*1
v Allstаte
Ins Co
FRAZIERv ALLSTATEINSURANCE COMPANY
Argument
application
Docket Nos. 142545 and
142547.
for leave to
27,
appeal
21,
October
2011. Decided December
2011.
brought
Mona Lisa Frazier
an action in the Macomb Circuit Court
insurer,
against her
Company,seeking
no-fault
Allstate Insurance
500.3105(1)
personal protection insurance benefits under MCL
for
injury
slipped
patch
an
she suffered when she
and fell on a
of ice
parked
jury
while
door
her
vehicle. The
plaintiffs
court,
returned a
in
verdict
favor.The
M.
James Biernat
Sr., J.,
plaintiffs
attorney
penalty
denied
motion for
fees and
500.3148(1).
parties appealed.
under
interest
MCL
Both
After
consolidating
appeals,
Appeals,
Court
RJ.
Wilder,
J.,
J.,
concurring,
concurring
and M. J.
in the
(Cavanagh,
Kelly,
only),
judgment
deny-
result
affirmed the
and reversed the order
ing
attorney
unpublished opinion,
fees
an
issued
(Docket
293904).
December
Nos. 292149 and
The Su-
preme
argument
Court ordered and heard oral
on whether to
grant
application
appeal
defendant’s
for leave to
or take other
peremptory action.
and Mark J. plaintiff. for Associates, Magdich (by & PC Karen W. Magdich), for defendant. Opinion. At issue is whether defendant
Memоrandum insurer is liable to plaintiff personal protection insurance act, benefits under the no-fault MCL Mich 381 Opinion of the Court 500.3105(1) param- forth the sets et MCL seq.
500.3101 coverage. pro- It protection insurance personal eters of vides: liable protection an insurer is personal insurance Under arising bodily injury out pay accidental benefits for of a motor operation, or use ownership, maintenance provisions vehicle, subject as a motor vehicle 500.3105(1).] chapter. [MCL 500.3106, act, explains MCL section of the next of a parked attaches in case liability
when such vehicle: of the own- bodily injury does not arise out
Accidental maintenance, parked of a ership, operation, or use any following occur: as a motor vehicle unless (b) physical injury a result of ... direct [T]he permanently еquipment mounted on contact with being operated or vehicle, equipment while the used....
(c) injury person while [T]he ... was sustained occupying, entering into, from 500.3106(1).] [MCL 500.3106(1) delineates when “accidental expressly MCL ownership, operation, bodily injury aris[es] out motor vehicle as a or use of motor maintenance Therefore, in case parked. vehicle” if the vehicle is vehicle, a demonstrate claimant must of a motor requirements meets one of the that his or her 500.3106(1) require one those unless MCL because of the use of met, does not arise out ments is a motor a vehicle as *4 qualifies is
The here whether question (c). 500.3106(1)(b) or in MCL found exceptions 500.3106(1)(b) be- centers on the distinction v Allstate Ins Co op Opinion “equipment” tween and “the vehicle.” “Equipment” is articles, defined “the implements, etc., as or used specific needed for a purpose activity,” or while “ve hicle” is “any defined as means in or which someone or something is carried or conveyed: a motor vehicle” or “a conveyance moving on wheels, runners, like, or the an as automobile.” Random House College Webster’s (1997). Dictionary all functioning Because vehicles must be composed of constituent no parts, single article constitutes “the reality vehicle.” This the poten creates tial for the of “equipment” engulf definition that of “the However, vehicle.” language of MCL 500.3106(1)(b) forecloses this possibility by requiring the “equipment” be vehicle,” “mounted on the which indicates that the constituent parts “the vehicle” itself are not “equipment.”
