Michigan Supreme Court; Docket No. 81973; Published
Judges Riley, Levin, Brickley, Griffen, and Boyle; 5-2; (Judge Cavanagh and Archer Dissenting)
Official Michigan Reporter Citation: 433 Mich 446; Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Permanently Mounted Equipment Use [§3106(1)(b)]
Exception for Loading / Unloading [§3106(1)(b)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 5-2 decision by Justice Griffin, the Supreme Court reversed the Court of Appeals (Item No. 1084) and held that plaintiff was not entitled to receive no-fault benefits for an injury that occurred when a slab of concrete sidewalk being raised by a tow truck, slipped off its hook and fell onto plaintiffs hand. The court ruled that the tow truck was parked within the meaning of §3106(1) of the Act and that none of the exceptions set forth in §3106(1) were applicable. Therefore, plaintiff was not entitled to benefits.
The motor vehicle involved in plaintiffs injury was a tow truck that had been backed over a curb and situated perpendicular to the street. A hook at the end of the tow truck's winch cable was attached to the slab of concrete and then the concrete was lifted off the ground. While the tow truck was lifting the slab, the hand brake was set and the front wheels were up against the curb so as to immobilize them. With the truck in neutral gear, the operator raised and lowered the hook by operating controls located outside and at the back of the truck. While one of the concrete slabs was suspended, a piece of the concrete broke off at the hook causing the slab to fall upon plaintiffs hand.
In denying no-fault benefits, the Supreme Court employed the following analysis. First, the court held that the pickup truck was a "parked vehicle" within the meaning of the No-Fault Act, even though the court did not specifically set forth a definition of parked vehicle. The court simply noted, "the tow truck in this case was parked within any reasonable definition of that term. The truck was positioned perpendicular to the street with the front wheels against the curb and the hand brake was set.”
Because the vehicle was parked, the court then looked at §3106 to determine if any of the three exceptions applied, so as to render the injury as being one which arose out of the ownership, operation, maintenance or-use of a motor vehicle as a motor vehicle. In this regard, the court examined its earlier decision in Miller v Auto-Owners (Item No. 431). There, the court held that where an injury arose out of "maintenance" it was unnecessary to consider whether the vehicle was parked and unnecessary to determine whether any of the three parked vehicle exceptions were applicable. In the case at bar, the court declined to extend Miller beyond maintenance situations and stated, "we caution that the Miller holding is limited to the narrow circumstances of that case. In the instant case, maintenance of a motor vehicle is not involved and absent that involvement we detect no tension between §3105(1) and §3106(1)."
The court then determined whether or not the exceptions set forth in §3106(l)(b) applied to this injury. That exception permits recovery where "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 or property being lifted onto or lowered from the vehicle in the loading or unloading process." The court held mat this subsection requires that the injury must directly result from actual physical contact between the injured person and vehicle equipment. The court felt that the Legislature's use of the words "direct result" and "physical contact" “fortifies the legislative intent that the injured person's body must come into contact with the equipment" In this case, the plaintiff’s hand did not come into contact with any vehicle equipment, but rather, came into contact only with the concrete slab. The court also found no coverage under the second prong of §3106(l)(b) which permits recovery where the injury is the direct result of physical contact with property being lifted onto or lowered from the vehicle. Here, the court stated, "It is undisputed that the cement slab in the instant case was not being lifted onto or lowered from the tow truck. No such operation was attempted. The sole purpose of lifting the sidewalk slab was to enable plaintiff to work under it. At no time did anyone intend to load the slab onto the truck."
In rendering its holding, the majority also limited its previous opinion in Biaiochowski v Cross Concrete Pumping Company (Item No. 1021). The court stated, "Although Biaiochowski utilized the interpretive tool of liberal construction, the reach of its holding should not be exaggerated. Insofar as it related to the 'as a motor vehicle' language, Biaiochowski decided a narrow issue: whether a dual-purpose vehicle is necessarily not in use as a motor vehicle when it is being used for a non-locomotive purpose. Biaiochowski held that coverage is not necessarily precluded solely because there was no Vehicular movement' at the time of the injury."
Justice Cavanagh, with Justice Archer joining, wrote a dissenting opinion wherein he stated, "I would hold that once it is determined that a dual purpose vehicle, such as the cement truck in Biaiochowski and the tow truck in this case, was being used for one of its intended purposes and was, therefore, in use as a motor vehicle under §3105(1), no-fault coverage is available for injuries which arose out of that use without regard to whether the vehicle might be considered parked."
