335 N.W.2d 232 | Mich. Ct. App. | 1983
SHERMAN
v.
MICHIGAN MUTUAL INSURANCE COMPANY
Michigan Court of Appeals.
Ripple, Chambers & Steiner, P.C. (by Michael C. Bingen), for plaintiff.
Foster, Swift, Collins & Coey, P.C. (by Michael J. Schmedlen), for defendant.
*702 Before: T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.
PER CURIAM.
On March 22, 1982, the trial court entered summary judgment for defendant. Plaintiff appeals as of right.
On October 11, 1979, plaintiff injured his ankle while working for the Alvin Motor Freight Company. That day, he was unloading a trailer that had already been backed into a loading dock bay. While plaintiff and a co-employee were standing at opposite ends of the dock plate, they began to lift their respective ends with a steel hook. Unfortunately, a defective dock plate "snapped out" and hit plaintiff's leg, pinching it against a heavy roll of copper on the trailer.
Plaintiff now argues that his injury is covered by the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., as it existed at the time.[1] Because the truck was parked at the time, we will first apply MCL 500.3106; MSA 24.13106, which then stated:
"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:
* * *
"(b) The injury was a direct result of physical contact with the 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.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle."
*703 We agree with the trial court that this section does not preclude plaintiff from recovering. Defendant relies on Dowdy v Motorland Ins Co, 97 Mich App 242; 293 NW2d 782 (1980).[2] There, the plaintiff and two other truck drivers had just driven flatbed trucks from Louisville to Norristown, Indiana. The plaintiff unloaded last. As he was unloading the cargo and unfastening the tie chains used to secure the steel bundles, a stack which had previously been unloaded fell on him. This Court denied recovery under § 3106(b) because "the plaintiff was not injured due to contact with any equipment permanently affixed to the vehicle". 97 Mich App 247. In the present case, however, plaintiff had one foot on the loading dock and one foot on the trailer. As such, he was occupying the vehicle as required by MCL 500.3106(c); MSA 24.13106(c). Hathcox v Liberty Mutual Ins Co, 90 Mich App 511; 282 NW2d 374 (1979).
However, for plaintiff to recover, MCL 500.3105; MSA 24.13105 must also be met. Miller v Auto-Owners Ins Co, 411 Mich 633; 309 NW2d 544 (1981). In ruling that plaintiff had failed to demonstrate a sufficient causal connection between the motor vehicle and the injury, the trial court relied on Dowdy, supra, and Gajewski v Auto-Owners Ins Co, 112 Mich App 59; 314 NW2d 799 (1981).
Dowdy is distinguishable. There, as noted above, the plaintiff was injured when a stack which had previously been unloaded fell on him. In the present case, on the other hand, the injury occurred when a loading dock plate broke. It is foreseeable that a person could be injured in the positioning of *704 the dock plate while normally using the vehicle. Unloading or loading is not possible without using this dock plate. The injury in Dowdy was caused through a supervening event the stacks falling on him. Here, plaintiff was injured in the loading and unloading process itself. See Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307; 282 NW2d 301; 15 ALR4th 1 (1979), lv den 407 Mich 895 (1979). The injury was a direct result of this activity.
Relying on Judge CYNAR'S dissent, the Supreme Court reversed Gajewski. 414 Mich 968 (1982). There, the plaintiff was injured when he turned on his car. Unfortunately, someone had attached an explosive device to his ignition. Judge CYNAR wrote:
"The vehicle was more than merely the site of the injury. Under the facts in this case, turning the ignition key must be identified with a normal manner of starting a vehicle. There was a direct causal relationship between the use of the motor vehicle and plaintiff's injuries." 112 Mich App 63.
We believe that plaintiff has shown a sufficient causal connection. The truck was not merely the site of the injury. Unloading it is a normal part of the activities surrounding its use.
Defendant also argues that plaintiff's pleadings are insufficient. However, because defendant did not raise this claim below, it is not properly before this Court. Smith v Michigan, 122 Mich App 340; 333 NW2d 50 (1983).
The summary judgment entered for defendant is reversed and a partial summary judgment for plaintiff is entered. This case is remanded to the trial court to determine damages.
Reversed and remanded.
NOTES
[1] If the accident had occurred after December 31, 1981, MCL 500.3106(2); MSA 24.13106(2), added by 1981 PA 209, would most likely have barred recovery under these circumstances.
[2] Both parties have also relied on some unpublished opinions. Unpublished opinions have no precedential value. Babayan v Detroit Automobile Inter-Ins Exchange, 121 Mich App 515; 328 NW2d 429 (1982); Borgess Hospital v Berrien County, 114 Mich App 385, 386, fn 1; 319 NW2d 354 (1982).
