Liberty Mutual Insurance v. Insurance Co. of North America

117 Mich. App. 197 (1982) 323 N.W.2d 650 LIBERTY MUTUAL INSURANCE COMPANY v. INSURANCE COMPANY OF NORTH AMERICA Docket No. 56629. Michigan Court of Appeals. Decided June 10, 1982. Smith, Haughey, Rice & Roegge (by Lance R. Mather), for plaintiff. Cholette, Perkins & Buchanan (by Robert J. Riley), for defendant. Before: ALLEN, P.J., and R.B. BURNS and J.H. GILLIS, JJ. PER CURIAM. Plaintiffs Liberty Mutual Insurance Company and Capital City International Truck, Inc., appeal as of right from a Kent County Circuit Court order dated February 27, 1981, granting defendants' motion for summary judgment, GCR 1963, 117.2(1). *199 On April 6, 1979, a fire occurred at Capital City International Truck in Lansing when gasoline splashed onto the trouble light of a mechanic who was working underneath a truck. The truck was owned by Harco Leasing Company and had been leased to the Agri-Chemical Division of the United States Steel Corporation. Insurance Company of North America (INA) was the no-fault insurance carrier for the truck at the time of the fire. The fire damaged property owned by Capital City as well as motor vehicles that had been left on the premises for repair. Liberty Mutual, Capital City's insurer, paid $46,650 for damage to the building and premises of Capital City, $151,241 for damage to the property of Capital City's customers and $300 for damage to vending machines on Capital City's premises. Capital City also suffered losses that were not covered by insurance. On March 27, 1980, Liberty Mutual and Capital City sued INA. Liberty Mutual sought recovery for the amounts it had paid to Capital City and for any amounts it might pay in the future to Capital City due to the fire. Capital City sought recovery for its losses that were not covered under its insurance policy with Liberty Mutual. On or about August 4, 1980, Liberty Mutual and Capital City filed an amended complaint, adding Harco Leasing Company, United States Steel Corporation, and United States Steel Agri-Chemical Division as defendants. The amended complaint alleged that one or more of these defendants was the owner or lessee of the truck and that one or more of them was a self-insurer under the no-fault automobile insurance act. The amended complaint further alleged that these three defendants had fraudulently concealed the facts concerning their ownership interests in the truck. *200 On January 8, 1981, defendant INA, in response to a request for admissions, admitted that it was the no-fault insurance carrier for the truck at the time of the fire. Plaintiffs then voluntarily dismissed Harco Leasing Company, the owner of the truck, from the lawsuit. On January 8, 1981, defendants INA, United States Steel Corporation and United States Steel Agri-Chemical Division moved for summary judgment, GCR 1963, 117.2(1). Relying on Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981), defendants contended that the garage keepers' liability act, MCL 256.541 et seq.; MSA 9.1721 et seq., was controlling rather than the no-fault automobile insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The trial court granted the motion. A split of authority exists in this Court on the question of whether the garage keepers' liability act or the no-fault insurance act controls when a fire occurs in the course of a garage keeper's work on a vehicle insured under the no-fault insurance act on which maintenance is being performed. Compare Liberty Mutual Ins Co v Allied Truck Equipment Co, supra (holding that the garage keepers' liability act controls), with Buckeye Union Ins Co v Johnson, 108 Mich App 46; 310 NW2d 268 (1981) (holding that the no-fault automobile insurance act controls). We find the Buckeye Union case to be the more persuasive case. When the Legislature enacted a no-fault automobile insurance system, the presumption of fault established by the garage keepers' liability act became meaningless in circumstances where the damage was covered by the no-fault automobile insurance act. The no-fault act *201 provides coverage for "accidental damage to tangible property arising out of the * * * maintenance * * * of a motor vehicle as a motor vehicle." MCL 500.3121(1); MSA 24.13121(1). Because the plaintiffs pleaded a fact situation that established a causal connection between the damage and the maintenance, the no-fault automobile insurance act controlled. Summary judgment was improperly granted to defendants. Reversed and remanded. R.B. BURNS, J. (dissenting). I respectfully dissent for the reasons set forth in Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981).