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Davis and Attorney General v Auto-Owners Insurance Company, et al; (COA-PUB, 5/20/1982; RB #524)


Michigan Court of Appeals; Docket No. 56434 and 58249; Published  
Judges Cavanagh, Allen, and Penzien; (with J. Allen concurring in part, dissenting in part)  
Official Michigan Reporter Citation: 116 Mich App 402; Link to Opinion alt   

Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]  
Exclusion for Vehicles Considered Parked [§3106(1)]  
Standards for Deductibility of State And Federal Governmental Benefits [§3109(1)]  
State Workers Compensation Benefits [§3109(1)]  
General Rule of Priority [§3114(1)]  
Exception for Occupants [§3114(4)]

Not Applicable   

In this Opinion by Judge Penzien, the Court of Appeals rendered the following holdings:

1.    Even though an injury involves a parked motor vehicle, a claimant is not required to demonstrate that he falls within one of the three exceptions to the parked vehicle exclusions of §3106 where the injury, at least in part, arises out of the operation of a moving motor vehicle. Therefore, the tow truck operator who sustained serious personal injuries when struck by a vehicle that went out of control while the operator was operating the truck winch, was not required to come within one of the parked vehicle exceptions. This is consistent with the recent holdings in Gutierrez v Dairyland (item number 454) and Kalin v DAIIE (hem number 494).

2.    For purposes of determining priority of benefits, the tow truck operator in this case was properly considered to be an "occupant" of the tow truck at the time he incurred injuries. In reaching this conclusion, the Court stated, "We base this conclusion on, among other things, the fact that immediately prior to the accident plaintiff was operating the levers on the back of the tow truck, winching the disabled vehicle onto the truck, and upon the fact that he had direct physical contact with the truck (i.e., he had placed his right foot in the B-ring welded to the side of the truck) at the time of the accident." In reaching this conclusion, the Court indicated that it questioned whether or not the "broad definition of the term occupant" adopted in the pre-no-fault case of Nickerson v Citizens, should be utilized to define "occupant" for purposes of priority disputes under the No-Fault Act. The Court did not specifically reach the question of the continuing validity of Nickerson because it found on the facts, plaintiff was an occupant.

3.    In a significant holding regarding the setoff of government benefits under §3109(1), the Court held that where a person is injured in the course of employment but is not eligible to recover workers' compensation benefits because the employer did not carry workers' comp coverage, the no-fault carrier was not permitted to claim a setoff of the workers' comp benefits from no-fault benefits. In so holding, the Court specifically rejected the prior holding of another panel of the Court of Appeals in Perez v State Farm (item number 395). In rejecting Perez, the majority held, "We find that Judge Burns' dissenting opinion in Perez reaches a correct result in finding a setoff of workers' compensation benefits to be inappropriate where the employer does not maintain workers' compensation insurance and the employee will not, in actuality, ever receive workers' compensation benefits." Judge Allen dissented from this portion of the majority opinion and would follow Perez until §3109(1) was amended by the legislature.

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