With respect 500.3106(1)(c), to MCL “alight” means “to horse, dismount from a descend from a etc.” stay “to settle or after come descending; to rеst.” Random House Webster’s College Dictionary See also New Shorter English Dictionary (defining Oxford “alight” settle; as “to descend and come to earth from air”).1 Moreover, that the must be sustained “while” indicates that “alighting” does not occur a single moment but occurs as result aof process. process begins when a person initiates the descent from a vehicle and is completed when an individual has effeсtively “descended] from a vehicle” analogizes “entering” “alight Justice Marilyn Kelly’s dissent ing,” concluding opening part “[i]f a vehicle door is of the process, closing usually it part follows that a door can he and of the alighting process.” However, “alighting” antony Post at 392. is neither “entering” synonymous Therefore, “exiting.” mous to nor with even if opening part entering process, a door is of the and even if it follows that сlosing part exiting process, a door is it does not follow that part alighting process. a door is *5 Mich 381 490
386
op
Opinion
successfully
one has
rest” —when
“come to
and has
from reli-
of one’s movement
control
transferred full
typically
This is
body.2
vehicle to one’s
the
upon
ance
on the
firmly
are planted
“both feet
when
accomplished
Co, 112 Mich
Mut Cas
Lumbermen’s
Krueger v
ground.”
(1982).3
515;
474
511,
316 NW2d
App
analysis,
is not
foregoing
plaintiff
оn the
Based
act because her
under the no-fault
to benefits
entitled
a
vehicle
the use of
arise out of
injury did not
when she
injured
Plaintiff was
closing the
a
of ice while
patch
and fell on
slipped
a
had
few
placed
of her
Plaintiff
door
passenger
via the
compartment
passenger
items in the
personal
way
of the
door,
stepped
and
out
up,
stood
as
door and fell. Insofar
she closеd the
the door when
at the
of the vehicle
with
door
was
contact
she
clearly in contact with
her
she was
injury,
time of
mounted thereon.
not
itself,
“equipment”
with
vehicle
Therefore,
physi
not “a direct result
her
was
on
mounted
equipment permanently
contact
cal
with
500.3106(1)(b). Further, before
.” MCL
the vehicle . ..
analy
foregoing
Contrary
implication, the
to Justice
Marilyn Kelly’s
merely placing
“alighting”
plain
one’s “feet оutside
makes
sis of
completion
ground”
does not constitute
on the
“successfully
Rather,
complete
process, one
process.
must
Post at 391.
upon the
nsfer[]
movement from reliance
full control of one’s
tra
hody.”
vehicle to one’s
correctly
Krueger
points
that the
out
Kelly’s
Justice
dissent
Marilyn
”
“
“alighting.”
complete
at
provide
‘a
definition’ of
Post
panel declined to
Krueger
7,
Krueger,
App
quоting
at 515.
concluded
n
112 Mich
&
390-391
‘alighting’
at
from a vehicle
least
not finished
“an individual has
App
ground,” Krueger,
planted firmly
on the
both feet are
until
position
supports
neither side here
distinction
at
but this
necessary
“alighting,”
only
without
condition of
it
describes
because
Further,
indicates,
analysis
considering
sufficiency.
we define
its
as our
Krueger
adopt
language
“alighting”
without
reference
typically
firmly”
“alighting”
been
simply
has
“planted
to illustrate when
accomplished.
v Allstate
Ins Co
Dissenting Opinion Marilyn Kelly,
her
been
injury, plaintiff had
standing with both feet
vehicle;
planted firmly
outside
she
entirely in
movement,
control of
body’s
she
way
in no
reliant
Therefore,
the vehicle
upon
itself.
not in the
she was
“alighting from” the
500.3106(1)(c).
vehicle. MCL
At the time of her injury,
already
had
alighted.
Because the
plaintiffs
circumstances of
*6
any
not included in
in
exceptions enumerated
500.3106(1),
defendant
pay
is not liable to
benefits
500.3105(1).
under MCL
Finally, because defendant did
not owe
plaintiff,
benefits to
its refusal
pay
them was
unreasonable,
not
and plaintiff
not entitled
to attor-
ney fees under MCL
v
Ins,
Moore Secura
507, 526-527;
Young, C.J., Markman, Kelly, Beth JJ., ZAHRA, concurred.
