Author(s): L. Ladd Culbertson

SLIP AND FALL WHILE SCRAPING WINDSHIELD DOES NOT ENTITLE CLAIMANT TO NO FAULT BENEFITS

Reversing the decision of the trial court, the Michigan Supreme Court has held that there was an insufficient causal connection between the plaintiff’s injuries and scraping ice from her windshield to entitle her to an award of personal protection insurance benefits. In Willer v Titan Ins Co, NW2d (2008), decided April 25, 2008, the Supreme Court examined a case in which Fern Willer was injured when she slipped and fell on a patch of ice beside her car, while scraping snow and ice off her windshield.

After Willer filed suit seeking no fault benefits for the injuries she suffered in that fall, the trial court denied Titan’s motion for summary disposition. Titan’s motion had argued that Willer had not been “maintaining” her vehicle under MCLA 500.3105(1) at the time of her injury, and that there was an insufficient causal connection between her injury and scraping the windshield. After an application for leave to file an interlocutory appeal was denied by the Court of Appeals, the Supreme Court allowed oral argument regarding whether it should itself grant leave to appeal. After oral argument, the Court elected to reverse the judgment of the trial court, rather than grant leave to appeal.

The Supreme Court held that the plaintiff had failed to demonstrate that there was a causal connection between her injuries and scraping the windshield which was more than incidental, fortuitous, or “but for”. As a result, the

1 Mr. Culbertson is a shareholder in the Firm’s Grand Rapids office and can be reached at (616) 742-5500 or at lculbertson@garanlucow.com.

Court found that there was no genuine issue of material fact in dispute supporting claims that her injuries arose out of the “ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” within the meaning of MCLA 500.3105(1).

However, an interesting analysis in Justice Markman’s concurring (and non-precedential) opinion called into question a 1981 decision in Miller v Auto Owners Ins, 411 Mich 633 (1981), and argued in favor of completely overruling that case. In the Miller decision, the Court had examined an alleged conflict between §3105(1) and MCLA 3106(1). Under §3105(1), an injury must “arise out of” the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, before it is compensable. For an injury to “arise out of” the ownership, operation, maintenance or use of a motor vehicle, the relationship must be one which is more than “but for”, incidental or fortuitous. Thornton v Allstate Ins Co, 425 Mich 643 (1986).

However, the parked motor vehicle exclusion of §3106(1) provides that accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless one of the following conditions exist:

a. The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred;

b. The injury was a direct result of physical contact with 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; or

c. The injury was sustained by a person while occupying, entering into, or alighting from the vehicle.

The Miller court felt that “since most if not all, maintenance is done while the vehicle is parked, and since the three exceptions [of §3106(1)] appear addressed to circumstances unrelated to normal maintenance situations, a conflict [with §3105(1)] appears”. In a dissenting opinion from the Willer case, Justice Weaver highlighted this conflict by arguing that it would defy common sense to expect that maintenance would be performed a vehicle while it was being driven down the road. Ultimately the Miller court held that where an injury “arose out of” the maintenance of a parked motor vehicle, to the satisfaction of §3105(1), it was not necessary to also meet the requirements of §3106(1).

Justice Markman took issue with the conclusions of the Miller court, and would have ultimately elected to overrule that case. He would have instead found that while Willer’s injury did “arise out of” her maintenance of her vehicle, that the parked motor vehicle exception of §3106(1) operated to preclude her recovery.

While the Supreme Court majority was clear that the injuries Willer sustained while scraping her windshield did not “arise out of” the maintenance of her motor vehicle, the debate about whether a claimant in a parked motor vehicle case must meet the requirements of both §3105(1) and §3106(1), will continue.

ALL VEHICLES REGISTERED TO MICHIGAN RESIDENTS AND OPERATED ON MICHIGAN HIGHWAYS MUST HAVE MICHIGAN NO FAULT COVERAGE, NO MATTER WHERE THE VEHICLES ARE USUALLY KEPT:

UNINSURED OWNER / DRIVER PENALTY OF § 3105(2)(c) BARS THIRD PARTY CLAIM BY MICHIGAN REGISTRANT EVEN THOUGH VEHICLE IS INSURED UNDER

THE LAW OF THE STATE WHERE IT IS USUALLY KEPT

The Michigan Court of Appeals has decided a case which should be of interest to many vehicle owners and drivers whose lives ping-pong between multiple states (including all college students and “snowbirds”) as well as their no fault insurers.

In the unpublished opinion in Jones v SBC Teleholdings, Inc, (5-9-08. # 278213), the court held that any vehicle registered to a Michigan resident and operated on Michigan highways – no matter how briefly – must have MICHIGAN no fault insurance, even if the vehicle is usually garaged and operated out of state. There is no 30 day grace period for vehicles registered to or owned by Michigan residents.

Furthermore, the uninsured owner / driver penalty of § 3105(2)(c) which bars the recovery of noneconomic losses by those who fail to secure and maintain such coverage applies even where the owner and operator of the vehicle at the time of the accident has maintained insurance coverage on the vehicle under the law of another state, but has improperly failed to maintain MICHIGAN no fault coverage.

Plaintiff Jennifer Jones was driving a vehicle in Michigan which was registered to her when she became involved in a motor vehicle accident. She brought a third-party action in tort for noneconomic damages resulting from her alleged serious impairment of body function. The defendant claimed that she was barred from such recovery under the no-fault act’s uninsured motorist penalty, MCL 500.3135(2)(c), which states:

MCL § 500.3135(2)(c) Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.

Plaintiff admitted that she never purchased Michigan no fault coverage for the vehicle, but stated that it was insured under a auto policy purchased in Georgia, where her father had been keeping the vehicle – and where, presumably, he would be considered the vehicle’s “statutory owner” under MCL § 500.3101(2)(g)(I). Plaintiff claimed that her step-mother brought the vehicle into Michigan only a couple of days before this accident. In essence, plaintiff claimed that where AN owner of the vehicle insured the vehicle in another state, MCL § 500.3101 did not require that the vehicle have Michigan no fault coverage. That statute provides:

MCL § 500.3101 The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall only be required to be in effect during the period the motor vehicle is driven or moved upon a highway.

There is, however, an exception for vehicles owned by “nonresidents” of Michigan:

MCL § 500.3102 A nonresident owner or registrant of a motor vehicle… not registered in this state shall not operate or permit the motor vehicle… to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter. [Emphasis added.]

Plaintiff claimed that since “a nonresident owner” insured the vehicle in another state and since the vehicle had not been operated in Michigan for more than 30 days, she, as its registrant, had no duty under § 3102 to obtain Michigan no fault coverage.

The Court of Appeals disagreed, holding that the 30 day grace period in § 3102 applied only to vehicles where neither the owner nor the registrant was a Michigan resident. The court reasoned that the term “nonresident” in that statute modified both the words “owner” and “registrant.” Plaintiff was clearly the registrant of the vehicle, and (although she disputed residency) the court found that she was also clearly a Michigan resident. She had been living and working in Michigan since 2003, her children went to school here and she had a Michigan driver’s license. As a Michigan resident and registrant of the vehicle, she failed in her obligation to maintain Michigan no fault coverage on the vehicle, and so her claim for third-party benefits was barred under the uninsured owner / driver penalty of § 3135(2)(c).

Lesson for Michigan residents bringing out-of-state vehicles into Michigan: obtain Michigan no fault coverage from day one!

Lesson for no fault claims handlers: Whenever vehicles registered and insured in other states are involved in Michigan accidents, carefully investigate the residency of the driver!