TAMARA WOODRING, Plaintiff-Appellee, v PHOENIX INSURANCE COMPANY, Defendant-Appellant.
No. 324128
STATE OF MICHIGAN COURT OF APPEALS
June 28, 2018
FOR PUBLICATION
Muskegon Circuit Court LC No. 14-049544-NI
Before: RONAYNE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.
Defendant appeals as on leave granted, pursuant to an order of remand from our Supreme Court, the trial court‘s denial of summary disposition in defendant‘s favor and grant of summary disposition in plaintiff‘s favor. For purposes of the instant appeal, the facts are undisputed. Plaintiff‘s employer provided her with a vehicle, which was insured by defendant. Plaintiff went to a self-serve spray car wash in early February, parked but left the vehicle running, began washing the vehicle, and as she worked her way around to the rear of the vehicle, she slipped and fell, suffering serious injuries. It is unknown why plaintiff slipped, or what she slipped on, but she believes it may have been ice. It is undisputed that plaintiff was not entering, occupying, exiting, or touching the vehicle at the time of her fall, although she was using the car wash‘s sprayer wand. The trial court‘s denial and grant of summary disposition was based in significant part on the fact that precedent from our Supreme Court, which was confusing, had not clearly overruled precedent from this Court, which was therefore still good law. We agree and affirm.
As an initial matter, the remand order from our Supreme Court reads, in its entirety, as follows:
By order of September 27, 2016, the application for leave to appeal the March 3, 2015 order of the Court of Appeals was held in abeyance pending the decision in Spectrum Health Hospitals v Westfield Ins Co (Docket No. 151419). On order of the Court, the case having been decided on June 30, 2017, 500 Mich [1024; 897 NW2d 166] (2017), the application is again considered and, pursuant to
MCR 7.305(H)(1) , in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. Among the issues to be considered, the Court of Appeals shall address whether the causal connection between the plaintiff‘s injuries and the maintenance of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or “but for.” Thornton v Allstate Ins Co, 425 Mich 643, 659 (1986). [Woodring v Phoenix Ins Co, 501 Mich 883; 901 NW2d 887 (2017).]
The decision in Spectrum consisted entirely of an order remanding that case to this Court for reconsideration in light of Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017). That case addresses whether a healthcare provider has a statutory cause of action against an insurer for the payment of PIP benefits; it does not appear to address any issues relevant to the instant appeal.
Plaintiff argues that the issue specified for consideration by our Supreme Court was not argued in the trial court and, therefore, is allegedly unpreserved. It is true that defendant only mentioned the requirement in its brief and provided no supporting argument whatsoever. However, defendant did argue at the motion hearing that plaintiff‘s act of washing her vehicle did not constitute a sufficient causal nexus, but rather “just merely a fortuitous location where the accident happened.” Defendant clearly makes a significantly more thorough argument on appeal, but that does not preclude appellate consideration where the issue itself is not wholly novel. See Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002). In any event, because we may not disregard explicit and comprehensible instructions given to us by our Supreme
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under
Much of the instant appeal turns on whether this Court‘s opinion in Musall v Golcheff, 174 Mich App 700; 436 NW2d 451 (1989), remains precedential. Defendant argues that it is not binding pursuant to
Our Supreme Court “recognizes the maxim expressio unius est exclusio alterius; that the express mention in a statute of one thing implies the exclusion of other similar things.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 677 (1997). Interpretation of a court rule follows the general rules of statutory construction. Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000). We think it reasonable to draw the negative inference that we are not strictly required to follow uncontradicted opinions from this Court decided prior to November 1, 1990, but we think they are nevertheless considered to be precedent and entitled to significantly greater deference than are unpublished cases. Consequently, we are not impressed by the suggestion that Musall has no precedential effect simply because it is an older case.
That being said, this Court may not follow any opinion previously decided by this Court, no matter when, to the extent that opinion conflicts with binding precedent from our Supreme Court, which may be any essentially anything it issues that conforms to
Although no published cases have defined the difference, “disavowal” must mean something distinct from “overruling.” See, e.g., Renny v Dep‘t of Transportation, 478 Mich 490, 505 n 36; 734 NW2d 518 (2007). It appears clear from usage that disavowal is a pronouncement that a rule of law stated in a case no longer applies without otherwise touching the result of the prior judgment. See Ray v Swager, 501 Mich 52, 72 n 49; 903 NW2d 366 (2017); Kidder v Ptacin, 284 Mich App 166, 171; 771 NW2d 806 (2009). Disavowal is, therefore, a repudiation that recognizes that a rule of law has been overruled as a consequence of some other decision, holding, or pronouncement, without itself constituting that overruling.
