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Clute v General Accident Assurance Company of Canada; (COA-PUB, 2/27/1985; RB #823)


Michigan Court of Appeals; Docket No. 74159; Published  
Judges Hood, R. B. Burns, and Everett; Per Curiam    
Official Michigan Reporter Citation: 142 Mich App 640; Link to Opinion alt    

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

Not Applicable     

This 2-1 per curiam Opinion is a priority dispute involving which of two no-fault carriers is liable to pay Plaintiff’s PIP benefits. Plaintiff was severely injured when she was sleeping in a van that was parked in the yard of a private home. Another automobile jumped the curb and collided with the van. The Defendant in this case is the insurer of the van. In the majority opinion, the court held that the insurer of the van had no liability for the payment of no-fault benefits under §3105(1) for the reason that the van was not being used as a motor vehicle at the time of the accident The court stated, "here the van was parked off the street and was being used for sleeping accommodations, apparently because the house by which it was parked could not accommodate all of the guests." Therefore, Plaintiff’s benefits should be paid by the insurer of the vehicle which struck the van.

In a well-written dissent, Judge Hood disagreed. He stated that there is no question that the Plaintiff was injured when another motor vehicle, used as such, struck the van she occupied. Therefore, “the determination of the nature of the van Plaintiff occupied was irrelevant for deciding whether she was entitled to PIP benefits pursuant to §3105." Judge Hood also pointed out that under the parked vehicle provisions of §3106(c), plaintiff would be entitled to benefits as "the injury was sustained by a person while occupying . . . . the vehicle." Therefore, Defendant should pay Plaintiff no- fault benefits pursuant to §3114(4) as Plaintiff was injured while occupying the vehicle insured by Defendant.

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