Michigan Court of Appeals; Docket No. 144505; Unpublished
Judges Gribbs, Holbrook, and Neff; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Loading / Unloading [§3106(1)(b)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals held that the parked vehicle exclusions of §3106(2) did not apply to bar plaintiffs claim for no-fault benefits.
In this case, plaintiff was a truck driver who was burned by hot asphalt which was accidentally dumped into the cab of his truck while he was waiting for the truck trailer bed to be filled with the asphalt. Plaintiff had positioned his truck into the appropriate spot under an asphalt silo, left the engine running, put the truck in neutral and activated the parking brake. He remained in the cab of the truck because in order to load the asphalt properly, plaintiff was required to pull the truck forward to evenly distribute the weight of the asphalt in the truck bed as the asphalt was being loaded. As plaintiff was waiting in the truck cab, another asphalt silo shoot accidentally opened, dumping about 7 1/2 tons of hot asphalt on top of the cab of the truck. The asphalt came into the cab trapping plaintiff inside. He sustained burns and other injuries.
The trial court and the Court of Appeals rejected the argument of defendant that plaintiff was barred from receiving no-fault benefits because of the parked vehicle provisions of §3106(2) which precludes payment of benefits in parked vehicle situations for those workers who are injured loading, unloading or doing mechanical work on a vehicle. The Court of Appeals agreed with the trial court that the truck in this case was not a "parked vehicle" and therefore §3106 did not apply. The court noted, "When the accident occurred, Tollers was sitting in the cab of the truck with the engine running waiting to move the truck to more easily facilitate the loading process. The truck was in neutral with the parking brake on. We cannot conclude under these facts that the truck was a parked vehicle." The court went on to say that even if the truck was considered parked, the loading/unloading exclusion did not apply because Tollers was not participating in the loading of the truck when the hot asphalt was accidentally dumped into the cab of the truck, although he was waiting to do so.
