Author(s): Emily Lee Partridge, Caryn Gordon


In Berkeypile v Westfield Insurance Company, 280 Mich App 172; 760 NW2d 624 (2008), the Michigan Court of Appeals determined that the uninsured motorist (UM) policy at issue provided coverage to the plaintiff for UM benefits for damages caused by hit-and-run motorists who were not part of the plaintiff’s settlement with other motorists involved in the multi motor vehicle accident. The Michigan Supreme Court, however, recently peremptorily reversed the Court of Appeals decision and concluded that the plain terms of the policy barred the plaintiff from seeking UM benefits from her insurer, Westfield Insurance Company. Berkeypile v Westfield Ins Co, No 137353, Order of the Michigan Supreme Court (March 12, 2010).

The majority, consisting of Justices Cavanagh, Corrigan, Young, and Markman, concluded that the Court of Appeals erred by not considering a provision contained in the uninsured motorist policy. The provision at issue provided that “[i]f there is other applicable insurance available under one or more policies or provisions of coverage . . . [t]he maximum recovery under all coverage forms or policies combined may equal but not exceed the highest applicable limit for any one vehicle under any coverage form or policy providing coverage on either a primary or excess basis.”

The Supreme Court recognized that this provision limited the plaintiff’s maximum recovery to the highest policy limit of any single policy available to the plaintiff.

In Berkeypile, the highest policy limit of any single policy available to the plaintiff was $300,000. Since the plaintiff had already recovered a total of $332,500 in settlements with the insured drivers, an amount higher than the highest policy limit of any single policy available, the Court concluded that the plaintiff was not entitled to additional recovery under the Westfield UM policy.

Justices Hathaway and Kelly would have denied leave to appeal and Justice Weaver would have granted leave to appeal.



In this consolidated action, Larry Dodson was a tow truck driver who was severely injured when an uninsured van hoisted by the truck’s towing mechanism fell on him while he was underneath it. Mr. Dodson, along with two of his medical providers, Henry Ford Health System and CJ Mazure, DO, filed suit for PIP benefits against Progressive, the insurer of the tow truck, and State Farm, the carrier appointed by the Michigan Assigned Claims Facility before the identification of the tow truck’s insurer.

Mr. Dodson used the tow truck’s towing mechanism to hoist the front end of the disabled van up. He attempted to move the van a few feet, but the rear-wheel drive van would not roll because its transmission was in park. As Mr. Dodson did not have a key to access the van to shift the transmission into neutral from the interior, he lifted the front end of the van as high as possible with the tow truck’s derrick and pulley mechanism. Mr. Dodson then crawled underneath the van with a hammer and screwdriver to manually move the van’s transmission from park to neutral. When he successfully did so, the released tension from the prior movement of the van caused it to lurch, escape from the towing restraints, and fall on Dodson, causing severe injuries.

First, the Court of Appeals examined MCL 500.3105(1), which states, “Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” The Court held that Mr. Dodson’s injuries arose out of the “use” of the tow truck as a motor vehicle or out of the “maintenance” of the van.

Second, the Court of Appeals examined the exclusion contained in MCL 500.3106(1), which states, “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.” The Court held that the tow truck was parked because its transmission was in park and its wheels were motionless.

Third, the Court of Appeals examined the exception to the exclusion in MCL 500.3106(1)(b), which states, “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.” [Emphasis added.]

The Court held that this exception applied because the act of attaching the disabled van to the tow truck and the act of shifting the van into neutral so that it may be towed are within the ordinary common meaning of the word “loading” and/or the “loading process.” The Court stated:

Attaching a van to a tow truck to move the van to another location is within the transportational functions of the tow truck and within the ordinary common meaning of the word “loading.” “Loading” is defined as “the act of a person or thing that loads.” A “load” is “anything put in or on something for conveyance or transportation.” See Random House Webster’s College Dictionary (1992). Moreover, the statute refers to more than a single discrete act; it also applies to “the loading or unloading process. ” MCL 500.3106(1)(b). Thus, placing the van in or on the tow truck’s boom and sling harness would be part of the process of “loading” or making a load ready for transportation. The “process” would also include making the tow truck and van ready to be moved from one place to another, i.e., shifting the van into neutral so that it might effectively roll to the new location.

In other words, Mr. Dodson going under the disabled van with a hammer and screwdriver to manually shift the transmission was a part of the process of loading the disabled van onto the tow truck so that it could be moved.

Finally, as Mr. Dodson was deemed entitled to PIP benefits, the Court of Appeals determined who was highest in the order of priority, Progressive or State Farm. The Court of Appeals held that as Mr. Dodson was not an occupant of a motor vehicle and the tow truck was “involved in the accident,” Progressive was the liable insurer under MCL 500.3115. Also, as Progressive was identified and determined to be the insurer responsible for paying no-fault benefits, State Farm, as the assigned claims carrier, could not be held liable pursuant to MCL 500.3172.