Michigan Court of Appeals; Docket No. 77-4726; Published
Judges T. Burns, Walsh, and Gillis; 2-1
Official Reporter Citation: 90 Mich App 215; Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Entering Into or Alighting From [§3106(1)(c)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In the first appellate court decision dealing specifically with §3106(c) of the no-fault statute, the Court of Appeals, in a 2-1 opinion per Judge T. M. Burns, held that a plaintiff who had temporarily parked her car and was in the process of going around it to remove a child from the back seat when she slipped and fell on a defect in the pavement was entitled to recover first party benefits under the parked vehicle provisions of §3106(c) in that plaintiff sustained her injury while "occupying, entering into or alighting from the vehicle." In so holding, the majority adopted the analysis employed by the Michigan Supreme Court in the case of Nickerson v Citizens Mutual, 393 Mich 324 (1975), dealing with the definition of "occupying." In Nickerson, the Supreme Court rejected the "physical contact" theory as a precondition to being deemed an occupant. The Court suggested that the appropriate inquiry is to determine the intent of the injured person with regard to the automobile. Accordingly, even if a person is temporarily out of or away from the auto, coverage will still be found if the person intends a continued use of the car.
In reaching its conclusion, the Court made several comments regarding the availability of no-fault benefits in parked vehicle situation which could have some importance in the future. In footnote 3 of the decision, the Court noted that if a vehicle is parked, a claimant must fall within one of the three subsections of §3106. If a claimant falls within one of those three subsections, then the injury per se arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.
The Court also stated that under the Nickerson rationale, it is not necessary that the automobile be the cause of the injury. It is sufficient if the automobile provides the occasion for the injury. Thus, the Court is suggesting mat there need not be a causal nexus between the injury and the motor vehicle.
Judge Gillis dissented specifically disagreeing with the majority's position that it is only necessary that the automobile be the occasion of the injury and no causal connection need be shown. In addition, Judge Gillis argued that the majority failed to properly deal with the relationship between §3106 and §3106. Judge Gillis argued that §3105 is the minimum threshold which must be met. When the fact situation involves a parked vehicle, the provisions of §3106 must also be satisfied.
