Michigan Court of Appeals; Docket No. 121734; Published
Judges Michael J. Kelly, MacKenzie, and Brennan; 2-1 (with Judge MacKenzie, Dissenting)
Official Michigan Reporter Citation: ___; Link to Opinion 
STATUTORY INDEXING:
General Rule of Priority [§3114(1)]
Exception for Employer Provided Vehicles [§3114(3)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 published Opinion by Judge Michael J. Kelly, the Court of Appeals affirmed the trial court grant of summary disposition in favor Michigan Mutual Insurance Company in a priority dispute interpreting the priority provisions of §3114(3) which governs priority in the situation where an employee sustains accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer.
In this case, the claimant, Louis Boutilier, was in the course of his employment using a vehicle owned by his employer and insured by Michigan Mutual, when he sustained accidental bodily injury. The claimant was stopped at a service station, had exited the vehicle, and was pumping gas into the vehicle when the fumes ignited causing burns to his body. Michigan Mutual denied benefits on the ground that Boutilier was not an occupant of the vehicle within the meaning of §3114(3). That section is part of the priority provisions of the no-fault act which provides that an employee who suffers accidental bodily injury "while an occupant" of a motor vehicle owned or registered by his employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
In upholding the trial court determination that the claimant was not an occupant of the employer's vehicle, the court relied upon the prior decision in Royal Globe Insurance v Frankenmuth Mutual Insurance, 419 Mich 565 (1984) (Item No. 777) which held that the word "occupant" should be given its generally understood meaning. Construing the word "occupant" in accordance with its generally understood meaning, the court held that the claimant who was standing outside of the vehicle pumping gas into it was not an occupant within the meaning of §3114(3). The court found support in the decision of Hackley v State Farm Insurance, 147 Mich App 115 (1985), Iv den, 424 Mich 907 (1986) (Item No. 872), which held that the claimant was not considered to be an occupant of a vehicle when he was standing over the rear engine compartment and struck by an oncoming vehicle.
The majority also rejected the argument by Auto Club that the court should pierce the corporate veil and find that Boutilier was indeed a named person in the employer's insurance policy, thereby rendering Michigan Mutual liable for Boutilier's no-fault benefits under §3114(1).
In her dissent, Judge MacKenzie would hold that an employee refueling an employer's automobile during the course of employment was an occupant for purposes of §3114(3). Unlike the situation in Royal Globe, the claimant here had not reached his final destination at the time he was injured and intended to return to the interior of the vehicle once he finished refueling. Judge MacKenzie would hold that the claimant had not gone from the status of a passenger to a pedestrian, but instead, at all times retained the status of operator who was performing a task necessary for vehicular travel.
