Michigan Court of Appeals; Docket No. 304557; Unpublished
Judges Cavanagh, Saad, and Riordan; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]
Exception for Motorcycle Injuries [§3114(5)]
Exception for Unreasonably Parked Vehicles [§3106(1)(a)]
Conduct Establishing Unreasonable Delay or Denial [§3148(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals rendered three separate holdings: (1) that a genuine issue of material fact existed regarding whether the defendants (two motorcyclists) were “involved” in an accident with a motor vehicle under the meaning of MCL 500.3114(5), because sufficient evidence was presented to support a finding that there was contact between the Bozung motorcycle and the motor vehicle, or (2) [the driver of the motor vehicle unreasonably parked the motorvehicle in the middle of the road; (2) that the defendant motorcyclists' injuries “arose out of” the operation of the motor vehicle as a motor vehicle under MCL 500.3105, because Defendant motorcyclists’ injuries were a direct result of Defendant Bozung’s attempt to avoid hitting the motorvehicle with his motorcycle; and (3) thathe defendants were not entitled to recover penalty attorney fees under MCL 500.3148 because factual uncertainties made an award of attorney fees improper.
The Plaintiff in this case brought this action seeking a declaration that the defendant motorcyclists were not “involved” in an accident with its insured's Suburban for purposes of MCL 500.3114(5). The Suburban was stopped in the middle of the road while waiting to make a left turn. While approaching the Suburban from behind, defendant Bozung “laid down his motorcycle” to avoid hitting the Suburban. As a result, defendant Bozung and his wife (who was riding on the motorcycle as a passenger) flew off the motorcycle and sustained injuries. The Bozung motorcycle then slid into the oncoming lane of traffic into defendant Stowell’s motorcycle, injuring both Mr. and Mrs. Stowell. Defendants Bozung and Stowell made a claim for no-fault PIP benefits on the basis that the accident “involved”a motor vehicle under the meaning of MCL 500.3114(5). Plaintiff Grange denied the defendants’ claim, contending that its insurd' Suburban was no “involved in the accident” for purposes of the No-Fault Act. The Court of Appeals held that there was a genuine issue of material fact regarding whether the Suburban was “involved” in the accident.
In so holding, the court found that “there are two ways that the Heimlich Suburban could have been involved in the accident, (1) if there was contact between the Bozung motorcycle and the Heimlich Suburban, or (2) if [the driver of the Suburban] placed the Suburban in park while waiting [to turn].” With respect to whether Mr. Bozung’s motorcycle made physical contact with the Suburban, the court first noted that "[i]f there was contact, then the Heimlich Suburban was, as a matter of law, involved in the accident under MCL 500.3114(5)." The Court then found that there was sufficient evidence from which it could be concluded that such contact was made, explaining:
“Evidence showed that, at the scene of the accident, Mr. Heimlich told [the responding police officer] that he felt the Bozung motorcycle strike his Suburban. However, Mr. Heimlich testified at his deposition that he did not feel an impact. In his affidavit, Mr.Bozung stated that his body and motorcycle made physical contact with Mr. Heimlich’s vehicle. According to Mr. Bozung, his motorcycle hit the rear tire of Mr. Heimlich’s Suburban and then deflected into the westbound lane. Further evidence showed that there was damage to the rear bumper and side mirror of the Heimlich Suburban. Mr. Stowell also reported that the Bozung motorcycle hit one of the vehicles stopped in the eastbound lane. These conflicting statements created a question of fact regarding whether there was contact between the Bozung motorcycle and the Heimlich Suburban.”
With respect to whether the Heimlich Suburban was “parked” at the time of the accident, the court explained that under MCL 500.3106(1), “[a]n individual can recover PIP benefits for an accidental bodily injury arising out of the ownership, operation, maintenance, or use of a parked vehicle, when that vehicle is parked ‘in such a way as to cause unreasonable risk of the bodily injury which occurred.’” The court then explained that, “If the Suburban was parked, it was parked unlawfully in the middle of [the road] and it would be irrelevant whether there was physical contact between the Bozung motorcycle and the Heimlich Suburban.” After making this observation, the court then found that there was sufficient evidence from which a reasonable jury could conclude that the Suburban was unreasonably parked. The court reasoned:
“Mr. Bozung stated in his affidavit that he did not see any brake or tail lights on the Heimlich Suburban. Mr. Heimlich testified at his deposition that he kept his Suburban in drive while stopped behind a car waiting to turn left on Eagle Point Road. [The responding officer] verified at the scene that the brake and tail lights on the Suburban were working properly. Thus, conflicting evidence created an issue of fact regarding whether the brake lights on the Heimlich Suburban were activated at the intersection where the accident occurred.”
The court next held that a sufficient causal nexus existed between the Suburban and the accident under the circumstances to find that the defendants’ injuries arose out of “the ownership, operation, or use of a motor vehicle as a motor vehicle.” In so holding, the court reasoned that, Defendants’ injuries were a direct result of Mr. Bozung’s attempt to avoid hitting the Suburban. Thus, the injuries arose from the use of the Heimlich Suburban as a motor vehicle.”
Given the foregoing factual discrepancies, the Court of Appeals then went on to hold that the defendants were not entitled to penalty attorney fees under MCL 500.3148. In this regard, the court reasoned that, “Plaintiff’s refusal to pay benefits was reasonable. There was conflicting evidence regarding whether the Bozung motorcycle hit the Heimlich Suburban and whether the Heimlich Suburban’s brake lights were activated. Given the factual uncertainties, an award of attorney fees on this basis would have been improper.”
