Michigan Court of Appeals; Docket No. 236735; Unpublished
Judges Markey, Smolenski, and Meter; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Exclusion for Vehicles Considered Parked [3106(1)]
Exception for Occupying [3106(1)(c)]
Exception for Entering Into or Alighting From [3106(1)(c)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals revisited its earlier decision (Item No. 2390), pursuant to Order of the Supreme Court remanding this matter back to the Court of Appeals for reconsideration of its opinion in light of Rednour v Hastings Mutual Insurance Company, 468 Mich 241 (2003) (Rednour II).
In the earlier decision, the Court of Appeals held that plaintiff was an “occupant” of a truck when he bent down to pick up a coin he had dropped and was “balancing himself with one hand on the step of the insured truck” when his foot was run over by another vehicle. Although the plaintiff was not considered to be an occupant within the meaning of the no-fault statute, the insurance policy at issue herein contained an endorsement defining “occupying” as “in or upon or entering into or alighting from a motor vehicle,” thus providing coverage broader than that required by the No-Fault Act.
In Rednour II, the Supreme Court held that the plaintiff was not “upon” the insured vehicle in a case in which the plaintiff was not touching the insured vehicle immediately before the accident, but was thrown into the insured vehicle when another vehicle hit him. The Supreme Court rejected plaintiff’s claim that he was occupying the car by reason of the definition of occupancy as including the term “upon.” The Supreme Court held that physical contact alone was not sufficient to show that a person was “upon” the vehicle so as to be “occupying” the vehicle.
In this case, the Court of Appeals held that the Supreme Court decision in Rednour II did not change its holding herein. The court referred to Random House Webster’s College Dictionary (1997), which lists the following as the first definition of “on:” “so as to be or remain supported by or suspended from.” In Rednour II, the Supreme Court had indicated that one must be “on” a vehicle to be “upon it.” The testimony in this case indicated that plaintiff was balancing himself with one hand on the step of the truck when the accident occurred. If the fact finder were to believe plaintiff’s testimony, then (1) plaintiff clearly was being “supported by” the truck, (2) he therefore was “occupying” the vehicle under the terms of the Auto-Owners policy, and (3) the parked vehicle exclusion in the policy does not apply. Therefore, the Court of Appeals upheld its earlier decision that plaintiff satisfied the policy definition of occupying.
