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Volume XXV, No. 8, April 30, 2013          

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

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SUPREME COURT HINTS THAT A DUMP TRAILER TAILGATE IS NOT “EQUIPMENT PERMANENTLY MOUNTED ON THE VEHICLE”

 

CONTRIBUTOR – EMILY L. PARTRIDGE

 

In Lefevers v State Farm, ___ Mich ___ (2013) (rel’d 4/12/13), the Michigan Supreme Court vacated the December 13, 2011 judgment of the Court of Appeals and remanded the matter to the trial court to determine whether the tailgate on the plaintiff’s dump trailer is “equipment permanently mounted” on a vehicle for the purposes of MCL 500.3106(1)(b).

In Lefevers, plaintiff was attempting to unload DDT contaminated dirt into a landfill from a dump trailer.  Plaintiff backed the trailer toward the landfill, bringing its rear tires to the lip at the edge of the landfill.  Plaintiff walked to the back of the trailer to release a safety latch on the trailer’s tailgate, and then returned to the front axle of his truck to activate the tailgate release switch.  When the tailgate did not swing open as it should have, plaintiff walked to the back of the trailer and attempted to force it open by pushing on the tailgate in the direction of the landfill.  The tailgate then broke free and opened, causing plaintiff to lose his balance and fall over the edge, into the landfill.  He fell approximately 12 feet onto a concrete base covered by one inch of dirt, injuring his back.

Plaintiff filed a complaint against State Farm, his no-fault insurer, seeking PIP benefits.  Defendant moved for summary disposition, arguing that the parked vehicle exclusion, MCL 500.3106(1), precluded coverage and that no exceptions to the exclusion applied.  The trial court denied State Farm’s dispositive motion.

On December 13, 2011, the Court of Appeals held, among other things, that the dump trailer’s tailgate was, in fact, equipment permanently mounted on the vehicle, and as plaintiff’s injury was the direct result of physical contact with the tailgate while the equipment was being operated and used, the exception contained in MCL 500.3106(1)(b) was applicable and plaintiff was entitled to PIP benefits.

However, on December 21, 2011, the Michigan Supreme Court released Frazier v. Allstate Ins Co, 490 Mich 381 (2011), which held that a passenger door on a motor vehicle was a constituent part of the motor vehicle itself and therefore not “equipment” which was “permanently mounted on” the vehicle.  State Farm filed a motion for reconsideration in its case with the Court of Appeals given the decision in Frazier, supra, and this was denied on January 31, 2012.

The Supreme Court, in lieu of granting leave to appeal, simply vacated the Court of Appeals’ decision and remanded the matter to the trial court to reconsider State Farm’s dispositive motion in light of Frazier.  The Supreme Court has also asked the parties to expand the evidentiary record in order to determine whether the tailgate was a constituent part of the “means in or by which [the contaminated soil] was carried or conveyed,” and, if not, whether the tailgate was nonetheless an “article, implement, etc.,” that was “mounted on the vehicle” and “used or needed for a specific purpose or activity.”

 

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Could insured parents bring separate wrongful death claims under the UIM provisions of an insurance policy after the death of their son?

Hanna v Indiana Farmers Mutual Insurance Company

2012 WL 651 633 (Ind.App. 2012)

Decided February 29, 2012

CONTRIBUTOR – GREGORY BOKOTA

 

A 16 year old passenger in a friend’s vehicle was killed in a two-car collision during a drag race.  Allstate paid its policy limits of $50,000 for one driver.  State Farm paid its limits of $250,000 for the other driver.  The decedent’s parents then sought to recover additional funds in their individual capacities under their own underinsured motorist provisions of their own automobile policy issued by Indiana Farmers.  Neither parent was present when their son was killed.  At the time of the accident, the Hannas were insured with Indiana Farmers and had a UIM endorsement with a per person limit of $250,000, and a per accident limit of $500,000.

The critical provision of the policy stated as follows:

The limit of liability shown in the Schedule or in the Declarations for each person [$250,000 for Monte Hanna and $250,000 for Kim Hanna] for UIM coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person [Casey Hanna] in any one accident.  Subject to this limit for each person [$250,000 per person], the limit of liability shown in the Schedule or the Declarations for each accident [$500,000] for UIM coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident.

An additional provision provided that the limit of liability shall be reduced by all sums paid “because of the bodily injury by or on behalf of persons/organizations who may be legally responsible.”  Further, “no one will be entitled to receive duplicate payments for the same elements of loss under this coverage.”

The Hannas filed a declaratory judgment action against Indiana Farmers claiming that they were insured under the policy and that their damages far exceeded the amount of the available proceeds under the terms of the UIM coverage.  The Hannas claimed they were entitled to the remaining proceeds of the coverage, i.e. $250,000, offset by the $150,000 [$300,000 divided by 2 Plaintiffs] that was received from the other driver’s insurance, which amounted to an additional $100,000 each, from the Indiana Farmers’ policy of $250,000 per person.  The Hannas asserted that because neither of them had received the “per person” limit of UIM coverage in the amount of $250,000, both vehicles involved in the drag race were underinsured.

