Michigan Court of Appeals; Docket #356272; Unpublished
Judges Jansen, O’Brien, and Hood; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Rosita Ann Wilson’s first-party action against Defendant Citizens Insurance Company of the Midwest (“Citizens”). The Court of Appeals held that Wilson was not entitled to no-fault PIP benefits related to the injuries she sustained after slipping in her driveway while attempting to unload a TV from her parked vehicle, because (1) she was not in direct physical contact with the TV at the moment she slipped for purposes of MCL 500.3106(1)(b), and (2) she was not alighting from her vehicle at the moment she slipped for purposes of MCL 500.3106(1)(c).
After parking her car in her driveway, Rosita Wilson exited the car and walked to its rear to unload a TV in the backseat. She attempted to go through the rear driver-side door to unload the TV, but after leaning into the vehicle, she realized it would be easier to unload from the other side. Thus, she re-exited the vehicle, straightened her back, then slipped and injured her head. She thereafter applied for PIP benefits related to her injuries from her no-fault insurer, Citizens, but Citizens denied her claim and moved for summary disposition in her subsequent first-party action, arguing that none of the parked vehicle exceptions set forth in MCL 500.3106(1) applied to the facts of her case. The trial court agreed, granting Citizens’ motion.
The Court of Appeals affirmed the trial court’s summary disposition order, holding, first, that the parked vehicle exception set forth in MCL 500.3106(1)(b) did not apply in this case because Wilson was not making physical contact with the TV at the moment she fell.
“Regarding steps two and three, the trial court held that ‘[w]hile Plaintiff may have sufficiently demonstrated that she was using her van in a transportational function and that there was a causal relationship, those steps do not matter if Plaintiff was not in contact with the property.’ Therefore, the issue in this case is whether plaintiff can demonstrate that her conduct fits within one of the statutory exceptions.
The trial court concluded that the exception in MCL 500.3106(1)(b) for loading and unloading did not apply to provide plaintiff with no-fault benefits because she was not in direct contact with the TV when she fell. This was not in error. ‘Plaintiff must show that his injury was caused by contact with the property being loaded or unloaded.’ Kemp, 500 Mich at 255. Here, plaintiff has provided no evidence that she was in contact with the TV at the time that she fell.”
The Court of Appeals held, second, that the parked vehicle exception set forth in MCL 500.3106(1)(c) did not apply in this case because Wilson was not alighting from her vehicle at the time she fell. At the moment she fell, she had already alighted from the vehicle and walked to its rear, and she was not alighting from the vehicle a second time when she leaned out of it after realizing she should unload the TV from the other side, because she had not reoccupied the vehicle when she had first leaned in.
“It is clear that plaintiff had already alighted from her vehicle at the time that her injury occurred. Id. at 387. She exited from the driver’s seat and went to the back-passenger door on the driver’s side to retrieve the TV. There is no evidence that she reentered the vehicle as to occupy it, and therefore no evidence that she thereafter alighted from the vehicle a second time. There is no evidence that she took either foot off the ground. Rather, she testified that she let go of the TV, was not touching anything, stood up, and the next thing she remembered, she was on the ground. There is no evidence that plaintiff had any intent to reenter the vehicle. Graves, 335 Mich App at 23. Her purpose of opening the back-passenger door was to take out the TV. Therefore, plaintiff was not in the process of occupying, entering, or alighting from her vehicle at the time of her injury, and the exception in MCL 500.3106(1)(c) does not apply. The trial court did not err by granting defendant summary disposition, and based on these conclusions, the trial court did not abuse its discretion by denying plaintiff’s motion for reconsideration.”