Michigan Court of Appeals; Docket No. 62145; Published
Judges Cynar, Kaufman, and MacKenzie; 2-1
Official Michigan Reporter Citation: 127 Mich App 138; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
CASE SUMMARY:
This is a rather confusing 2-1 Opinion involving a slip and fall injury which was suffered by Eugene Robinson in connection with loading a hydraulic jack into his truck in a repair garage. Mr. Robinson sued the garage owner for negligence. The garage owner's insurer (Ohio Casualty) brought this declaratory action to establish that the garage owner is also an "insured" under Mr. Robinson's personal automobile policy with Transamerica. As such, Ohio Casualty and Transamerica would be jointly responsible for plaintiff’s damages.
Based upon the language of the Transamerica policy, the Court reversed the trial court's conclusion that the garage owner was covered under the Transamerica policy, ruling to the contrary, that such coverage was specifically excluded by the language of the policy.
After-reaching that conclusion, the majority then explores a new issue; to-wit: whether Mr. Robinson's no-fault first party automobile insurance coverage with Transamerica constitutes his "primary source of recovery." On this issue, the majority voted to remand the case to the trial court for further proceedings. In raising this issue, the Court noted that two panels of the Court of Appeals previously held that the No-Fault Act preempted the garage keeper's liability act [Buckeye Union v Johnson (item number 440) and Liberty Mutual v INA (item number 541)]. Furthermore, the majority cited a few first party priority cases which, it stated, stood for the proposition there should be no pro rata liability in cases involving automobile injury. In this regard, the Court observed that these cases "stand for a system of priorities involving primary and secondary Liability." Therefore, in light of all of the foregoing, the majority (apparently on its own and without the suggestion of the litigants) raised the issue of whether the automobile no-fault policy was the exclusive source of recovery.
Judge MacKenzie concurred in part and dissented in part She agreed that the specific policy exclusions contained in the Transamerica policy controlled and, as a result, Transamerica did not have a duty to provide any coverage or a defense in this negligence action.
However, as to the "primary source of recovery" issue, Judge MacKenzie dissented. She gave several reasons for her dissent. First, she stated that no such issue, had been raised by the parties and it was thus not properly a part of this case. Second, she noted that Mr. Robinson's no-fault insurance contract was not his primary source of recovery if his negligence action falls within one of the exceptions to the abolition of tort liabilities stated in §3135.
Finally, she stated that the Supreme Court's opinion in Citizens v Tuttle (item number 299) clearly held that the No-Fault Act did not abolish liability of a defendant whose wrongful act did not involve his ownership, maintenance or use of a motor vehicle even though the action may have also arisen out of the plaintiff’s ownership, maintenance or use of a motor vehicle. Thus, it was Judge MacKenzie's feeling that the suggestion of the majority that the no-fault policy was the primary and exclusive source of recovery was in direct conflict with the Supreme Court's opinion in Citizens v Tuttle.
[Author's Comment: It is respectfully submitted that Judge MacKenzie's analysis of the "primary source of recovery" issue is correct. Although the garage keeper's act may ultimately be read to preclude recovery of first party property protection insurance benefits in cases falling under the garage keeper's act, the Supreme Court in Citizens v Tuttle has clearly ruled that the tort abolition provisions of the No-Fault Act are not involved in any way in actions brought against non motorist tortfeasors. The relationship between the garage keeper's act and first party no-fault coverage, however, has produced a split of authority at the Court of Appeals level.]