Marilyn Kelly, J. I (dissenting). dissent from the majority’s decision to reverse the of judgment In Appeals. view, my plaintiff was from “alighting” 500.3106(l)(c) her vehicle within the meaning of MCL Thus, when she was injured. the trial correctly court denied defendant’s for motion a directed verdict on this issue. Because the Court Appeals affirmed properly decision, I deny would application defendant’s for appeal. leave to
As correctly noted the majority, the issue in this casе is whether plaintiff defendant is liable to personal protection insurance benefits under the no- 490 Mich by Marilyn Opinion Dissenting 500.3105(1) an insurer must provides act.1MCL
fault injuries accidental incurred for expenses its pay insured’s or use of motor ownership, operation, arising out of injuries occur when a vehicle is However, if (1) only liable in three situations: the insurer is parked, way in as to cause such the vehicle was when (2) was a when injury, risk of unreasonable perma- with equipment contact physical direct result (3) or when the was nently mounted on the into, occupying, the insured was sustained while from the vehicle.2 case, evidence from which In there was sufficient this satisfied could conclude that juror a reasonable A could have concluded that exception. jury the third when she alighting from plaintiff was during the direct injured. produced Evidencе of plaintiff: examination
Q. you car, apartment, your you your left headed to So happened? then what my up put mug, opened my
A. I door to coffee there, bag stepped aside to the car purse and work close that’s I fell. door and when
Q. you specifically? you doing were when fell What I car A. was door.
Q. you touching the car door? Were Absolutely. A.
Q. you Are sure about that?
A. Positive. Plaintiff also described accident on cross- examination: 1 MCL et 500.3101 seq. (c). 500.3106(1)(a), (b), аnd See MCL Ins Co v Allstate Dissenting Opinion by Marilyn Kelly,
Q. car, you your you As approached what carrying? were I carrying purse, mug A. was bag. coffee and a work Q. your you keys you? Did have Yes, I A. did.
Q. your keys What hand were in?
MyA. left hand.
Q. you What did do next? opened
IA. the car door. Q. you open Which hand did the car with? door My right A. hand.
Q. you Then did what do? put I my bag, my A. purse my book mug [sic] coffe my into
Q. you At point did come back out of vehicle? Yes, A. I did.
Q. you completely So were out of the at point?
A. Yes.
Q. ground? Feet were on the Yes, they
A. were.
Q. happened What next? I stepped A. way— out of the Q. you say When stepped way, you out what do mean? I stepped way give
A. my out door room to close. Q. you So positioned when were you were —where positioned along the side of car? away Far enough my
A. to shut door. Q. right Kind up where the shutting? door would end know, car, right You where the door meets the actual at the end door?
390 MICH 381 490 by Marilyn Dissenting Opinion that. know, length away from I didn’t body’s A. You myself. to shut the door on want then, Q. your was to the car your back So shoulders — right? Exactly. A.
Q. your you shut door with? hand did What My left hand. A. right?
Q. you, your car is behind So back —the A. Correct.
Q. left shutting your door with hand? You’re Right. A.
Q. Now, happened? then what I A. Then fell. Co,3
In v Mut Cas Krueger Lumbermen’s statutory meaning phrase Appeals considered 500.3106(1)(c). in MCL from the vehicle” “alighting statutory definition of The noted that there is no Court no on and that there was caselaw “alighting” term that, it is “[although concluded point. It nonetheless definition unnecessary attempt complete time, that an term are convinced individual at this we at until finished from a vehicle least ‘alighting’ has not on firmly ground.”4 both planted feet selectively quotes Krueger, claiming The majority alighting process typically case establishes “ firmly feet are planted finished when ‘both ”5 summarily then concludes ground.’ majority feet were on the outside plaintiffs that because 3 Co, 511; Krueger App Mut Cas 316 NW2d v Lumbermen’s 474 4 added). (emphasis Id. at 515 quoting Krueger, App Ante at 515. Mich аt Frazier v Allstate Ins Co Dissenting Opinion Marilyn Kelly, J. *9 vehicle, she had already completed the alighting process Therefore, when she fell. reasons, it her injuries 500.3106(1)(c). do not fall within the scope of MCL noted, As Krueger’s holding is not as straightforward the majority Rather, as posits. a careful reading reveals that Krueger held that alighting from a vehicle extends at least point to the at which a person has both feet on the ground. This is consistent with the dictionary’s definition “alight” of as to vehicle, “descend from a etc.” and “to stay settle or after descending; come to rest.”6
It follows that alighting from a vehicle is a process
that may may
not be complete when a person has
both feet on the ground.7 Indeed, as the Court of
noted,
Appeals
a person could
nearly
be
completely
inside a
yet have placed his оr her feet outside
ground.
