September 21, 2012
In an unpublished opinion, the Michigan Court of Appeals has held that a “Named Driver Exclusion Endorsement” operated to exclude the owner of a motor vehicle from receiving any no-fault personal protection insurance benefits. In Bronson Methodist Hosp. v Progressive & Michigan Assigned Claims Facility, Unpublished Opinion per curium of the Court of Appeals, decided August 30, 2012 (Docket no. 300035, 300066), Danielle Pillars was driving a vehicle she owned, but which had been insured by her fiancé, Nicholas Owsiany, when she was injured in an automobile accident. Bronson Hospital filed suit against Owsiany’s auto insurer and the Assigned Claims Facility to recover medical expenses for treatment Bronson had provided to Danielle Pillars.
The automobile insurance policy issued to Owsiany by Progressive included a “Named Driver Exclusion Endorsement” which specifically excluded personal liability, property damage, and uninsured/underinsured motorist coverage for named drivers. The endorsement also provided: “Additionally, if the owner or registrant of a covered auto is injured in an accident where an auto is being driven by a named excluded driver, no Personal Protection Insurance (PIP) is provided under Part II for that owner or registrant.”
The endorsement added that “If a covered auto is operated by the excluded driver, the auto will be considered uninsured under the no-fault law…” Finally, the declaration sheet for the policy stated, “WARNING – When a named excluded person operates a vehicle, all liability coverage is void – no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally responsible.”
The Court recognized that Pillars had been the owner of the vehicle involved in the accident, and that she was also an excluded driver under the policy, as permitted by MCL 500.3009(2). By applying the plain language of the policy endorsement, the Court concluded that at the time of the accident, all liability coverage was void, and that because the excluded driver had been operating the vehicle, no one was insured under Progressive’s policy at the time of the accident, including Pillars herself. The Progressive policy was simply void at that time.
Furthermore, the Court rejected Bronson Hospital’s alternative argument that the expenses it had incurred providing Pillars with medical treatment should be paid by the Assigned Claims Facility. The Court noted that MCLA 500.3113(b) prohibits a person from entitlement to personal protection insurance benefits for accidental bodily injury if at the time of the accident that person was the owner or registrant of a motor vehicle involved in the accident which was not insured as required by MCLA 500.3101. Pillars had been the owner of the motor vehicle involved in the accident in which she had been injured. The act of Pillars driving that vehicle rendered it completely uninsured through the operation of the Named Driver Exclusion.
Because the vehicle was uninsured at the time of the accident, as the owner of that vehicle, Pillars was excluded from the payment of any No-Fault personal protection insurance benefits by MCLA 500.3113(b). This included any potential benefits which might have otherwise been available through the Assigned Claims Facility.
However, it must be noted that 3113(b) operated to exclude the payment of PIP benefits on Pillars’ behalf because she had been an owner of the uninsured vehicle. While the Named Driver Exclusion prevented her from recovering PIP benefits under Progressive’s policy, had Pillars not been an owner (or registrant) of the vehicle, she may have still been entitled to benefits from some other available insurer, or from the Assigned Claims Facility. It was the fact that she was both an owner of the vehicle and listed as an Excluded Driver under the policy which prevented the payment of any benefits on her behalf in this case.
COURT OF APPEALS RELIES ON DOCTRINE OF “OPEN AND OBVIOUS DANGER” TO DISMISS LAWSUIT AGAINST STORE WHERE PLAINTIFF’S SHOPPING CART HIT A CRACK IN STORE’S PARKING LOT AND CAUSED PLAINTIFF TO FALL
CONTRIBUTOR – DAVID M. SHAFER
The doctrine of open and obvious danger is often used by defendants in premises liability cases as a defense to tort liability. Most frequently, the plaintiff was injured by tripping or slipping and falling on property owned by the defendant. The plaintiff seeks money from the defendant claiming that some “defect” on the defendant’s property caused him to trip or slip, and the defendant responds that the alleged defect was a common, open, and obvious condition that did not present any “special aspects,” or high likelihood of harm. Plaintiffs’ slips or trips very often arise from pavement conditions such as cracks, potholes, uneven surfaces, and snow and ice. If the circuit court agrees with the defendant, the plaintiff’s premises liability claim will be entirely dismissed due to lack of duty owed.
