Michigan Court of Appeals; Docket No. 65392; Published
Judges Danhof, Allen, and Dodge; Unanimous; Per Curiam
Official Michigan Reporter Citation: 132 Mich App 603; Link to Opinion 
STATUTORY INDEXING:
General Rule of Priority [§3114(1)]
Exception for Occupants [§3114(4)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion the Court of Appeals dealt with the question of whether plaintiff, who was not physically inside any motor vehicle at the time she was run over by another automobile at an accident scene, should be considered an "occupant" of any of the vehicles present for purposes of establishing priority of benefits. Plaintiff was a passenger in a Pontiac which was struck by a Rambler. Immediately after die collision, plaintiff exited the Pontiac to exchange personal and vehicle identification information. In the process of doing this, plaintiff was struck by a third vehicle (an uninsured Dodge). Plaintiff was struck by this second vehicle three to five minutes after leaving the Pontiac.
This panel of the Court of Appeals applied the Supreme Court's analysis in Nickerson v Citizens Mutual and held that the plaintiff was an occupant of the Pontiac at the time of the second accident In applying the Nickerson analysis the Court noted that the plaintiff had been a passenger in the Pontiac immediately prior to the injuries and had only left that vehicle for purposes of exchanging identification and information. Presumably the plaintiff would have returned to the Pontiac. Therefore, the plaintiff should be considered an occupant of the Pontiac even though not in physical contact with it at the time of the second collision. Apparently plaintiff had no no-fault policy of her own. Therefore, under §3114(4) benefits would be payable by the insurer of the Pontiac.
[Author's Comment: It is very difficult to garner much more than the above from this opinion because of what appears to be a fundamental misunderstanding by the panel as to what sections of the Statute apply. The opinion focuses entirely upon the parked vehicle provisions of §3106 and whether plaintiffs injury falls within one of the three subsections. Specifically, the Court focused on whether the plaintiff was considered to be "occupying" under §3106(c). It is respectfully submitted that this is totally irrelevant to the issues presented in this case. Plaintiffs injury arose out of the ownership, operation, maintenance or use of a motor vehicle under §3105 by virtue of the fact she was run over by a moving automobile. The fact that the Pontiac and the Rambler may have been stationary (i.e. parked) at the time of the accident has nothing to do with the availability of benefits or who pays them. The question of nonoccupying" becomes important as a priority of payment issue under §3114(4). This section says that if an accident victim is not covered under their own personal no-fault policy they are to obtain benefits from the insurers of the vehicle occupied. If no vehicle was occupied, then such an individual would recover benefits from vehicles involved in the accident under §3115(1). This entire analysis is absent from the opinion.]
