52 Mich. App. 40 | Mich. Ct. App. | 1974
Lead Opinion
This appeal requires consideration of a standard automobile insurance policy clause. The direct issue is one of first impression in Michigan. Plaintiff-appellee, Bruce Nickerson (hereinafter plaintiff), seeks to confirm an arbitration award in his favor. Defendant-appellant, Citizens Mutual (hereinafter Citizens), claims that plaintiff was not covered by the policy.
The issue for decision is:
DOES THE PASSENGER OF A DISABLED AUTOMOBILE LOSE HIS STATUS AS AN "OCCUPANT” BY EXITING THE AUTOMOBILE AND REMAINING WITHOUT ANY CONTACT, IN FRONT OF THE AUTOMOBILE, WHILE AWAITING AID, IF THE POLICY COVERAGE IS LIMITED TO OCCUPANTS ’IN OR UPON THE A UTO OR ENTERING INTO OR ALIGHTING FROM” THE AUTOMOBILE?
The facts revealed by the record indicate that in the early morning hours of December 24, 1969, plaintiff was a passenger in a motor vehicle operated by Curtis Parvin on Highway M-15 in the City of Davison, Michigan. The automobile was owned by Eugene L. Parvin. The vehicle was proceeding in a northbound direction when it stalled. The occupants pushed the automobile to the right side of the road, next to the curb. Assistance was sought and received from a passing motorist but the efforts of the parties failed to get the automobile started again. Shortly thereafter, a second passing motorist was flagged down and he agreed to provide assistance. He drove his automobile a short distance to the north where there was a parking lot so as to be able to turn his automobile around and render the needed assistance. As this was occurring, plaintiff got out of the Parvin auto
As a result of arbitration, plaintiff was awarded the policy limit of $10,000. The arbitrator left the question of "automobile occupancy” to court interpretation.
Counsel for plaintiff filed a complaint in Genesee County Circuit Court praying that the court confirm the arbitrator’s award. After the filing of motions and briefs, the circuit judge filed an opinion finding that at the time he was injured plaintiff was occupying the Parvin automobile and was an "assured” under the terms of the policy. Judgment was entered in favor of plaintiff.
Plaintiff first raises a challenge to Citizens’ right to contest the arbitrator’s award confirmed by the
Plaintiff argues that the key to determining his status under the above policy language is "continuity of action”. He argues that he was an occupant, left the car only temporarily to participate in the repair and intended to continue his journey in the insured vehicle. This presented an arguable and close question of law. Plaintiff contends that the two key factors are "immediate prior occu
Certain of the reported decisions, including the three relied upon by plaintiff,
Looking to 12 Couch, Insurance (2d ed), § 45.158, we find a careful consideration of the term "alighting” as used in the policy clause in issue:
"The word 'while,’ as used in the phrase, 'while*46 alighting’ refers to some continuity of action by the insured, and to the time during which, or as long as, the alighting takes place. (Citation omitted.)
"Consequently, a person is not in the process of 'alighting’ within a policy providing medical services recovery for persons sustaining bodily injury caused by accident 'while in or upon, entering or alighting’ from an automobile, if at the time of the injury he has completed all the acts normally performed by the average person in getting out of an automobile under similar conditions and if he has embarked upon a course of conduct entirely distinct from that reasonably necessary to make an exit from the car. (Citation omitted.)” pp 220-221.
Plaintiff was standing in front of the car. He had completed all acts normal to getting out of the car (standing in front) and was embarked upon the distinct course of conduct
Reversed and remanded. No costs.
The relevant testimony of Bruce Nickerson reads as follows:
"Q. The last you recall is that you had gotten out of the driver’s side of the Parvin vehicle and walked around the left front, and you were then standing in front of the car?
"A. Yes.
"Q. You recall that?
"A. Yes.
"Q. Standing directly in front?
"A. I don’t remember, sir.
"Q. How far in front of the car, if you recall?
"A. I believe I was pretty close to the car. I went around in front and was watching the other car turn around in the parking lot, and I was getting ready to walk back to go to the side of the car.
"Q. At the time of the collision, your back was to the Parvin car?
"A. Yes.
"Q. And you were watching the car in the parking lot at the Yankee Store just to the north?
"A. Yes.”
GCR 769 provides inter alia:
".9 Vacating an Award.
"(2) An application under this Rule shall be made within 20 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 20 days after such grounds are known or should have been known.
".10 Modification or Correction of Award.
"(1) Upon application by motion made within 20 days after delivery of a copy of the award to the applicant, the court, shall modify or correct the award where * * * .”
Motor Vehicle Accident Indemnification Corp v Oppedisano, 41 Misc 2d 1029; 246 NYS2d 879 (1964), where the Court found the plaintiff was in actual contact with the auto, thus being "upon” the auto; and Madden v Farm Bureau Mutual Automobile Insurance Co, 82 Ohio App 111; 79 NE2d 586 (1948), where plaintiff was in the act of putting a tire in the trunk with a portion of his body within the trunk; and also Collins v Motorists Mutual Insurance Co, 36 Mich App 424; 194 NW2d 148 (1971), where the principal thrust of the decision concerned the "other insurance” clause and the plaintiff was leaning over the trunk at the time of injury.
It should be noted that the evidence clearly demonstrates that plaintiff intended to get back in the car and resume his journey after the car was repaired.
Dissenting Opinion
(dissenting). Having carefully considered the majority opinion in this matter, I find myself unable to concur therein.
As the majority opinion acknowledges, this Court has broadly construed an insurance policy provision defining "occupying” as being "in or upon, entering into or alighting from” an automobile to include a passenger who had exited from a friend’s car and was bending over the trunk at the time of a fatal accident. Collins v Motorists Mutual Insurance Co, 36 Mich App 424; 194 NW2d 148 (1971). Indeed, the prevailing opinion indicates that, had plaintiff in this case been in physical contact with the disabled vehicle at the time of the accident, he would be deemed an occupant for purposes of the insurance policy presently under consideration.
Thus, the pivotal question becomes whether plaintiff’s lack of physical contact with the disabled automobile at the time of the accident deprives him of the status of an occupant even though the evidence indicated that plaintiff had been in the car immediately prior to the accident, had exited for the limited purpose of assisting in its repair, and intended to resume his journey directly thereafter. Once the validity of the Collins interpretation of occupant is assumed, the problem obviously becomes a question of determining which of those persons outside the passenger compartment of the automobile are to be considered occupants. The majority’s physical contact requirement seems to me less analytically appropriate than the "continuity of action” test urged by plaintiff and employed by the trial court. Most basically, an injured party’s physical contact with a vehicle at the time of the mishap is an entirely fortuitous circumstance having no consistent relationship with the intended use of the vehicle as a mode of
I would affirm.
