Michigan Court of Appeals; Docket No. 162917; Published
Judges Murphy, Allen, Jr., and Beach; Unanimous; Opinion by Judge Murphy
Official Michigan Reporter Citation: 208 Mich App 109; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
Uninsured Motorist Benefits: Uninsured Motorist Coverage in General
CASE SUMMARY:
In this unanimous published Opinion by Judge Murphy, the Court of Appeals affirmed the trial court's grant of summary disposition in favor of the plaintiff, holding that plaintiffs were entitled to both PIP benefits and uninsured motorist benefits on the basis that they were "occupants" of a vehicle when they were struck as they stood next to the vehicle while waiting for a tow truck.
Plaintiffs were driving a borrowed vehicle when it went out of control and went off the road. Plaintiffs got out of the vehicle and went across the street to seek help. After securing the assistance of a farmer who had towing equipment, they went back and stood next to the passenger side of the vehicle. While waiting, another vehicle lost control, struck the vehicle's driver's side, and the impact caused the vehicle to land on top of plaintiffs. Neither plaintiffs nor the second vehicle were insured. The borrowed vehicle that landed on top of plaintiffs was insured by defendant Allstate.
Plaintiffs' claim for uninsured motorist benefits were denied by Allstate on the grounds that plaintiffs were not "occupying" the automobile as defined by the policy of insurance. In construing the policy language, the Court of Appeals affirmed the trial court determination that plaintiffs were considered to be an "insured" because they were "occupying an insured automobile." The policy defines the term "occupying" as "in or upon, entering into, or alighting from." The Court of Appeals held that it would follow the expansive interpretation of the term "occupying" contained in Nickerson v Citizens Mutual Insurance Company, 393 Mich 324 (1975), and find that plaintiffs were occupying the vehicle within the policy definition of that term for purposes of uninsured motorist benefits.
With regard to plaintiffs' claim for no-fault PIP benefits under the policy, the Court of Appeals rejected defendant Allstate's argument that plaintiffs were precluded from recovery of PIP benefits because they were not "occupants" of the automobile. The Court of Appeals held that whether or not plaintiffs were "occupants" is irrelevant to their recovery of no-fault benefits under the facts of this case, because this is not a priority dispute, nor is it an out-of-state accident as was the case in Rohlman v Hawkeye Security Insurance Company, 190 Mich App 540; 476 NW2d 461 (1991), rev'd, 442 Mich 520; 502 NW2d 310 (1993). The court held that the cases the parties were relying upon in support of their respective arguments regarding plaintiffs' status as "occupants" are cases which interpret the term "occupant" as used in the sections of the no-fault act dealing with priority disputes (§3114, §3115) or cases involving out-of-state accidents (§3111). The instant case involves neither a priority dispute nor an out-of-state accident.
The Court of Appeals held that the trial court properly allowed plaintiffs to recover PIP benefits, not because they were occupants of the vehicle, but because plaintiffs suffered "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" as required by §3105(1). The Court of Appeals held that the term "maintenance" has been given a broad definition, and here, the act of waiting to have their vehicle towed was construed by the court to be an active "maintenance" with the meaning of the no-fault act.
