Michigan Court of Appeals; Docket No. 68325; Published
Judges Kelly, Burns, and Benson; 2-1; Opinion by Judge Benson
Official Michigan Reporter Citation: 130 Mich App 585; Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Unreasonably Parked Vehicles [§3106(1)(a)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this 2-1 Opinion by Judge Benson, the Court of Appeals reversed the trial court's decision awarding no-fault benefits to a motorcyclist who ran into a parked automobile during the evening hours. The automobile was parked in an area posted as a no parking zone after 2:00 a.m. Plaintiff motorcyclist claimed he was entitled to recover no-fault benefits under the parked vehicle provisions of §3106(l)(a) permitting recovery where the parked vehicle is "parked in such a way as to cause unreasonable risk of the bodily injury which occurred." Plaintiff claimed he 'satisfied this provision because, at the time of the accident, the automobile was illegally parked and that the owner of the automobile testified he was aware of several previous accidents which had occurred in this area.
In reversing the trial court's ruling awarding benefits to plaintiff, Judge Benson analogized to the treatment of a violation of an ordinance in negligence law. Before such a violation can be considered evidence of negligence, the court must first determine that the purpose of the ordinance was to prevent the type of injury and harm suffered. Traffic ordinances which prohibit parking only after 2:00 a.m. are usually intended to assist in the identification of abandoned, stolen or junk automobiles or to allow for a specific period during which the streets are cleared of all vehicles so that they may be cleaned, or both. The Court stated that it was unaware of "any such ordinance which is intended to protect motorcyclists or other motorists from colliding with parked vehicles. Plaintiff offered no evidence that the ordinance prohibiting parking on the east side of Industrial Avenue after 2:00 a.m. was intended to protect drivers, including himself, from collisions with stationary vehicles." However, the Court noted in a footnote that it was not ruling that a proven violation of a no parking ordinance could never be considered evidence of an unreasonably parked vehicle. For instance, a vehicle parked in the violation of an ordinance prohibiting parking during rush hour on a busy street could be found to come within §3106(l)(a).
Perhaps the most significant aspect of this opinion is its analogy to the Supreme Court's opinion in Cassidy v McGovern (item number 657). Citing some of the same considerations which were mentioned by the Supreme Court in Cassidy in support of its conclusion that threshold issues present matters of statutory construction, Judge Benson's majority opinion held, "We believe that these same considerations compel the conclusion that whether a motor vehicle 'was parked in such a way as to cause unreasonable risk of the bodily injury which occurred' within the meaning of §3106(l)(a) is an issue of statutory construction for the court.” However, in footnote number 3 the Court qualified both the Cassidy holding and its application of the rule to §3106 issues with this language; "In Cassidy, the Court recognized that in a case where the facts were in dispute and this dispute straddled the line demarcating those injuries which do and do not constitute a serious impairment of body function, the issue is to be submitted to the jury. Similarly, by analogy to Cassidy, if a factual dispute exists which straddles the line of demarcation between whether the vehicle 'was parked in such a way as to cause unreasonable risk of the bodily harm which occurred,' the issue is to be resolved by the fact finder."
Judge Kelly dissented. He disagreed with the majority's analogy to Cassidy. In dissenting, he stated, "I believe that "the majority's analogy between the serious impairment question and the parked car question constitutes a significant expansion of the rule announced in Cassidy. I also believe that the analogy is premature and unnecessary in this case." Judge Kelly would also hold that the record demonstrated the trial court justifiably treated the parked vehicle issue as a question of fact, the resolution of which was not clearly erroneous.
[Author's Comment: Footnote number 3 in the above decision may have important implications with regard to application of the Cassidy summary judgment rule in third-party tort threshold cases. This panel apparently reads Cassidy as clearly stating that the threshold issue is to be submitted to a jury where the facts are "in dispute and this dispute straddles the line demarcating those injuries which do and do not constitute a serious impairment of body function."
