By Lee Dryden
BridgeTower Media Newswires
Should a man who was injured removing belongings from his vehicle after work be covered by no-fault insurance?
The Michigan Supreme Court is considering whether to grant leave to appeal after a split Michigan Court of Appeals ruled against the plaintiff in Kemp v. Farm Bureau General Ins. Co. of Michigan (MiLW No. 08-88575, 12 pages) in a May 2015 unpublished opinion. The appeals court affirmed the Wayne County court.
The high court heard oral arguments on the matter on Oct. 6, asking whether the plaintiff’s injury is closely related to the transportational function of his motor vehicle and if the injury had a “causal relationship to his parked motor vehicle that is more than incidental, fortuitous, or but for.”
Plaintiff Daniel Kemp injured his right calf and lower back when falling in his driveway while taking personal items out of his truck in September 2012.
The appeals court stated the injury had nothing to do with the truck’s transportational function.
“His injury plainly did not arise out of the use of a motor vehicle as a motor vehicle —plaintiff’s truck, which he used as a storage space for his personal items, was merely the site where the injury occurred, and any causal relationship between the injury and the parked truck was ‘incidental,’” according to the majority per curiam opinion from Judges Mark J. Cavanagh and Henry William Saad.
Judge Jane M. Beckering wrote in her dissent, “What is pertinent in this case is that plaintiff’s alleged injuries occurred as a direct result of unloading his personal effects from his vehicle. MCL 500.3106(1)(b) expressly provides coverage in such an instance.”
Before the Supreme Court, the attorneys debated what is permitted by the statute.
The injury is clearly related to the vehicle’s transportational function as Kemp was removing a briefcase, bag of clothing and thermos when he was injured upon returning home from work, said Marshall D. Lasser, Kemp’s lawyer.
“He was transporting himself and his work belongings home from work and, in the act of taking them out, he was injured,” Lasser told the high court. “This is precisely transportational. It is distinguished from the situation where you’re using your vehicle as a storage shed. You have it up on blocks in your backyard and you’re using it to store your pop bottles or whatever. He wasn’t using the vehicle as a storage shed, he was using it to transport his work belongings.”
Kemp was hurt because he was on his tiptoes, while stretching, lifting, twisting and bending, Lasser said.
“It was the act of unloading which caused the injury. It was not really incidental to the unloading,” he said.
Lasser said the statute provides for loading and unloading. “A vehicle is designed to transport not just people but property also,” he said.
Kemp had physical contact with the vehicle as he was grabbing the driver’s seat for balance as he was retrieving the items, Lasser said.
Amid questioning from justices about hypothetical scenarios, Lasser said the statute does not specify a timeframe in which items must be unloaded upon arrival to be related to the vehicle’s transportational function.
But injuries would not be covered if they occurred when lifting items that had been removed from the vehicle and set down on the driveway, Lasser said.
Chief Justice Robert P. Young Jr. spoke of the precedential value that the high court is seeking when considering cases.
“If it’s only about your case, then it has a great deal less value,” he said. “We don’t do error correction typically so unless your case has a generalizable value that can help us determine the next cases that come along you’re really diminishing the value of us considering the case.”
In the parked vehicle exception to no-fault liability, the Legislature didn’t intend to cover scenarios such as injuries occurring when pulling items out of a trunk or off a seat, said John J. Bursch, who represents Farm Bureau Insurance.
“It’s not covered,” he said. “If you would expand that statute in that way, it’s going to drive up premiums and we already, as you know, we have a state with the highest auto premiums in the country. This is not what the Legislature intended.”
Kemp has to satisfy three areas to prevail — the statute, transportational function and causal relationship, Bursch said.
“He can’t get past any of those barriers,” Bursch said.
Bursch said this is an error correction case and “the easiest thing to do would just be to deny leave to appeal.”
He cited a 1990 Court of Appeals case, Shellenberger v Insurance Co of North America, which upheld denial of no-fault benefits to a driver who was injured when reaching for his briefcase within his delivery truck.
The facts of that case were more compelling than Kemp’s case, Bursch said, as the vehicle was running and the driver needed paperwork from the briefcase to begin his journey.
Justice Richard H. Bernstein pointed out that it is customary for people to travel with belongings.
“They unload and load those possessions into and out of their vehicle as a part of the process of travel,” he said.
Bursch said there is generally no liability under the No-Fault Act for parked cars other than the narrow window created by the Legislature.
“This doesn’t cover the purse, the wallet, the suitcase, the briefcase because that’s entirely outside the context of every single word in this exception,” he said.
“The transportational function of the car ends once it’s parked,” he said. “Once the car is parked, you’re done.”
The easiest way to resolve the case is to say it was merely incidental, fortuitous or but for, Bursch said.
“Otherwise, every claim in the world taking any piece of property out of a car is covered and the Legislature did not intend that,” he said.
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