Michigan Court of Appeals; Docket No. 140734; Unpublished
Judges Holbrook, Jr., Gribbs, and Sawyer; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals interpreted the phrase "using an automobile" in an omnibus clause contained in a general liability insurance policy issued by plaintiff Home Indemnity Company to plaintiff Magee Industrial. The court determined that Magee Industrial was not "using" a tractor-trailer after it had been completely loaded and left Magee Industrial's plant.
In this case, plaintiffs Home Indemnity and Magee sought to have the court determine that defendant Michigan Mutual Insurance was obligated to defend Magee in a negligence action brought by Ferrante, who was injured when a tractor-trailer in which he was riding tipped over.
Ferrante, the injured party, was an employee of Wolverine Express Trucking which was insured for no-fault automobile purposes by Michigan Mutual. Under a well established business practice between Magee Industrial and Wolverine, a Wolverine driver hauled an empty trailer from Detroit to Magee Industrial's plant in Pennsylvania, would leave the empty trailer with Magee Industrial, and pick up the waiting trailer already loaded with rolls of carpet for further transport. Magee Industrial's employees would be responsible for loading the trailer.
After dropping off the empty trailer at Magee, the Wolverine employee, Ferrante, picked up a loaded trailer and left for Detroit. A short distance away, the tractor-trailer tipped over, injuring Ferrante. After Ferrante sued Magee Industrial, Home Indemnity defended Magee, and thereafter, sought through declaratory judgment a determination that Michigan Mutual was obligated to defend Magee under an "omnibus insured" clause in Michigan Mutual's policy with Wolverine. The omnibus clause of Wolverine's policy with Michigan Mutual provided that an insured included the following:
"Anyone else is an insured while using with your permission a covered auto you own, hire or borrow..."
Home Indemnity, the general liability insurer of Magee Industrial, contended that Magee Industrial was an insured under Michigan Mutual's no-fault policy because Magee had loaded the trailer and was using it to transport carpet when the vehicle overturned.
In construing the phrase "using an automobile," the Court of Appeals acknowledged that for purposes of an omnibus clause, using an automobile is not limited to operating or having the benefit of the automobile, but includes doing something "to or with" an automobile. Michigan Mutual Liability Company v Ohio Casualty Insurance Company, 123 Mich App 688 (1983). However, the Court of Appeals in this case determined that merely loading or unloading a vehicle does not constitute "use" of that vehicle for purposes of the omnibus insurance clause. The Court of Appeals affirmed the trial court ruling and held that Magee Industrial was not "using" the tractor-trailer at the time Ferrante was injured. The court held that Magee Industrial's use of the tractor-trailer ended when it finished loading it with carpet Here, Magee Industrial completed loading the trailer and returned control of it to Wolverine's employee, Ferrante, before it overturned. Such activity does not constitute using the tractor-trailer at the time of the accident within the meaning of the omnibus clause.
