Michigan Court of Appeals; Docket No. 114523; Unpublished
Judges MacKenzie, Sawyer, and Doctoroff; Unanimous
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Relying upon the Supreme Court's decision in Royal Globe Insurance Company v Frankenmuth Mutual (Item No. 777) with regard to the meaning of the term "occupant," this panel unanimously held that plaintiff tow-truck driver was not an "occupant" of his employer's tow truck at the time he was struck by a car, where he was standing five to six feet from the tow truck and had been outside of the truck for approximately 25 minutes prior to being hit. Under these circumstances, the tow-truck driver was not an occupant of his employer's vehicle under the priority provisions of §3114(3). The court stated that the Royal Globe decision makes it clear that the term occupant must be construed according to its primary and generally understood meaning. The court then proceeded to cite several appellate decisions that have narrowly construed this term. Furthermore, the court noted that the case of Davis v Auto Owners (Item No. 524), was factually distinguishable in that the plaintiff in that case was standing on a tow-truck B-ring and manipulating levers on the truck at the time he was injured. This class of individuals (those upon, within, entering into and alighting from a vehicle) were left undecided by Royal Globe. Nevertheless, plaintiff in this case did not fall within that class and therefore cannot under any circumstances, be construed an occupant.