated:
“the jury could have concluded that plaintiff was in physical contact with her car door and that the process of closing door – including possibly that the shifting of her weight from foot to foot as required to generate the momentum to swing the door shut or the motion of shutting the door considering its weight or just stepping aside to shut the door – caused plaintiff to be off balance when she stepped on the ice resulting in her fall.”
However, the Court of Appeals disagreed that the “loading” exception set forth in Section 3106(1)(b) applied under the facts of this case. In that regard, the court stated:
“the items were already loaded in plaintiff’s vehicle at the time she was attempting to close the door, therefore she was not injured as a direct result of property being lifted onto or lowered from the vehicle in the loading or unloading process.”
The Court of Appeals also held that the jury could have properly found that the plaintiff was “alighting from her vehicle” within the meaning of Section 3106(1)(c) if it concluded that she was injured in the process of closing the passenger door when the injury occurred. The defendant argued that the alighting exception did not apply because both of the plaintiff’s feet were on the ground. The Court of Appeals held that was not a basis to grant directed verdict for the defendant. In that regard, the court stated:
“[a]lighting from a vehicle is a process that does not end when one merely has their feet outside the vehicle. In fact, a person could still be almost completely inside the vehicle while her feet are located outside the vehicle ‘planted firmly on the ground’ … Just as 'entering into' a vehicle requires one to touch the car door, take a step, and open the car door, one must also touch the car door, take a step, and close the vehicle’s door to complete the process of ‘alighting.’
That is, the exit from the vehicle is not complete until one has actually physically removed oneself completely from the interior of the vehicle and closed the vehicle’s door. In this case, the plaintiff testified that she was in the process of closing the parked vehicle’s passenger door, with her hands still on the door, when she slipped and fell. Thus, she was completing the alighting process when the injury occurred … the defendant’s reliance on the facts that the plaintiff testified that she had stepped away from the vehicle to allow the necessary room to close the car door is unavailing. There is no way to close a car door while one is standing between the vehicle and the door itself.”
Therefore, based on the foregoing, the Court of Appeals concluded that considering the evidence in a light most favorable to the plaintiff, genuine issues of material fact existed with respect to the aforementioned parked vehicle exceptions.
The Court of Appeals also rejected the defendant’s argument that the plaintiff was not permitted to recover no-fault benefits because the plaintiff had also pursued a premises liability claim.
After determining that the plaintiff was entitled to no-fault benefits, the Court of Appeals then addressed the issue of whether the trial court properly denied the plaintiff’s motion for penalty attorney fees under Section 3148 of the Act. On this issue, the Court of Appeals found that the trial court had committed error and that the plaintiff was entitled to penalty attorney fees under this statutory section because the evidence clearly and convincingly demonstrated that the investigation done by the defendant’s insurance adjustor was so “shoddy” that it failed to create a “legitimate factual uncertainty” that would make an award of attorney fees inappropriate under the Act. In this regard, the court noted that the first adjustor assigned by the defendants to this claim concluded that the plaintiff was entitled to benefits as a result of having satisfied the parked vehicle exceptions contained in Section 3106 of the statute. However, that conclusion was reviewed by another adjustor assigned to the defendants SIU Unit. This second adjustor allegedly interviewed two paramedics who came to the plaintiff’s aid at the scene. The adjustor, however, did not take a recorded statement. Rather, she simply took notes for the file that largely consisted of her conclusory statements and opinions about what the paramedics allegedly told her. Subsequently, the two paramedics testified at trial and gave clear testimony that the second adjustor did not accurately characterize what they told her and, in fact, confirmed that the adjustor’s summary of their conversation was wrong. As a result, the Court of Appeals concluded that the defendant’s investigation of the claim was so lacking in thoroughness and legitimacy that it failed to create good faith factual disputes that would immunize the defendant from the attorney fee sanctions of Section 3148. In this regard, the court soundly criticized the defendant’s claim handling procedures in the following passage:
“The ‘investigation’ of plaintiff’s claim was perfunctory and it was neither completely nor accurately documented; thus, it led to unsupported conclusions to plaintiff’s detriment. The goal of the no-fault insurance system is 'to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses.' Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). This goal is completely defeated when an insurer, through its representatives, is permitted to deny such victims their important contractual and statutory rights merely on the ground that a half-hearted and shoddy 'investigation' led to contrary and unfounded conclusions – to the insurer’s benefit – about the facts underlying a claim. When reasonable and reliable investigatory methods and practices are employed, a reasonable decision to deny benefits because of a legitimate question of factual uncertainty can exist. In this case, however, we conclude that a reasonable investigation was not conducted prior to the denial of plaintiff’s claim for no-fault benefits. Any factual uncertainty that initially existed was created by – not uncovered by – Dzierwa’s 'investigation,' as evidenced by the clear, repeated, and contrary testimony of the EMS technicians involved in this matter. The artificial creation of factual uncertainty through such 'investigatory' methods and practices should be neither encouraged nor rewarded. As a consequence of defendant’s actions, plaintiff was forced to endure severe economic hardship and engage in extensive and time-consuming litigation to pursue her rights. Because defendant’s denial of plaintiff’s no-fault benefits was not initially based on a legitimate question of factual uncertainty, the trial court’s denial of plaintiff’s request for attorney fees pursuant to MCL 500.3148(1) is reversed.”
Judge Wilder concurred with the conclusion that the jury could have found in the plaintiff’s favor regarding the alighting exception contained in Section 3106(1)(c). However, Judge Wilder disagreed that the passenger door constituted “equipment permanently not on the vehicle” for purposes of Section 3106(1)(b). In this regard, Judge Wilder concluded that the passenger door was “an integral part of a motor vehicle and is distinguished from other secondary equipment mounted on vehicles…”
Judge M.J. Kelly concurred in the result only.
