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Balsamo v Corrigan Enterprises, Inc, et al (UNP – COA 8/19/2021; RB # 4307)

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Michigan Court of Appeals; Docket #354137; Unpublished
Judges Riordan, Markey, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
General/Miscellaneous [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendants Corrigan Enterprises, Inc. (“Corrigan”) and Justin Prall’s motion for summary disposition, in which they argued that the no-fault act—MCL 500.3135, specifically—applied to Plaintiff Guiseppe Balsamo’s lawsuit, which arose out of an injury Balsamo sustained while unloading construction equipment from a trailer. The Court of Appeals held that Balsamo’s lawsuit was, in fact, a third-party tort case under MCL 500.3135(1), not a general negligence action.

Balsamo was injured on a construction site while attempting to assist Prall in unloading a roller machine from the back of a flatbed trailer. Prall had arrived at the construction site moments prior, parked his vehicle, and solicited Balsamo’s support in removing the roller machine from the trailer, which was icy and wet. Balsamo got on top of the trailer and inside the roller machine to try and control it as Prall stood to the side and operated the trailer lift with a remote control. As Prall lifted and tilted the trailer, the roller machine became unsteady, ultimately sliding off the side of the trailer, falling to the ground, and pinning Balsamo underneath it. Balsamo then sued Prall and his employer, Corrigan, asserting general negligence claims against them. Prall and Corrigan filed a motion thereafter arguing that Balsamo’s claims were governed by the no-fault act and that their liability was therefore limited by the statutory provisions of the no-fault act. The trial court disagreed and denied their motion.

The Court of Appeals reversed the trial court’s denial of Prall and Corrigan’s motion, however, holding first that Balsamo’s claim was, in fact, best understood as a third-party tort case governed by MCL 500.3135(1). The Court noted, preliminarily, that it is well established under Michigan law that a trailer qualifies as a “motor vehicle” under MCL 500.3101(3)(i). The operative question, then, was whether Balsamo’s injuries arose out of Prall and Corrigan’s “ownership, maintenance, or use” of the trailer. The Court answered this question in the affirmative, relying on the previous cases of Gunsell v Ryan, 236 Mich App 204 (1999), overruled on other grounds by Frazier v Allstate Ins Co, 490 Mich 381, Drake v Citizens Ins Co of America, 270 Mich App 22 (2006), Celina Mut Ins Co v Citizens Ins Co, 136 Mich App 315 (1984), and Citizens Ins Co of America, 135 Mich App 465 (1984). In Gunsell, the Court affirmed “the general principle that a plaintiff cannot bypass applicability of the no-fault act by framing his lawsuit as one alleging general or ordinary negligence”; in Drake, the “[Court] held that a plaintiff’s injury sustained while helping a truck driver unload cargo from a parked vehicle is subject to the provisions of the No-Fault Act”; in Citizens, the Court held that “provision of the No-Fault Act apply to injuries sustained by a person who falls off a parked semi-trailer during the process of unloading that trailer”; and in Celina, the Court held that “claim for injuries arising from the loading or unloading of a parked semi-trailer is subject to the No-Fault Act.” Based on these authorities, the Court of Appeals held that, in this case, “[Balsamo’s] injuries arose out of the ownership, maintenance, or use of a motor vehicle, and that liability is therefore governed by the no-fault act.”

The Court of Appeals next rejected Balsamo’s argument that the no-fault act does not apply in this case “because his injuries did not arise from Prall’s operation of the trailer, but rather arose out of the fact that the roller fell on him.” The Court noted that Balsamo, himself, drew a direct connection in the trial court between Prall’s movement of the trailer lift and Balsamo’s injuries, and that Balsamo’s own expert witness concluded that Prall’s “ ‘significant and unnecessary lifting of the tilt bed while someone was on the equipment on the trailer [was] the direct cause of the roller/compactor sliding off the trailer.’ ” Furthermore, the Court noted that, on appeal, Balsamo averred that “ ‘Prall then used the remote control to lift the front of the trailer in an attempt to unload the roller, causing the roller to slide.’ ” Thus, the Court held that there was a causal connection between the injury and the ownership, maintenance, or use of the trailer.

