Michigan Court of Appeals; Docket No. 167399; Published
Judges Wahls, Reilly, and Jansen; 2-1 (with Judge Wahls Dissenting); Opinion by Judge Reilly
Official Michigan Reporter Citation: 207 Mich App 344; Link to Opinion 
STATUTORY INDEXING:
General Rule of Priority [§3114(1)]
Exception for Occupants [§3114(4)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this 2-1 Opinion by Judge Reilly (Judge Wahls concurring in part and dissenting in part), the Court of Appeals on remand from the Supreme Court, resolved issues pertaining to the occupancy of a van and trailer for purposes of no-fault benefits and uninsured motorists benefits in accordance with the ruling and direction of the Michigan Supreme Court, 442 Mich 520 (1993) (Item No. 1627).
The unusual facts of this case involved an Ohio accident where plaintiff was a passenger in a minivan registered in Michigan, and insured by Hawkeye. The van was pulling a small two-wheeled trailer which became unhitched, overturned and came to rest in the center lane of the highway. After the accident, plaintiff walked to the trailer from the van, which was parked approximately 10 to 20 feet behind the trailer. Plaintiff was attempting to turn it over onto its wheels. Plaintiff alleged that as he was in the process of lifting the trailer, he was hit by an unidentified vehicle at the scene, leaving plaintiff with serious injuries. There was a factual discrepancy at trial regarding whether or not plaintiff was in physical contact with the trailer at the time of the accident.
Hawkeye's motion for summary disposition on the grounds that plaintiff was not entitled to no-fault benefits because he was not occupying either the van or the trailer at the time of the accident was denied, and the Court of Appeals affirmed. The Supreme Court reversed, noting that plaintiff was not entitled to PIP benefits in connection with the van because he was not an "occupant" of the van as that term is used in §3114. The Supreme Court remanded to the Court of Appeals to consider whether plaintiff was an occupant of the trailer for purposes of PIP benefits and whether plaintiff was occupying either the van or the trailer for purposes of uninsured motorist benefits.
The Court of Appeals found that plaintiff was not an occupant of the trailer because he was not "physically inside" the trailer and, in accordance with the Supreme Court ruling, §3114 does not include "entering, into" or "alighting from" the vehicle as acts that would trigger personal protection benefits for an out-of-state accident The court remanded to the trial court for entry of an order granting Hawkeye's motion for summary disposition pertaining to PIP benefits.
With regard to whether plaintiff was entitled to uninsured motorist benefits, the court relied upon the contractual language of the insurance policy. That policy defines a "covered person" as the insured, a family member of the insured, or any other person "occupying" the "covered auto." Although Hawkeye conceded that the trailer and the van were to be considered a "covered auto" for purposes of uninsured motorist coverage, Hawkeye disputed whether plaintiff was occupying either of them. The term "occupying" is defined in the policy as "in, upon, getting in, on, out or off." The Court of Appeals concluded that it was not bound by the pre-no-fault ruling in Nickerson v Citizens Mutual Insurance Company, 393 Mich 324 (1975), in light of the Supreme Court holding, and held that the policy term "occupying" should be given a literal construction consistent with the generally understood meaning of the terms used in its definition. The court held that the term "upon" in the definition of "occupying" means, at a minimum, some physical contact with the covered automobile. A person seeking uninsured motorist benefits by claiming to be "upon" a covered automobile, must show that he or she was in physical contact with the covered automobile when injured in the accident.
In this case, by plaintiffs own statements, he was not in physical contact with the van, and the van was not involved when the accident occurred. Therefore, Hawkeye is not liable for uninsured motorist benefits in connection with the van. However, a question of fact remains as to whether plaintiff was in physical contact with the trailer at the time of the accident Because of this factual discrepancy, the matter was remanded to the trial court for resolution of this factual issue.
In his separate opinion concurring in part and dissenting in part, Judge Wahls would hold that the determination of whether the definition of occupying contained in the uninsured motorist policy is satisfied, should be decided on a case-by-case analysis. In this case, because plaintiff remained within close proximity of the van, and was attempting to alleviate a vehicle-oriented incident in order to continue travel, he would hold that plaintiff was occupying the van and the trailer at the time of the accident
