Michigan Court of Appeals; Docket No. 180869; Published
Judges Cavanagh, Hood, and McDonald; Unanimous; Per Curiam
Official Michigan Reporter Citation: 219 Mich App 466; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits: Uninsured Motorist Coverage in General
Underinsured Motorist Coverage: Exclusions from Underinsured Motorist Benefits
Private Contract (Meaning and Intent)
CASE SUMMARY:
In this unanimous per curiam published Opinion, the Court of Appeals held that the trial court clearly erred in granting declaratory judgment in favor of the decedent's estate against Auto Owners Insurance on the question of whether or not the decedent was an "insured" entitled to uninsured motorist benefits in a case where the decedent was alleged by the insurance company to be not occupying an automobile at the time he was injured.
The decedent, James Harvey, Jr., was an equal partner in the ownership of a business known as Eastern Equipment Company. He was in the process of loading a car onto a trailer that was attached to a truck, and while standing in the roadway attempting to chain the car to the trailer, was struck by an uninsured motorist, sustaining fatal injuries.
The decedent's estate sought uninsured motorist benefits from Auto Owners, the insurer of the truck and trailer. Auto Owners denied uninsured motorist benefits on the basis of its policy language that defined an insured under the policy as:
"(a) the first named insured if an individual and not a corporation, firm or partnership,
(b) any person while in, upon, entering or alighting from an automobile to which Coverage A of this policy applies." (emphasis added)
Auto Owners argued that the decedent was not the "first named insured" as required by subparagraph (a) of its policy because the policy was issued under the name of Ezra Harvey, d/b/a Eastern Equipment Company. The Court of Appeals concluded that James Harvey, Jr. was not a first named insured within the meaning of the contract language by virtue of being an individual partner in Eastern Equipment Company, and that the trial court was in error in so finding.
Auto Owners also argued that James Harvey was not an insured by virtue of being "in, upon, entering or alighting from" a covered vehicle at the time of the accident The Estate of Harvey relied upon the decision of the Supreme Court in Nickerson v Citizens Mutual Insurance Company, 393 Mich 324; 224 NW2d 896 (1975), in support of its contention that although the decedent was outside the insured vehicle at the time of the accident, he was still "in, upon, entering or alighting from" the vehicle. In distinguishing Nickerson, the Court of Appeals noted that it was a pre-no-fault case, and further, that the passage of the no-fault act and the repeal of the uninsured motorist statute in large measure eliminated the factors motivating the Nickerson decision.
The Court of Appeals then addressed the issues in the context of Rohlman v Hawkeye Security Insurance Company (On Remand), 207 Mich App 344; 526 NW2d 183 (1994) (Rohlman 7i) and Gentry v Allstate Insurance Company, 208 Mich App 109; 527 NW2d 39 (1994). In Rohlman, the Court of Appeals found that the term "upon" means, at a minimum, that there be some physical contact between the person and the covered automobile. However, in the subsequent decision of Gentry, supra, the Court of Appeals followed the Nickerson ruling in adopting a more expansive interpretation of the term "occupying."
The Court of Appeals herein concluded that to the extent that Gentry conflicts with Rohlman II, it was compelled to followed Rohlman II and that, as it appeared that the decedent was not in, entering, or alighting from an insured vehicle, the only issue remaining was whether he was "upon" an insured vehicle. Thus, the pertinent question is whether the decedent was "in physical contact" with an insured vehicle at the time of the accident. Since this issue was not addressed by the trial court, and since discovery, according to plaintiff, was never completed, the Court of Appeals remanded this case to the trial court for further consideration of the question of whether the decedent was in physical contact with an insured vehicle at the time of the accident.
