Ottawa County Circuit Court; 78-4304-NZ; Unpublished
Judge Calvin L. Bosman; Written Opinion
Official Michigan Reporter Citation: 96 Mich App 763; Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Permanently Mounted Equipment Use [§3106(1)(b)]
Exception to General Priority for Non-Occupants [§3115(1)]
Determination of Involved Vehicle [§3115]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In a written Opinion followed by a supplemental opinion that was premised on the Court of Appeals decision in Heard v State Farm, 93 Mich App 50 (item number 238), Judge Bosman held that a gas station attendant who was struck by a moving vehicle while refueling a stationary vehicle at a service station pump, falls within the parked vehicle exception of the no-fault statute as set forth in §3106(b). This is so because, "The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process." Judge Bosman strongly disagreed with that interpretation but felt constrained to adopt it in light of the Court of Appeals opinion in Heard, supra.
As a result of this application of the Heard case, the stationary vehicle that was having gasoline pumped into it was considered to be "involved" in the accident under §3115(2) of the Act. Thus, where the striking vehicle was uninsured (and where the plaintiff did not have any no-fault coverage of his own) the plaintiff could turn to the stationary vehicle for PIP benefits. Because benefits were available from the stationary vehicle, Judge Bosman ruled that under §3172 (the Assigned Claims plan) it was improper to assign the claim to another insurance company inasmuch as a prerequisite to seeking no-fault benefits through the Assigned Claims plan is that there be no personal protection insurance applicable to the injury. Such was not the case in this litigation as PEP benefits were available from the stationary vehicle.