Because Lefevers can be comprehended, it is precedent binding on this Court and thus precludes this Court from relying on any prior decisions in conflict with it. Lefevers unambiguously held that Miller was disavowed to the extent it conflicts with Frazier, which did not itself mention Miller at all. However, Lefevers only stated that the exact portion of Miller that was “disavowed as dicta” was as follows:
Section 3106(b) recognizes that some parked vehicles may still be operated as motor vehicles, creating a risk of injury from such use as a vehicle. Thus a parked delivery truck may cause injury in the course of raising or lowering its lift or the door of a parked car, when opened into traffic, may cause an accident. Accidents of this type involve the vehicle as a motor vehicle. [Lefevers, 493 Mich at 960, quoting Miller, 411 Mich at 640.]
That is as far as the order went. We cannot comprehend any holding beyond that, and we think it would be inappropriate to imply anything additional to the order. The fact that Miller was only partially “disavowed” necessarily means that the trial court properly found Miller to also remain “good law” in part. Indeed, our Supreme Court has even recently cited Miller as remaining binding precedent at least in part. See Kemp v Farm Bureau Gen Ins Co of Michigan, 500 Mich 245, 542 n 36; 901 NW2d 534 (2017).
In Miller, our Supreme Court observed that it was incongruous for
In so doing, the Court concluded that the parking exclusion reflected a policy decision that parked cars were generally not operating as motor vehicles except in three general circumstances in which “an accident is nonetheless directly related to its character as a motor vehicle.” Id. at 640-641. Thus:
The policies underlying § 3105(1) and § 3106 thus are complementary rather than conflicting. Nothing of the policy behind the parking
exclusion to exclude injuries not resulting from the involvement of a vehicle as a motor vehicle conflicts with the policy of compensating injuries incurred in the course of maintaining (repairing) a motor vehicle. The terms of the parking exclusion should be construed to effectuate the policy they embody and to avoid conflict with another provision whose effect was intended to be complementary. […] [The plaintiff‘s] injury while replacing his shock absorbers clearly involved the maintenance of his vehicle as a motor vehicle. Compensation is thus required by the no-fault act without regard to whether his vehicle might be considered “parked” at the time of injury.” [Id. at 641.]
Plaintiff accurately points out that the plaintiff in Frazier was not engaged in any kind of maintenance, but rather simply closing the door of the vehicle after having alighted from the vehicle. Frazier, 490 Mich at 386-387. Likewise, it is apparent from this Court‘s opinion in Lefevers, to which we must refer in order to fully comprehend our Supreme Court‘s order, that the plaintiff in that case was also not engaging in maintenance, but rather attempting to open a trailer liftgate. Lefevers v State Farm Mut Automobile Ins Co, unpublished opinion per curiam of the Court of Appeals, decided December 13, 2011 (Docket No. 298216), slip op at p 2.
Nothing in either Frazier or Lefevers directly undermines the holding in Miller that the parked-vehicle exception in
Defendant argues that Frazier and Lefevers are not the only cases from our Supreme Court that have the effect of overruling the relevant holding of Miller. Defendant relies extensively on our Supreme Court‘s holding that scraping ice off a vehicle‘s windshield was unrelated to, inter alia, maintenance of a motor vehicle as a motor vehicle. Willer v Titan Ins Co, 480 Mich 1177; 747 NW2d 245 (2008). Notably, however, nothing in Willer stated that scraping ice was or was not maintenance; rather, it only addressed causation, which would be a function of
Otherwise, far from overturning it, our Supreme Court has reiterated that Miller had found “that because the injury arose out of ‘maintenance’ of the vehicle, it was unnecessary to consider whether the vehicle was parked,” but rather cautioned “that the Miller holding is limited to the narrow circumstances of that case.” Winter v Automobile Club of Michigan, 433 Mich 446, 457; 446 NW2d 132 (1989); Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 632 n 5; 563 NW2d 683 (1997). It is only otherwise
Obviously, Miller is no longer binding precedent in its entirety. However, its essential holding that “maintenance” of a parked vehicle will, at least under some circumstances, avoid triggering
Clearly, just as Michigan residents are completely expected to have some awareness of the practical implications of snow and ice, any Michigan resident would be aware that keeping their cars clean keeps them running longer and without danger. Considering the condition of our roads and the salt used for snow and ice on our roads, cleaning a car is essential to be able to see while driving. Nothing in McKenzie, Winter, Putkamer, Willer, Frazier, or Lefevers is inconsistent with this Court‘s finding in Musall that washing a car does indeed constitute the kind of maintenance that will avoid the operation of
We additionally note that the word “parked” is not defined in the No-Fault Act, and in fact only occurs in two sections out of the entirety of Chapter 500, those being
