Michigan Court of Appeals; Docket No. 54535; Published
Judges Maher, Walsh, and Riley; Unanimous; Per Curiam
Official Michigan Reporter Citation: 112 Mich App 497; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Exclusion for Vehicles Considered Parked [§3106(1)]
General Rule of Priority [§3114(1)]
Exception for Occupants [§3114(4)]
Equal Priority Situations [§3114(6)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous, per curiam Opinion by Judge Maher, the Court of Appeals made several significant holdings regarding the payment of benefits in accidents involving parked and moving vehicles and determinations of "occupancy."
First, the Court cited with approval the decision in Gutierrez v Dairyland Insurance Company (item number 454) that where an accident involves both a moving vehicle and a parked vehicle, the parked vehicle provisions of §3106 are irrelevant unless there is no causal connection between the accident and the moving motor vehicle. The Court stated, "Recently in Gutierrez v Dairyland Insurance Company. . . . this Court addressed a similar situation involving a parked vehicle and a moving vehicle. According to Gutierrez, where a claimant suffers accidental bodily injury arising out of the ownership, operation, maintenance or use of a moving motor vehicle as a motor vehicle, the additional involvement of a parked vehicle is irrelevant to the issue of whether such a claimant is entitled to recover no-fault benefits. Under this approach, analysis of an accident under the parked vehicle exclusion is unnecessary unless there is no causal connection between the use, etc. of a moving vehicle and the injury. Clearly, the legislature did not intend the parked vehicle exclusion to apply to accidents involving both a parked vehicle and a moving vehicle except where the involvement of the moving vehicle is merely incidental or fortuitous." With regard to this particular holding, Judge Maher made it clear in footnote 2 that he specifically disavowed any implication in his opinion in Gutierrez that a claimant must establish the applicability of one of the three exceptions in the parked vehicle provisions of §3106 where an accident involves both a moving vehicle and a parked vehicle.
The second issue confronting the Court was whether or not the plaintiff was an "occupant" of his employer's vehicle for purposes of establishing priority of payments. In this case, the plaintiff was a beer truck driver who was run over by a moving vehicle while making trips between his beer truck and a customer's store. The plaintiff had already made two trips and was on his third at the time he was run over. Applying the analysis utilized in Nickerson v Citizens, 393 Mich 324, the Court concluded that the plaintiff was not an occupant of the beer truck at the time of injury because there was no "immediate prior occupancy" at the time of injury. The Court stated, "We are uncertain whether the Supreme Court would hold that physical contact is necessary to a finding of 'occupancy' under the priority provisions of the No-Fault Act Nevertheless, even if physical contact is not required, we are convinced that absent physical contact, immediate prior occupancy — at the very least — is necessary to a finding of occupancy under §3114 and §3115 of the No-Fault Act Plaintiff had gone back and forth between the store and his employer's vehicle twice and was on his third trip to the store when he was struck by another vehicle. Accordingly, we hold that plaintiff was not an 'occupant' of a motor vehicle at the time of the accident."
Finally, the Court made an important holding with regard to the recovery of attorney fees under §3148 in cases involving priority disputes. In this case, the trial court ruled that the two defendant insurance companies were guilty of an unreasonable refusal to pay benefits and ordered each defendant to pay one half of plaintiff’s reasonable attorney fee. The Court of Appeals upheld this ruling and went on to state that in cases involving pure priority disputes, insurance companies should share the payment of a claimant's no-fault benefits and settle their differences between themselves without requiring plaintiff to file a suit The Court stated, "Plaintiff was undoubtedly entitled to no-fault benefits; the only legitimate dispute was between the two defendant insurance companies. Under these circumstances insurance companies can avoid liability for attorney fees by sharing the payment of such a claimant's no-fault benefits and then settling their differences among themselves. A claimant who is clearly entitled to
no-fault benefits should not be forced to hire an attorney merely because the circumstances of his accident create problems of priority among insurers."
