Michigan Court of Appeals; Docket No. 80298; Published
Judges Wahls, Gillis, and Everett; Unanimous; Per Curiam
Official Michigan Reporter Citation: 147 Mich App 115; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Vehicle Maintenance [§3106]
General Rule of Priority [§3114(1)]
Exception to General Priority for Non-Occupants [§3115(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
The major issue resolved in this unanimous per curiam decision was a priority dispute involving the interpretation to be given to the term "occupant" as used in §3114 and §3115 of the act. Plaintiff sustained serious injuries when he was struck by a car while standing behind his disabled Volkswagen examining the engine. Plaintiff had been traveling down the expressway when the vehicle's engine stalled. Plaintiff attempted to steer the vehicle off the roadway but it had insufficient momentum. When the vehicle came to rest, its rear portion intruded into the right lane, partially blocking the road. Plaintiff immediately exited the vehicle, went to the rear and was bent over inspecting the engine when he was hit.
The Court of Appeals ruled that plaintiff was not an occupant of the Volkswagen at the time of the injury. The court rejected the liberal occupancy interpretation adopted in the pre no-fault decision of Nickerson v Citizens Mutual. Instead, the court relied on the recent Supreme Court decision in Royal Globe v Frankenmuth Mutual (Item No. 777). The court observed that the recent trend in appellate court decisions has been to back off of the Nickerson test. The court stated, "In a greater number of cases, panels of this court have expressed a reluctance to apply Nickerson's broad definition of the term." The court went on to say:
"Construing the term in a manner commanded by the Royal Globe court, we find that plaintiff was not an occupant of this vehicle when he was struck by the oncoming truck. Plaintiff was standing behind the Volkswagen inspecting the engine when the accident occurred. Thus, he was not inside the vehicle, nor was he in the process of entering or exiting the same. Under these facts, only by utilizing the 'immediate prior occupancy’ test derived from Nickerson could we conclude that plaintiff was an occupant. However, since the validity of this test for use in construing the provisions of the no-fault act was rejected in Royal Globe, we conclude that plaintiff was not an occupant of the Volkswagen as that term is used in §3114(4). Therefore, looking to the priority provisions of §3115(1), we find State Farm, as insurer of the owner of the motor vehicle involved in the accident, responsible for the payment of no-fault benefits to plaintiff."
In reaching its holding, the court emphasized that the issue here is not one of entitlement but rather priority. Therefore, there were not strong policy considerations militating in favor of a liberal definition of occupancy.
In the initial portion of the Opinion, the court left little doubt that plaintiff was entitled to first-party benefits and that the parked vehicle provisions of §3106 were not a barrier to recovery. The court stated that, "Since the evidence established that plaintiff was in the process of inspecting the vehicle's engine to determine the cause of the stalling, the injury clearly arose out of the maintenance of the vehicle." Furthermore, the court stated that the parked vehicle provisions of §3106 did not preclude recovery in that plaintiff’s vehicle was "parked in such a way as to cause unreasonable risk of the bodily injury which occurred" within the meaning of §3106(1 )(a).