In particular, it should be clear that a vehicle is not necessarily “parked” just because it is stopped, halted, standing, or otherwise not presently in motion. Indeed, our Supreme Court has indicated that a lack of vehicular movement merely triggers a requirement to consider whether the vehicle is therefore “parked.” Winter, 433 Mich at 455. In that case, a tow truck “positioned perpendicular to the street with the front wheels against the curb” with the hand brake set was deemed “parked” while it was being used to assist the plaintiff in lifting and leveling concrete slabs. Id. at 448-449, 456. In contrast, it would seem completely unreasonable to conclude that a vehicle that is unambiguously still within
This Court subsequently applied the definition of “parking” found in
The most coherent and succinct definition of what constitutes a “parked” vehicle is whether it was “in use as a motor vehicle” or more “like ‘other stationary roadside objects that can be involved in vehicle accidents.‘” Heard v State Farm Mut Auto Ins Co, 414 Mich 139, 145; 324 NW2d 1 (1982). Ironically, in Heard, neither our Supreme Court nor this Court analyzed why the car, which was at a gasoline station where the plaintiff was pumping gasoline into it, was considered “parked” in that case; rather, both Courts appear to have presumed so and instead discussed whether it was “involved” in the accident. Insofar as we can determine, the plaintiff in Heard asserted that the vehicle had been parked, and the issue was never disputed. Similarly, in Musall, this Court treated the vehicle as parked but never analyzed the issue.
A somewhat less clear case is MacDonald v Michigan Mut Ins Co, 155 Mich App 650; 400 NW2d 305 (1986). Superficially, this Court apparently held that if the wheels were not moving, the vehicle was “parked.” Id. at 655-656. However, a more careful reading of the case and its context reveals that the trailer was in the process of having its wheels and axle adjusted, and it was fundamental to that particular operation that the wheels were supposed to be stationary while the trailer box was moved. Id. at 653. The plaintiff contended on appeal that the vehicle was not really parked because some slight shifting back and forth of the trailer box occurred; it was in that context that this Court focused on the movement of the wheels. Id. at 654-656. It therefore appears that the vehicle in question was in no state whatsoever to be operated and, consequently, was transportationally indistinguishable from any other piece of heavy equipment undergoing maintenance. This Court never addressed the maintenance exception pursuant to Miller, however, because the plaintiff was denied benefits under
Thus, we now turn to our Supreme Court‘s order to consider “whether the causal connection between the plaintiff‘s injuries and the maintenance of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.‘” As discussed, Willer is utterly barren of any worth to this analysis. It makes a specific reference to “on this record,” however, no record exists that may be readily found. It sets forth essentially no facts, and it is a reversal of an order of this Court denying leave to appeal, which also set forth no facts. Again, our Supreme Court‘s peremptory orders are only binding to the extent they can be comprehensible, and Willer simply is not. All we know is that on the facts of that case, whatever they were, the plaintiff in Willer failed to persuade our Supreme Court that there was a more-than-but-for causal connection between her injuries and the scraping of her windshield.
Defendant additionally cites several cases in which the plaintiffs in those cases allegedly slipped and fell “in the general vicinity of a vehicle” and were deemed to lack the requisite causal connection. Such a conclusion is obvious and irrelevant. It would naturally follow that merely being near to a vehicle will not spontaneously generate a causal connection to that vehicle. In contrast, plaintiff was actively engaged in performing essential maintenance to the vehicle pertinent to its use as a motor vehicle. It may have been routine maintenance and not necessarily of immediate urgency to permit it to move at all, but essential maintenance nonetheless. Because Musall remains controlling precedent and has already determined that such a causal nexus exists on highly similar facts, we would follow that conclusion even if we did not agree with it.
We respectfully disagree with our dissenting colleague‘s estimation of Williams v Pioneer State Mut Ins Co, 497 Mich 875; 857 NW2d 1 (2014). As the Court held in that matter, the tree branch in that case was not causally linked to any act or omission of the plaintiff. It was not one of the branches plaintiff removed from the car, it was not struck by or otherwise caused to fall by plaintiff or
In summary, we find that the maintenance exception is still “good law,” that it applies to the facts in this case, that there would necessarily be a genuine question of material fact for the jury even if the maintenance exception did not apply here, and that there is a sufficient causal nexus “between the plaintiff‘s injuries
/s/ Amy Ronayne Krause
/s/ Jane E. Markey