Muskegon County Circuit Court; Docket No. 87-22733-CK; Unpublished
Judge James M. Graves, Jr; Written Opinion
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this written Opinion, Judge Graves interpreted the priority provisions applicable to a motorcyclist under §3114(5)(b).
Plaintiff, while operating a motorcycle, struck an uninsured dump truck as it was parked in a public roadway preparing to tow an uninsured boom crane. Defendant Auto-Owners was the insurer of the personal automobile of the person "operating" the dump truck. The motorcyclist had no no-fault insurance on the motorcycle.
Interpreting the priority statute, the court determined that the provisions of §3114(5)(b) were applicable, and that the insurer of the operator of the motor vehicle involved (in this case the dump truck) was obligated to provide no-fault benefits.
Auto-Owners claimed that the "operator" had gotten out of the dump truck, parked it, and was standing between the dump truck and a boom truck moving a rock and disengaging a tow chain when the accident occurred. Auto-Owners claimed that these facts demonstrated that he was not the "operator" within the meaning of the statute. By analogy to the liberal construction of the statute contained in Yates v Hawkeye (Item No. 1008), the court concluded that one did not actually have to be behind the wheel of a vehicle to be in actual physical control of the vehicle. In this case, the court held it sufficient that the operator was within a few feet of the dump truck, had put on the flasher lights of the truck, and was in the act of preparing the vehicle for immediate towing purposes when the accident occurred.