Michigan Court of Appeals; Docket #257800; Published
Judges Zahra, Murphy, and Neff; 2-1 (Judge Zahra dissenting)
Official Michigan Reporter Citation: 270 Mich. App. 20, Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Transportational Function Requirement [3105(1)]
Exclusion for Vehicles Considered parked [3106(1)]
Exception for Permanently Mounted Equipment Use [3106(1)(b)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 published opinion by Judge Neff, the Court of Appeals held that a person who was severely injured when his hand became entangled in the auger system of a grain delivery truck was entitled to no-fault benefits because the truck, although parked when the accident occurred, was being used for its intended purpose, which was the delivery of grain. The plaintiff in this case was operating the auger of a grain delivery system when it became clogged. To correct the problem, plaintiff reached through an inspection door on the truck to clean the auger. While he was doing so, the driver of the truck activated the auger without warning, causing injury to the plaintiff. In determining the plaintiff was entitled to no-fault benefits, the court first addressed the defendant’s argument the vehicle was not being used as a motor vehicle when the accident occurred as required by MCL 500.3105(1). The Court of Appeals disagreed, finding the truck satisfied the transportational function test from McKenzie v ACIA [RB #1908]. In so holding, the court stated:
“The vehicle involved is a delivery truck, and it was being used as such when the injury occurred. Accordingly, plaintiff’s injury is closely related to the motor vehicle’s transportational function, and therefore arose out of the operation, ownership, maintenance, or use of a motor vehicle ‘as a motor vehicle’ pursuant to McKenzie. . . .”
Next, the court determined that even though the vehicle was parked, the parked vehicle exclusion, MCL 500.3106, did not apply because, since the injury was the direct result of physical contact with the auger that was permanently affixed to the grain delivery truck, the facts of this case fell directly within the exception contained in MCL 500.3106(1)(b). In this regard, the court explained:
“It is uncontested that the grain delivery truck’s auger system, used for unloading, was ‘permanently mounted’ on the grain delivery truck. It is further uncontested . . . that Passmore activated the vertical auger momentarily while plaintiff’s right hand was reaching through the inspection door on the rear of the delivery vehicle. Finally, neither party disputes the fact that plaintiff’s injuries were caused by physical contact with the grain truck’s augers when they were activated. Because the material facts were not in dispute regarding whether plaintiff’s injuries were a ‘direct result of physical contact with equipment permanently mounted on the [grain delivery] vehicle, while the equipment was being operated or used,’ the trial court properly found that plaintiff’s claim for no-fault benefits fell within the second parked-vehicle exception of §3106(1)(b).”
Finally, the court addressed the McKenzie decision, concluding that its use of §3105 as a threshold requirement “is at odds with the no-fault statutory scheme.” In so concluding, the court analyzed §3106(1)(b) from a textualist approach and the approach used by Justice Levin in Miller v Auto Owners. In this regard, it stated: “Reading the plain language of MCL 500.3106, a cogent argument can be made that if any of the three parked-vehicle exceptions apply in a given case, the injury, by statutory mandate, does arise out of the ownership, operation, maintenance, or use of the parked vehicle as a motor vehicle: therefore, PIP benefits would be recoverable.” The court then conducted a historical analysis of cases interpreting §3106(1), including Winter v Automobile Club of Michigan [RB #1293] and Putkamer v Transamerica Ins Corp of America [RB #1929], and concluded the McKenzie decision was inconsistent with previous Michigan Supreme Court decisions and the No-Fault Act. In so finding, the court declared: “Indeed, the general concept of applying a test that focuses on the transportational function of a vehicle when considering parked vehicles seems illogical and, consequently, is, for all practical purposes, unworkable.”
