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No. 130855
| Michael Eugene Drake, |
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Mark R. Daane |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Hillsdale - Smith, M.) |
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| Citizens Insurance Company, |
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Joseph S. Mierzejewski |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
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Background
Michael Drake lost two fingers while clearing an obstruction from a device that pumps grain from a truck into a silo; this device is permanently connected to the truck. At the time, the truck was parked but running. Drake sued his no-fault carrier, Citizens Insurance Company, to recover insurance benefits. MCL 500.3105(1) provides that 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 . . . .” MCL 500.3106(1)(b) provides that “[a]ccidental bodily injury” does not arise out of the use of a parked vehicle as a motor vehicle, unless “the injury was 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 . . . .” Citizens Insurance denied that it owed benefits, arguing that Drake’s injuries did not arise out of the use of a motor vehicle as a motor vehicle. The trial court disagreed, holding that Drake’s injury did arise out of the use of a motor vehicle as a motor vehicle. Citizens appealed, but the Court of Appeals affirmed in a divided published opinion. The panel observed that the Supreme Court had held in McKenzie v ACIA, 458 Mich 214 (1998), that “whether an injury arises out of the use of a motor vehicle ‘as a motor vehicle’ under § 3105 turns on whether the injury is closely related to the transportational function of motor vehicles.” The Court of Appeals concluded that, here, the vehicle was a delivery truck that was being used as a delivery truck when the injury occurred. Thus, the injury was closely related to the motor vehicle’s transportational function. But the Court of Appeals majority also expressed concern that there was an inconsistency between the statutory language and the McKenzie transportational function test as applied in a case like this, involving a parked vehicle. Citizens appeals.
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