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Fayling v National Indemnity Company and Citizens Insurance Company of America; (COA-UNP, 3/2/1994; RB #1701)


Michigan Court of Appeals; Docket No. 148131; Unpublished  
Judges Weaver, Shepherd, and D. A. Johnston III; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   

Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]  
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]  
Exclusion for Vehicles Considered Parked [§3106(1)]  
Exception for Occupying [§3106(1)(c)]  
Causal Connection Requirement [§3106]

Not Applicable   

In this unanimous per curiam unpublished Opinion, the Court of Appeals upheld denial of no-fault benefits to the injured plaintiff on the grounds that although plaintiff was occupying a parked vehicle at the time of her injury, the parked vehicle was not in use as a motor vehicle at the time. 

Plaintiff was showing a fellow co-worker how to operate a wheelchair locking device inside a van owned by defendants' insured. When the co-worker jumped off the rear of the van, plaintiff was thrown off balance and struck her head on a part of the van. Plaintiff sustained a severe and disabling head injury for which she received workers' compensation benefits. 

Plaintiffs claim for no-fault benefits was denied by both the insurer of the vehicle involved and plaintiff’s own personal no-fault insurance carrier. The trial court granted summary disposition in favor of both defendants, and on appeal, the Court of Appeals affirmed.  

The Court of Appeals noted that when an injury is sustained while the vehicle is parked, recovery under the no-fault act is generally precluded. However, §3106 of the act provides several statutory exceptions to this "parked vehicle exception." Before addressing the issue of whether any exceptions applied, however, the court held that the key question before it was whether the van plaintiff occupied at the time she was injured was "being used as a motor vehicle" within the meaning of §3106(1). The court held that the evaluation of whether a claimant's injuries arises out of the use of a motor vehicle must be made on a case-by-case basis, and that the use of the motor vehicle must be more than incidental, fortuitous, or but for. Marzoni v Auto Club Insurance Association, 441 Mich 522 (1992).  

In this case, the Court of Appeals held that plaintiff hit her head when she was moving around in the van in order to leave it It was mere fortuity that the injury occurred inside the van. The parked van was not in use as a motor vehicle. Therefore, the trial court's grant of summary disposition was affirmed.

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