Michigan Court of Appeals; Docket No. 128556; Unpublished
Judges Reilly, Holbrook, Jr., and Marilyn Kelly (with Judge Reilly, Concurring); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
CASE SUMMARY:
In this per curiam Opinion (Justice Reilly concurring), the Court of Appeals affirmed the trial court interpretation of a no-fault insurance policy containing language requiring payment of no-fault benefits to persons injured while "occupying" a motor vehicle, where the claimant was struck more than one-quarter mile from the van in which he had been riding.
The trial court had granted summary disposition in favor of the plaintiff, requiring defendant to pay PIP benefits in a situation where plaintiff left a van in which he had been a passenger after the van broke down, and while walking approximately one-quarter to three-quarters of a mile to obtain help, was struck and seriously injured by a hit-and-run driver. Plaintiff had no automobile insurance of his own, and sought coverage through Farmers Insurance Exchange which insured the van in which he had been riding. The insurance contract provides that Farmers will pay no-fault benefits to an "insured person," and an insured person is defined as any person "occupying" the van. Occupying is defined in the contract as "in, on, getting into or out of." The contract also provides uninsured motorist benefits to an insured person, including "any person while occupying" the van who is entitled to recover damages from the owner or operator of an uninsured motor vehicle.
In affirming the trial court holding in favor of the plaintiff, the Court of Appeals relied upon its decision in Rohlman v Hawkeye Security Insurance Company, 190 Mich App 540 (1991), Iv app granted, 440 Mich 873 (1992). In Rohlman, the word "occupying" contained in an insurance contract was interpreted to provide coverage in a situation where the injured person had left the insured vehicle and walked across the road to retrieve a utility trailer which had broken loose from the vehicle. In Rohlman, the majority determined that Nickerson v Citizens Mutual Insurance Company, 393 Mich 324 (1975) was controlling, and that as a matter of law, the contract term "occupying" covered the plaintiff, even though at the time of the accident, he was some distance from the vehicle. The court held that the greater distance involved in the present case was not a distinguishing factor. Both Rohlman and Webb left their vehicles in which they had been riding for the purpose of "remedying an immediate problem involving the vehicle and both intended to resume travel in the vehicles as soon as they accomplished their tasks." Therefore, the trial court order granting summary disposition in favor of plaintiff was affirmed.
However, with respect to the trial court determination that plaintiff was entitled to uninsured motorist benefits, the Court of Appeals held that this ruling should be reversed. According to the contract, the insurance company agreed to pay all sums which an insured person was entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the injured person. Although it is undisputed that plaintiff was struck by a hit-and-run driver, the vehicle which struck plaintiff did not qualify as "an uninsured motor vehicle" under the contract, as it did not strike a member of the van owner's family or a vehicle which a member of the van owner's family was occupying. The insurance policy specifically defined an uninsured motor vehicle so as to include a hit-and-run driver whose operator or owner has not been identified and "which strikes either a member of the insured vehicle's family, or a vehicle in which a member of the insured's family was occupying."
Judge Reilly in a concurring opinion stated that she was not convinced that the term "occupying" in an insurance contract should be given an expansive definition beyond the ordinary meaning of the word. However, she agreed that the Rohlman decision was controlling.
