Hawkeye Security Insurance Company v Auto Club Insurance Association; (COA-UNP, 5/1/1990)
Michigan Court of Appeals; Docket No. 115661; Unpublished
Judges MacKenzie, Doctoroff, and T. G. Kavanagh; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Hawkeye Security Insurance Company v Auto Club Insurance Association; (COA-UNP, 1/24/1992)
Michigan Court of Appeals; Docket Nos. 141573 and 141574 (on remand);
Judges MacKenzie, Sullivan and Doctoroff
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Exclusion For Vehicles Considered Parked [§3106(1)]
Exception For Permanently Mounted Equipment Use [§3106(1)(b)]
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
CASE SUMMARY:
In the original decision of this case, the Court of Appeals in its unanimous per curiam Opinion affirmed the trial court's decision that Auto Club was obligated to provide liability coverage and defense in a situation where the injured plaintiff was injured while assisting the insured owner of the vehicle while operating an insulation blowing machine which was bolted to the floor of the subject's 1979 Chevrolet van. The van was used in the insured defendant's business to transport the blowing -machine to customers' homes. In the course of feeding insulation into the insulation blowing machine, the plaintiff suffered a severed right arm when it became caught in the running teeth of the machine. When the injured plaintiff sued the business Owner and operator of the vehicle, questions arose as to whether Auto Club owed a defense to the action. The Court of Appeals, in its original decision, used the "parked vehicle" provisions of the no-fault act, §3106(1)(b) to determine that the injury to the plaintiff gave rise to potential liability against the insured owner of the vehicle, because it was bodily injury arising out of the ownership, maintenance or use of an insured car as required by the liability insurance coverage portion of Auto Club's car. In its decision, the Court of Appeals construed the facts of this accident as satisfying the provisions of the Michigan no-fault act, §3106(1)(b) which defines the circumstances under which bodily injury is deemed to arise out of the ownership, operation, maintenance or use of a "parked vehicle." In that statute, it is provided that accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle unless the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used. In this case, there was no dispute that the injured person received his injuries as a direct result of physical contact with the insulating machine, which was mounted in the van. It was also clear that the injury occurred while the equipment was being operated. Based upon the facts of the accident, the court in its first opinion held that the defendant was required to assume the defense of the vehicle owner in the underlying liability action by the injured person.
The Supreme Court remanded the case for further consideration of the issues raised by Auto Club, including Auto Club's contention that the Court of Appeals had failed to consider that the coverage issue was one concerning the liability coverage rather than no-fault coverage.
On remand, the Court of Appeals held that the language of the liability insurance coverage section of Auto Club's policy was less restrictive than the language of §3106 because the liability contract provision did not require that the injury arise from the use of a motor vehicle "as a motor vehicle." Since the Court of Appeals had previously decided in its earlier opinion that the accident met the more stringent requirements of the no-fault act, the court affirmed on remand its earlier decision on the grounds that the lesser requirements of the general liability provision of Auto Club's policy had also been satisfied.
