Royston v. State Farm Mutual Automobile Insurance

Per Curiam. Plaintiff appeals as of right from an order entered in the Ingham County Circuit Court granting defendant summary judgment pursuant to GCR 1963, 117.2(3) and holding that plaintiff was not entitled to no-fault benefits for the injuries he sustained. Plaintiff now appeals as of right. On November 25, 1979, plaintiff and his brother-in-law drove a semi-trailer truck to Wexford County to be used to haul Christmas trees. Piles of trees were loaded onto the truck through the use of a bale elevator, commonly used in farming operations for elevating hay. Approximately 2,000 trees constituted a full truckload. The elevator was not permanently affixed to the truck but, rather, was manually moved from pile to pile._ *604 The accident occurred after plaintiff had alighted from the truck to help move the elevator to another pile of trees. The truck’s motor was running at this time, although the truck was not moving. Plaintiff walked to the rear of the truck and touched the elevator when the elevator frame collapsed and fell on plaintiff, causing him to suffer serious injuries to his ankle, chest, neck, and back. Plaintiff asserts that, although the truck was parked at the time he was injured, he is entitled to no-fault benefits pursuant to MCL 500.3106(1), subds (b) and (c); MSA 24.13106(1), subds (b) and (c). 1 The relevant provisions state: "(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur: "(b) Except as provided in subsection (2), the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process. "(c) Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.” In Miller v Auto-Owners Ins Co, 411 Mich 633, *605 641; 309 NW2d 544 (1981), the Supreme Court noted the inappropriateness of compensating non-vehicular injuries within the no-fault system which is designed to compensate injuries involving motor vehicles as motor vehicles. The Court in Miller further explained the purposes underlying the two exceptions relied upon by plaintiff to the general rule of noncompensability where the injuries arise out of involvement with a parked vehicle: "Section 3106(b) recognizes that some parked vehicles may still be operated as motor vehicles, creating a risk of injury from such use as a vehicle. Thus a parked delivery truck may cause injury in the course of raising or lowering its lift or the door of a parked car, when opened into traffic, may cause an accident. Accidents of this type involve the vehicle as a motor vehicle. "Section 3106(c) provides an exception for injuries sustained while occupying, entering or alighting from a vehicle, and represents a judgment that the nexus between the activity resulting in injury and the use of the vehicle as a motor vehicle is sufficiently close to justify including the cost of coverage in the no-fault system of compensating motor vehicle accidents.” Miller, p 640. We now turn to the merits of this case, mindful of the principles set forth in Miller. We first address plaintiff’s argument that he is entitled to compensation pursuant to MCL 500.3106(1)(b); MSA 24.13106(1)(b). 2 The undisputed facts in this case reveal that plaintiff’s injuries *606 were actually caused when the bale elevator collapsed and that this elevator was not "permanently mounted” to plaintiffs truck. Indeed, the bale elevator was never really mounted to the truck. Instead it was independently moved on its wheels to the rear of the truck where the top of the elevator was placed to touch the top of the truck. Plaintiff, citing Arnold v Auto-Owners Ins Co, 84 Mich App 75; 269 NW2d 311 (1978), lv den 405 Mich 804 (1979), asserts that his injuries are compensable even though the bale elevator was not permanently mounted to his truck because the injury was caused by "property being lifted onto or lowered from the vehicle in the loading or unloading process”. In Arnold, this Court concluded that the precursor to MCL 500.3106(l)(b); MSA 24.13106(l)(b) actually embodies two distinct exceptions to the parking exclusion, namely: (1) when the injury is the direct result of physical contact with equipment permanently mounted on the vehicle while this equipment is being used and (2) when the injury results from property which is lifted onto or lowered from the vehicle during the loading or unloading process. In this case, plaintiffs injuries were not caused by contact with the property being loaded — the trees. The bale elevator was never "loaded” on the truck so that the act of wheeling the elevator away from the vehicle cannot be said to be encompassed within the "loading process”. See Dembinski v Aetna Casualty & Surety Co, 76 Mich App 181, 183; 256 NW2d 69 (1977). Instead, plaintiff was injured when the bale elevator, a piece of equipment which was never loaded onto the truck, collapsed at an unfortunate moment, outside of the normal loading process. The accident did not *607 involve the truck as a motor vehicle. The bale elevator, an independent piece of equipment, and not the truck was the focal point of the injury. The bale elevator’s collapse could just as easily have occurred next to a barn. Given these facts, we cannot say that the injuries here "related to the character of a parked vehicle as a motor vehicle”. Miller, supra, p 640. Although somewhat different on its facts, the rationale employed by the Court in Dowdy v Motorland Ins Co, 97 Mich App 242; 293 NW2d 782 (1980), is applicable here and supports our conclusion that plaintiff cannot prevail based upon MCL 500.3106(1)(b); MSA 24. 13106(1)(b). We now turn our attention to plaintiff’s contention that he is entitled to no-fault benefits pursuant to MCL 500.3106(l)(c); MSA 24.13106(l)(c). The undisputed facts show that plaintiff had left the cab of the truck and had walked to the rear of the vehicle when the elevator collapsed. At the point of the mishap, the process of alighting from the vehicle had been completed. At most, the facts show a fortuitous or incidental causal connection to the parked truck which is insufficient to support an award of no-fault benefits. See, inter alia, King v Aetna Casualty & Surety Co, 118 Mich App 648; 325 NW2d 528 (1982) (No recovery where plaintiff slipped on ice and injured himself while reaching to unlock car door after returning from grocery shopping), Block v Citizens Ins Co of America, 111 Mich App 106; 314 NW2d 536 (1981) (No recovery where plaintiff, after delivering goods and returning to the van she was operating, was injured when she slipped on the ice and came to rest under the vehicle), A & G Associates, Inc v Michigan Mutual Ins Co, 110 Mich App 293; 312 NW2d 235 (1981) (Defendant no-fault insurer had no duty *608 to defend action brought against plaintiff taxi company by a passenger assaulted by one of plaintiffs drivers immediately after exiting from the cab because none of the passenger’s theories of liability even arguably came within the ambit of plaintiffs no-fault policy). In arguing for coverage under MCL 500.3106(l)(c); MSA 24.13106(l)(c), plaintiff advocates application of the extended occupancy rule of Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975). However, Nickerson does not apply to this case because plaintiffs truck did not cause his injuries but, rather, the injuries were caused by a new instrumentality, the bale elevator. See, Kalin v Detroit Automobile Inter-Ins Exchange, 112 Mich App 497; 316 NW2d 467 (1982), in which no-fault benefits were denied to a plaintiff who advocated application of the extended occupancy rule where an instrumentality other than plaintiff’s vehicle caused the injuries and distinguishing Nickerson on several other grounds, equally applicable here. Plaintiffs injuries simply do not come within a system intended to compensate injuries flowing from accidents involving motor vehicles as motor vehicles. Affirmed. Defendant may tax costs. M. J. Kelly, P.J., concurs in the result only. Footnotes [1] At the time plaintiffs injuries occurred, MCL 500.3106; MSA 24.13106 did not contain a section 2 and section 1 employed slightly different language. While plaintiffs cause of action is actually governed by the language of MCL 500.3106; MSA 24.13106, prior to its amendment by 1981 PA 209, our citations are to the post-amendment version of MCL 500.3106; MSA 24.13106. None of the changes made by 1981 PA 209 affect the substantive analysis of this case. [2] In fact, plaintiff relied only on the occupying or alighting from exception of MCL 500.3106(l)(c); MSA 24.13106(l)(c) in the trial court. However, since defendant does not assert that this fact precludes appellate review and because the record presents an adequate basis upon which to address plaintiff’s claim based on MCL 500.3106(l)(b); MSA 24.13106(l)(b), we exercise our discretionary powers to address this issue on its merits. Compare, Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-104; 330 NW2d 638 (1982).