Indiana Farmers filed a Motion for Summary Judgment, arguing that the Hannas did not qualify as underinsured motorists under their policy.  Indiana Farmers argued that it was not obligated to pay because the Hannas had already been compensated by the other drivers in an amount that exceeded the UIM policy limits.  Indiana Farmers argued further that the Hannas were required to bring a joint claim on behalf of their deceased son under the Indiana Child Wrongful Death Statute (“ICWDS”) and are jointly entitled to the same damages for the death of their son.  Additionally, neither of the Hannas had sustained a physical impact under which they might otherwise be entitled to make a claim separate and distinct from the wrongful death of their minor son.  The trial court eventually granted summary judgment for Farmers.

The Child Wrongful Death Act (“CWDA”) provides that an action for the wrongful death of a child may be maintained by the father and mother jointly and the damages awarded under that statute shall inure to the benefit “of the father and mother jointly if both parents had custody of the child.”  The CWDA also provides specific statutory damages available including 1) the loss of a child’s services; 2) the loss of the child’s love and companionship; 3) to pay the expenses of healthcare and hospitalization; 4) child’s funeral and burial; 5) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling; 6) the uninsured debts of a child and 7) the administration of the child’s Estate.

The Court of Appeals, therefore, concluded that the parents of a minor child can obtain a single joint claim for the death of their minor child and that nothing in the statute permits each parent to maintain a separate wrongful death claim in his or her own right.  Further, even assuming that the Hannas could recover under the policy for their son’s wrongful death, they cannot recover under the UIM portion because they were not “underinsureds” within the meaning of the policy.  The Court noted the Hannas received a total of $300,000 from the other drivers [$50,000 from Allstate and $250,000 from State Farm], which is $50,000 in excess of the UIM provision of their Indiana Farmers policy of $250,000.  The language of the policy provided that an injury to one person only permitted recovery under the per person limit.  If two persons had been killed in an accident, a claim for per accident limits could be made because each person would be entitled to recover under the per person limits.  Therefore, in light of the CWDA provisions and the Indiana Farmers policy, the Hannas were not permitted to recover for their son’s wrongful death under the policy in their individual capacities.  Further, the Court noted that in Bush v State Farm Mutual Automobile Insurance Company, 905 N.E.2d 1003 (Ind. 2009), the Indiana Supreme Court clearly held that there is no common law tort liability for wrongful death.  Therefore, the terms of the CWDA governed.

N.E.2d 1003 (Ind. 2009), the Indiana Supreme Court clearly held that there is no common law tort liability for wrongful death.  Therefore, the terms of the CWDA governed.

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Garan Lucow Miller, P.C., is offering a traveling Deposition Boot Camp

This complimentary Deposition Boot Camp would be presented to a group of 10 or more in your office, half day session.  Please contact Eileen Carty at ecarty@garanlucow.com or (248)641-7600.

For our clients in Indiana or Ohio, please contact Eileen Carty at ecarty@garanlucow.com  or (248)641-7600 to schedule a complimentary in house presentation in early summer.

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GARAN LUCOW MILLER

INDY CITY SEMINAR – INDIANA & MICHIGAN LAW

Garan Lucow Miller, P.C. is pleased to present our eighth annual seminar covering Indiana and Michigan Law on May 23, 2013 at the JW Marriott Indianapolis, 10 S. West Street, Indianapolis, Indiana 46204 (317) 860-5800.  The day will begin with a continental breakfast and registration at 8:30 a.m. followed by the program.  Comprehensive written materials will be distributed to all seminar attendees.

If you are able to attend this complimentary event, please register via e-mail to Eileen Carty at:  ecarty@garanlucow.com  or phone Ms. Carty at (800) 875-7600 for reservations.  We hope to see you there!

8:30 – 8:55 Continental Breakfast & Registration

8:55 – 9:00 Welcome and Introduction

Speaker:  David A. Couch

9:00 – 9:30 Michigan Third Party Updates

Speaker: David A. Couch

9:30 – 10:00 Indiana Third Party Updates

Speaker: Gregory M. Bokota

10:00 – 10:30 Premises Liability Update-Nature of the Defect and Notice

Speaker: Nathan A. Dodson

10:30 – 10:45 Break

10:45 – 11:15 Michigan First Party No-Fault (PIP) Updates

Speaker:  David A. Couch

11: 15 – 11:45 Indiana First Party Updates

Speaker: Gregory M. Bokota

11:45 – 12:15 Premises Liability-Open and Obvious

Speaker: Nathan A. Dodson

12:15 – 12:30 Question and Answer Session