Michigan Court of Appeals; Docket No. 170932; Unpublished
Judges Saad, Marilyn Kelly, and Matuzak; 2-1 (with Judge Saad Concurring in Part and Dissenting in Part); Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Disqualification for Uninsured Owners or Registrants of Involved Motor Vehicles or Motorcycles [§3113(b)]
Exclusion for Vehicles Considered Parked [§3106(1)]
12% Interest Penalty on Overdue Benefits – Nature And Scope [§3142(2), (3)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Bona Fide Factual Uncertainty / Statutory Construction Defense [§3148]
Calculating Attorney Fees Not Based on Contingent Fee [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this per curiam unpublished Opinion (Judge Saad concurring in part and dissenting in part), the Court of Appeals affirmed the trial court grant of actual attorney fees and penalty interest under §3148(1) and §3142 of the no-fault act. in a case where Travelers claimed plaintiff was disqualified under §3113(b) from receiving benefits because he was injured while maintaining a vehicle involved in the accident.
Plaintiff Mack was injured in the parking lot of an auto parts store while leaning over the front of his car adding oil to his uninsured vehicle. A van driven by Travelers Insurance Company's insured, backed up and pinned plaintiffs legs between the vehicles. Mack did not have automobile insurance and applied for benefits, therefore, from Travelers. Travelers denied benefits on the basis of §3113(b) contending that plaintiff was disqualified from benefits because he was the owner of an uninsured vehicle involved in the accident. The trial judge initially found that Mack's uninsured vehicle was involved in the accident and that Mack was maintaining his vehicle when adding oil to the engine. Further, the trial court found that Mack's vehicle was parked in such a way (in a parking space with the front facing towards the parking lot), as to cause an unreasonable risk of bodily injury. Plaintiff appealed from the trial court's decision, and on appeal, the Court of Appeals reversed, holding that the uninsured vehicle was not involved in the accident for purposes of §3113(b). Further, the Court of Appeals held that none of the statutory exceptions of the parked vehicle provisions of the act (§3106) were applicable. The Court of Appeals, relying upon the Supreme Court decision in Heard v State Farm Mutual Automobile Insurance Company, 414 Mich 139; 324 NW2d 1 (1982) (Item No. 538), held plaintiff was entitled to no-fault benefits as a matter of law. Mack v Travelers Insurance Company, 192 Mich App 691; 481 NW2d 825 (1992) (Item No. 1531).
On remand, the trial court ordered that Travelers pay penalty interest under §3142 of the no-fault act, together with actual attorney fees under §3148. Travelers appealed, and on this appeal, the Court of Appeals upheld the trial court's entry of penalty interest and attorney fees. The majority ruled that in Heard, supra, pumping gas into a car did not constitute maintenance. Based upon Heard, the facts of the instant case involving putting oil in a vehicle, made clear that plaintiffs injury did not arise out of the maintenance of an uninsured motor vehicle. Further, the majority held that the injury was not caused by the act of putting oil into the car, but rather, was caused when another vehicle struck the plaintiff. Plaintiffs own uninsured vehicle could just as easily have been at tree or pole for purposes of the act. Therefore, defendant failed to meet its burden of proving that a reasonable question existed under the facts of this case, and the trial court award of actual attorney fees was affirmed. On this issue, Judge Saad dissented, and would hold that while there are some similarities between the instant case and Heard, he would find a genuine question of whether adding oil to a car with the hood up might be considered to be maintenance under §3113 of the act Further, Judge Saad felt that there was a question as to whether or not the vehicle was parked unreasonably under §3106(l)(a) of the act, which also would preclude entry of actual attorney fees. Since Judge Saad would hold that there were legitimate questions of statutory interpretation at the time the matter was first litigated, attorney fees should not be awarded under §3148(1).
The Court of Appeals also upheld the trial court's order finding $125 per hour to be a reasonable hourly rate.
Finally, the judge properly awarded penalty interest under §3142. The clear language of the statute compels such interest regardless of the reasonableness of the insurer's decision to withhold benefits. The Court of Appeals affirmed the trial court's decision to require payment of penalty interest from the date the loss was incurred until the date of payment.