vehicle on the
That person could not be said
to have alighted. Krueger’s holding
perfect
makes
sense
given that
temporal
no
limitation on the alighting
process is found in the statutory language. And it is also
consistent with the underlying policy of the parked-
500.3106(1):
motor-vehicle exclusion of MCL
to ensure
that an injury that
is
covered
the no-fault act
involves the use of the parked motor vehicle as a motor
vehicle.8
6
(2001).
College
Random
Dictionary
House Webster’s
7
Kimbrough, unpublished
See also
opinion per
Burks v
curiam of the
(Docket
Appeals,
4,
(“[W]e
August
Court
282229),
of
issued
p
2009
No.
3
[the
decline
interpret Krueger
defendant’s]
creating
invitation to
as
a
bright-line
precluding
500.3106(1)(c)]
coverage
rule
[MCL
under
when
ever a
planted firmly
claimant
ground.’
has ‘two feet...
on the
As we
observed,
Krueger expressly
have
this Court in
‘аttempt
refrained from
ing]
complete
a
‘alighting’
explained
definition’ of the term
only
that
process
incomplete
firmly
‘at least’ until both feet
contacted the
ground.”).
America,
See Putkamer v
Corp
Transamerica Ins
633;
Similarly,
both
may
an individual
have
recognized Appeals
entering—
process
in the
feet on the
while
vehicle. The Court
and,
alighting from —a
by analogy,
during
an
sustainеd
held that
expressly
the no-fault act.10
may
compensable
be
process
11Co,
Transamerica Ins
Likewise, in Teman v
door is
of the
opening
part
held that
a vehicle
Appeals
of MCL
purposes
vehicle
500.3106(l)(c).
part
door is
opening
If
a door can be
it follows that
entering process,
alighting process.
usually
part
fell,
she
she
case,
In
testified that before
*10
her
place
mug, purse,
had
entered her car to
partly
alighting
the act of
bag
completing
work
inside. She was
fell. It
car
the door when she
by shutting
from the
to close her car door
plaintiffs
efforts
appears
the
her
to
out from underneath her on
caused
feet
slide
completed
lot. She could not have
icy parking
from the vehicle and moved to the
alighting
If
door.
she
closing
driver’s side without
side, it could not
walking
had fallen while
to the driver’s
entering
alighting
hurt while
or
be said
she was
contrast,
or
car
By
opening
from
vehicle.
alighting
from the
door is
function of
for the
jury
There was sufficient evidence
have
it did that
from
concluded as
is entitled to
injured
vehicle when she was
and that she
ignores
majority
no-fault benefits.
misreads
Krueger
prog-
and its
long-established precedent
9
(1990).
Co,
660;
App
Hunt v Citizens Ins
Dissenting Opinion J. Hathaway, eny alighting process when it concludes that ground. whenever a feet are on the complete person’s reasons, I For these dissent from the decision to judgment Appeals reverse the Court of and would deny defendant’s for leave to application appeal.
CAVANAGH,J., KELLY, concurred with MARILYN HATHAWAY,J. Leave to not (dissenting). appeal was Rather, granted argument in this case. oral on defen- application appeal dant’s for leave to was heard in order to determine whether this Court should leave to grant deny leave to or take other appeal, appeal, peremptory action. heard oral I Having argument, deny would leave appeal because I am not persuaded that this Court should take further action in any unique, fact- case that should specific precedential have no value.