Recently, the Court of Appeals reversed an order of the Genesee Circuit Court denying a defendant-store’s motion to dismiss the plaintiff’s premises liability claims based on the doctrine of open and obvious danger. The Court of Appeals concluded that a large crack in the defendant-store’s parking lot constituted an open and obvious danger with no special aspects, so that the defendant-store’s motion to dismiss the plaintiff’s complaint should have been granted by the circuit court.
The new opinion is Hudspeth v Meijer, Inc, unpublished opinion of the Michigan Court of Appeals, issued September 18, 2012 (Docket No. 305339), and a full copy of it can be obtained at:
In Hudspeth v Meijer, the plaintiff was pushing a shopping cart to the defendant-store’s parking lot when the cart hit a crack and tipped over. The plaintiff fell on top of the cart and was hurt. The defendant-store filed a motion for summary disposition, arguing that the crack was an open and obvious condition with no special aspects, thereby entitling it to the dismissal of the plaintiff’s premises liability claims. The plaintiff argued that the crack was not an open and obvious danger because it was “pitch black” outside and the lighting in the parking lot was poor; because her view of the crack was obstructed by the store’s shopping cart she was using; and because the crack was an unavoidable hazard. The circuit court ruled that the plaintiff had raised genuine issues of material fact that required a jury trial to resolve, but the Court of Appeals disagreed and held that as a matter of law, the defendant’s motion to dismiss the plaintiff’s claims should have been granted.
In a unanimous opinion, Court of Appeals judges Saad, Donofrio, and Cavanagh rejected each of the plaintiff’s arguments on appeal. First, the Court stated that “[t]here was nothing to prevent plaintiff from noticing that it was dark outside and that the parking lot was poorly lit,” adding that, “[w]hen she left the store and observed the dark conditions, plaintiff was on notice of the need to proceed cautiously.” Second, the Court stated that “[i]n a store parking lot, customers frequently walk with shopping carts” and that “[t]he risk of a shopping cart hitting a crack in a store parking lot is also one that an average person would be expected to recognize and discover upon casual inspection.” Third, the Court stated that the “[p]laintiff argues that the crack was unavoidable, but she clearly could have avoided the crack by walking around it.”
It is noted that in rendering its unanimous opinion in Hudspeth v Meijer, the Court of Appeals cited a recently issued (and rather significant) Michigan Supreme Court opinion that deals with the “special aspects” component of the doctrine of open and obvious danger. That new opinion of the Michigan Supreme Court is Hoffner v Blue Cross and Blue Shield of Michigan, 492 Mich __ (7-31-2012). In Hoffner, a majority of the Michigan Supreme Court justices emphasizes that the “special aspects” exception to the doctrine of open and obvious danger is a “limited” and “narrow” exception that applies only to open and obvious dangers that “present an extremely high risk of severe harm to an invitee.” The Supreme Court’s majority opinion acknowledges that “special aspects” can arise in situations where “the danger is unreasonably dangerous or when the danger is effectively unavoidable,” but emphasizes that “neither a common condition nor an avoidable condition is uniquely dangerous.” In Hoffner, four of the seven justices of the Michigan Supreme Court agree that a plaintiff who slipped and fell on a patch of ice outside the only entrance to a business could not recover money damages from the possessor of the property, because the ice patch was open and obvious and was not “effectively unavoidable.” The majority opinion reasons that the ice-patch hazard was not effectively unavoidable because the plaintiff was not forced to confront the hazard, but rather had a choice of whether to confront it. Full copies of the Supreme Court’s majority and two dissenting opinions in Hoffner v Blue Cross and Blue Shield of Michigan can be obtained at:
The plaintiff’s motion for reconsideration is presently pending in the Michigan Supreme Court.
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