If an injury arises out of the ownership, maintenance or use of a motor vehicle, liability is governed by the provisions of the No-Fault Act. Michigan Bell, 153 Mich App at 434. Thus, “some sort of causal connection between the injury and the ownership, maintenance, or use of the vehicle” is required for the No-Fault Act to apply. Thornton v Allstate Ins Co, 425 Mich 643, 649; 391 NW2d 320 (1986). Typical “but for” causation is insufficient:

[W]hile the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. [Id. at 650-651, quoting Kangas v Aetna Cas & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975).]

In this case, the tilt-deck trailer owned by Corrigan and operated by Prall was designed for the loading, carrying, and unloading of heavy cargo. The normal use of the motor vehicle involved operation of the tilt-deck while heavy equipment was located on that deck. Plaintiff alleged that Prall acted negligently because he tilted the deck—in icy conditions—without using the attached winch to secure the heavy equipment, which could have prevented that heavy equipment from sliding during movement of the underlying deck. In light of the allegations in plaintiff’s Second Amended Complaint and plaintiff’s expert-witness report, and under the Thornton/Kangas analysis, we conclude that there is no genuine issue of material fact. Plaintiff alleged that his injuries were causally connected to Prall’s operation of the trailer, and the evidence before the trial court supported those allegations. The No-Fault Act applies to plaintiff’s claims.

The Court of Appeals next rejected Balsamo’s argument that the no-fault act did not apply because the trailer was parked at the time of his injury, and therefore “not a motor vehicle in use as a motor vehicle” at that time. The Court noted that Balsamo’s argument was “based on language found in the PIP provisions of the No-Fault Act,” and that the “as a motor vehicle” language is not found in MCL 500.3135.

First, we note that plaintiff’s argument runs contrary to the holdings in Gunsell, Drake, Celina, and Citizens, all of which involved a parked vehicle. Second, plaintiff’s argument is based on language found in the PIP provisions of the No-Fault Act. “Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1) (emphasis added). The term “accidental bodily injury” is not, however, found in the No-Fault Act’s third-party tort provision, MCL 500.3135. As such, whether an “accidental bodily injury” has occurred, so as to enable plaintiff to recover PIP benefits, has no bearing on whether a defendant may avail himself of the protections of MCL 500.3135 when accused of negligence arising from his own use of a motor vehicle.

Furthermore, the Court of Appeals rejected Balsamo’s argument that, because he was precluded from collecting PIP benefits pursuant to MCL 500.3106(2)—because he received workers’ compensation benefits for the same injuries—the no-fault act did not apply to his lawsuit. The Court held that Balsamo failed to cite any caselaw “holding that, where a plaintiff receives workers’ compensation benefits in lieu of PIP benefits, his injuries do not arise from the ownership, maintenance, or use of a motor vehicle [for purposes of MCL 500.3135].” Even if the Court were to grant Balsamo’s premise in this regard, however, “that the statutory language applicable to PIP claims also applies to this non-PIP case,” it held that his argument would fail nonetheless under the “three-step framework” for determining entitlement in situations involving parked vehicles set forth in Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich 245 (2017). That three-step framework is as follows:

First, the claimant must demonstrate that his or her conduct fits one of the three exceptions of subsection 3106(1). Second, the claimant must show that the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle. Finally, the claimant must demonstrate that the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for. [Id. at 253 (cleaned up).]

The Court explained (1) that Balsamo was injured while equipment was being “ ‘lowered from the vehicle in the loading or unloading process’ ” pursuant to MCL 500.3106(1)(b), (2) that Balsamo’s injury arose out of the use of the parked motor vehicle as a motor vehicle, as the Supreme Court has held that “ ‘unloading property from a vehicle upon arrival at a destination constitutes use of a motor vehicle as a motor vehicle and satisfied the transportational function requirement’ ” McKenzie v Auto Club Ins Ass’n, 458 Mich 214 (1998), and (3) that, based on prior Supreme Court precedent “that an injury sustained while unloading property from a vehicle upon arrival at a destination can be foreseeably identifiable with the normal use of a vehicle,” “[Balsamo’s] injury in this case could be considered ‘foreseeably identifiable with the normal use of a vehicle.’ ”

 

 

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