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Winter v Auto Club of Michigan; (COA-UNP, 10/14/1987; RB #1084)


Michigan Court of Appeals; Docket No. 92528, Unpublished   
Judges Gribbs, Holbrook, and Lambros; 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 Permanently Mounted Equipment Use [§3106(1)(b)]   
Causal Connection Requirement [§3106]

Not Applicable   

In this unanimous per curiam Opinion, the Court of Appeals reversed summary disposition in favor of defendant and held that a plaintiff who had his fingers severed when a slab of concrete fell while being lifted by a tow truck was entitled to no-fault benefits under the parked vehicle provisions of §3106 of the statute. The Court rejected the trial court's holding that benefits were not available because the tow truck was not being used "as a motor vehicle" at the time of the accident. In rejecting this notion, the Court relied upon the recent Supreme Court decision in Bialochowski v Cross Concrete Piping Company (Item No. 1021) which held that a concrete truck was a "dual purpose vehicle" that is no less a motor vehicle when engaged in its off-the-road function. The vehicle involved in this case was a tow truck which was specifically designed to lift objects. Here the object that was being lifted was a slab of concrete that fell while it was being hoisted.

Having ruled that the vehicle in question was being used "as a motor vehicle" at the time of the accident, the Court went on to rule that benefits were available under §3106(b) of the parked vehicle provisions. This subsection permits recovery in a parked vehicle situation where the injury was a direct result of physical contact with equipment permanently mounted on the vehicle. Even though the injury in this case occurred when the slab of concrete fell from permanently mounted vehicle equipment, the Court refused to deny benefits based upon that distinction. The Court stated, "We reject as incompatible with the purpose behind the parking exclusion any suggestion that the tow truck boom and/or hook must make physical contact with the plaintiff’s person. The boom, cable and hook were permanently mounted on the vehicle. Plaintiff’s injury was a direct result of physical contact with this equipment. The concrete slab slipped or broke off from the hook while it was being lifted."

[Author's Comment: Actually, the distinction between physical contact with equipment permanently mounted on the vehicle and property being lifted onto or lowered from the vehicle during the loading process was answered by the Court of Appeals in Arnold v Auto Owners (Item No. 86) where the Court specifically rejected the contention that §3106(b) required physical contact with equipment permanently mounted on the vehicle as a condition precedent to recovery of no-fault benefits. For some reason, however, the Arnold decision was not referred to in the Winter opinion.]

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