Michigan Court of Appeals; Docket No. 179372; Unpublished
Judges Saad, Marilyn Kelly, and Mautzak; 2-1 (with Judge Saad Dissenting); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Entering Into or Alighting From [§3106(1)(c)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion, the Court of Appeals held that plaintiff’s injuries arose from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, when Plaintiff, while on a hunting trip, was injured when he attempted to alight from his parked vehicle and his shotgun discharged injuring his foot.
Section 3105(1) of the no-fault act makes an insurer liable to pay personal injury protection benefits for accidental bodily injury "arising out of" the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. Further, when the injury involves a "parked vehicle," then §3106(1) is applicable. Under that section, the statute provides that accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle, unless one of the statutory exceptions under §3106(1) applies. One of those sections, 3106(1 )(c), is when the person injured was occupying, entering into, or "alighting from the vehicle."
This case addressed whether or not both §3105(1) and §3106(1) of the statute must be satisfied. The Court of Appeals noted that in Gordon v Allstate Insurance Company, 197 Mich App 609, 612; 496 NW2d 357 (1992) (Item No. 1592), the Court of Appeals held that where a §3106 exception to the parked vehicle exclusion applies, recovery may be had regardless of whether the vehicle was being used "as a motor vehicle" under §3105(1). Although the majority opinion in this case felt that the holding in Gordon that it was unnecessary to make separate determinations under §3105 and §3106 was an incorrect interpretation of the Supreme Court case of Winter v Automobile Club of Michigan, 433 Mich 446; 446 NW2d 132 (1989), nevertheless, the court felt constrained to follow Gordon. In following Gordon, the court concluded that there was no question that plaintiff sustained his injury while occupying or alighting from his vehicle. Therefore, summary disposition should have been granted in favor of plaintiff as a matter of law with regard to liability under the no-fault policy, the provisions of §3106(l)(c) having been satisfied.
The Court of Appeals majority opinion also stated that even if it were constrained to follow subsequent Court of Appeals cases which conflict with Gordon, supra, the majority would still find a question of .fact existing as to whether or not the injury resulted from the use of a motor vehicle as a motor vehicle under §3105(1). The majority held that the transportation of hunting gear is a reasonable and foreseeable use of one's motor vehicle as a motor vehicle. Plaintiffs attempt to remove the gun from its case while he was alighting from the vehicle suggested that the confining nature of the truck's interior arguably played a role in how plaintiff maneuvered the gun while alighting from the vehicle.
Judge Saad, in his dissent, would hold that the Michigan Supreme Court decision in Winter (Item No. 1293) requires that both §3105 and §3106 be considered together, and that the holding in Gordon, supra, is contrary to the holding in Winter. Where there is a conflict between the holdings of the Michigan Supreme Court and the Michigan Court of Appeals, the Court of Appeals in this decision is obliged to follow the Supreme Court. Judge Saad would also hold that the act of loading a gun in plaintiff’s truck was a violation of criminal law, and therefore recovery of PIP benefits in this context undercuts the purpose of the no-fault statute and the criminal law of this state. Judge Saad would affirm the circuit court's grant of summary disposition in favor of the defendant insurance company.
