Michigan Court of Appeals; Docket # 339877; Unpublished
Judges Shapiro, Servitto, and Gadola; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this majority unpublished per curiam decision, the Court of Appeals affirmed the trial court’s grant of summary disposition for defendant Liberty Mutual Fire Insurance Company (Liberty) on the issues of priority, vehicle occupancy, and parked vehicle exceptions under MCL 500.3106. The Court of Appeals determined: (1) that Liberty was not required to raise priority in its first responsive pleading; (2) that plaintiff Timothy McAllister (McAllister) was not an occupant of a vehicle at the time he was injured; (3) that the parked vehicle that struck McAllister was not “involved in the accident.”
Plaintiff McAllister was injured while standing outside of a parked vehicle, owned by his fiancée, Heidi Dover. McAllister was standing in front of Dover’s vehicle, working on the protruding wiring on the vehicle’s grill, when two other vehicles collided nearby. One of the other vehicles collided with Dover’s vehicle, which then struck and injured McAllister. McAllister initiated a lawsuit naming Liberty, the insurer of Dover’s vehicle, as a co-defendant, seeking PIP benefits that he alleged were wrongfully withheld. More than one year after filing its response to plaintiff’s complaint, Liberty asserted that it was not the priority payor of PIP benefits, and moved for summary disposition, which the trial court granted.
McAllister first argues that Liberty should not have been granted summary disposition based on priority, because priority is an affirmative defense that Liberty should have raised in its first responsive pleading. The Court of Appeals disagreed, holding that not only is priority not an affirmative defense, but that Liberty was not “endeavoring to raise a ‘defense’ at all when it moved for summary disposition.” Liberty’s argument re priority was “not subject to waiver and could be raised at any time.”
McAllister argued secondly that he was an occupant of Dover’s vehicle at the time he was injured, thereby entitling him to PIP benefits from Liberty, the insurer of Dover’s vehicle. The Court of Appeals disagreed. Since Dover was standing outside the vehicle at the time he was injured, he was not an occupant of the vehicle under the no-fault act.
McAllister argued thirdly that Liberty is liable for payment of PIP benefits because it insured a vehicle involved in the accident. The Court of Appeals again disagreed, determining that Dover’s vehicle did not qualify for any of the parked vehicle exceptions under MCL 500.3106(1). The Court reasoned:
A parked vehicle typically is not “involved in an accident” because “[i]njuries involving parked vehicles do not normally involve the vehicle as a motor vehicle.” Stewart, 471 Mich at 698. In this case, the accident involved two other vehicles. One of those vehicles then hit a stationary object that just happened to be Dover’s parked pickup truck, thereby injuring plaintiff. Plaintiff testified that he parked Dover’s pickup in a parking spot in the parking lot, turned off the ignition, and got out of the truck. There was no allegation that the pickup was parked in such a way as to cause unreasonable risk of plaintiff’s injuries. There was also no evidence that plaintiff’s injuries were a direct result of physical contact with 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. Plaintiff also did not allege any evidence that his injuries were sustained while occupying, entering into, or alighting from the pickup. Rather, plaintiff testified that while he was standing in front of the parked pickup adjusting wires that protruded from the front of the truck, the truck driven by Vuich hit the rear passenger side of the parked pickup, causing it to spin around and hit plaintiff. The pickup therefore acted in much the same way any stationary object would and there was nothing about the fact that the object was a pickup truck that bears on the accident. Because none of the exceptions of MCL 500.3106 applies, plaintiff’s injuries did not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle, and therefore the parked pickup truck was not “involved in the accident” within the meaning of MCL 500.3115(1).
Justice Shapiro dissented, arguing that the trial court ought to reconsider the timing of Liberty’s priority defense, in that it may have created a prejudice to plaintiff.