Saginaw County Circuit Court; Docket No. 78-02351CZ-5; Unpublished
Judge GaryJEL McDonald; Written Opinion
Official Michigan Reporter Citation: Not Applicable: Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Occupying [§3106(1)(c)]
Requirement that Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
Calculating Attorney Fees Not Based on Contingent Fee [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this written Opinion following a bench trial, Judge McDonald applied the "occupancy test" stated in Nickerson v Citizens Mutual Insurance Company and found plaintiff bus driver to be an occupant of her bus even though at the exact moment of impact she was standing outside of the bus. The plaintiff had pulled her bus over to the side of the road as a result of intense fog which impaired visibility.
A bus behind her also did the same. When plaintiff exited her bus to tell the bus driver behind her that she was intending to return to the garage, a truck collided with the stopped busses causing serious injury to plaintiff. Judge McDonald cited the fact that the plaintiff was an occupant driver of her bus immediately prior to the accident and that she intended to return to that vehicle upon delivering the message to the other driver. She thereupon intended to continue driving her bus back to the garage. Based on all of these facts, plaintiff was an occupant under the definition enunciated in Nickerson.
Judge McDonald also ruled that plaintiff had been unreasonably denied no-fault benefits in this case where the only real question was not plaintiff’s entitlement to benefits but which insurance company was liable to pay same. The Court noted that both defendant insurance companies admitted the fact that benefits were due and owing but the question was only one of priority of payment. The Court also noted that one of the insurance companies had suggested to the other that either arbitration or declaratory judgment relief be initiated by the insurance companies so as to avoid imposing on the plaintiff the expense and burden of litigation. This suggestion was ignored. Accordingly, Judge McDonald held that plaintiff was entitled to recover attorney fees under §3148 from the recalcitrant insurance company (Auto-Owners) at the rate of $50 per hour for each hour expended by plaintiff’s counsel in advising and representing plaintiff.
