BIALOCHOWSKI
v.
CROSS CONCRETE PUMPING CO., INC.
Docket No. 74243.
Michigan Court of Appeals.
Decided March 5, 1985.Law Offices of Samuel I. Bernstein (by Samuel I. Bernstein); and McBride & Sigman (by Barry Sigman), of counsel, for plaintiff.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Michael L. Updike), for defendant.
Before: HOOD, P.J., and M.J. KELLY and R.C. LIVO,[*] JJ.
PER CURIAM.
Defendant Reliance Insurance Company appeals as of right from the grant of plaintiff's motion for summary judgment, GCR 1963, 117.2(1). The trial judge held that Reliance, as plaintiff's workers' compensation carrier who had paid medical benefits, was not entitled to *318 share in plaintiff's recovery from a third-party tortfeasor.
Plaintiff was severely injured in an accident on a construction site. A pump malfunctioned, causing a 30-foot boom carrying concrete to collapse from a height of 20 feet. The collapsing boom crushed him. The boom and pump were permanently attached to a large concrete truck, which was parked on the site. It was pumping concrete to the second floor at the time that the pump failed. The truck was owned by defendant Cross Concrete Pumping Co., Inc.; plaintiff was employed by the Emmanuel Company. Defendant Reliance provided Emmanuel's workers' compensation coverage; it paid $150,562.42 in benefits due to plaintiff's on-the-job injuries.
Plaintiff sued Cross Concrete. The suit was settled. Plaintiff gave Cross a release on August 11, 1981, and a covenant not to sue on August 13, 1981. Cross agreed to pay plaintiff $750,000. The documents which embodied the settlement agreement indicated that the settlement covered any and all damages arising from the accident. No reference was made in these documents or in the pleadings before the court to motor vehicles or to no-fault automobile insurance.
Subsequently, plaintiff sought a declaratory judgment that the workers' compensation insurer was not entitled to any part of the settlement proceeds. Both the insurer, Reliance, and Cross Concrete were named as defendants. In its answer, Reliance asserted the validity of its workers' compensation lien on the settlement proceeds recovered by plaintiff.
Plaintiff moved for summary judgment, claiming that the settlement did not include recovery for damages (primarily medical benefits) paid by the workers' compensation insurer. The trial judge *319 granted the motion, relying on the Supreme Court's decision in Great American Ins Co v Queen, 410 Mich. 73; 300 NW2d 895 (1980).
In Queen, supra, the Supreme Court held that a workers' compensation insurance carrier is not entitled to reimbursement for its payments which substituted for no-fault benefits otherwise payable. Queen holds that payment of workers' compensation benefits which do not substitute for no-fault benefits gives rise to a right of reimbursement from third-party tort recoveries in the same manner as does the payment of workers' compensation benefits where no-fault benefits are not involved. Queen, p 97.
Reliance first claims that the accident in the present case was not a motor vehicle accident for which no-fault benefits are payable. Reliance argues that Queen is therefore inapplicable and Reliance is entitled to reimbursement under § 827 of the Worker's Disability Compensation Act, MCL 418.827; MSA 17.237(827). We disagree.
Plaintiff's complaint alleged that Cross Concrete owned the defective truck which injured plaintiff when its boom collapsed on him. Thus, plaintiff's action against Cross Concrete, the third-party tortfeasor, must have been brought pursuant to § 3135 of the no-fault act, MCL 500.3135; MSA 24.13135. Section 3135(1) provides:
"A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement."
Since the settlement is silent, we presume that the settlement compensated plaintiff for noneconomic losses. Keys v Travelers Ins Co, 124 Mich. App. 602, *320 605; 335 NW2d 100 (1983). Additionally, the truck which injured plaintiff was a motor vehicle. It was designed to be operated upon a public highway by power other than muscular power and had more than two wheels. MCL 500.3101(2)(c); MSA 24.13101(2)(c). Plaintiff's injury was caused by the collapse of a boom which was physically attached to the truck. The boom collapsed while concrete was being unloaded. Although not being used for transportation, the cement truck was being used for its intended purpose, i.e., job site delivery of cement. Unloading is a use incident to the primary transportational function of such vehicles and does not divest them of their character as motor vehicles or transform a motor vehicle accident into a construction-site accident for which no-fault benefits are not payable. Johnston v Hartford Ins Co, 131 Mich. App. 349, 354-356; 346 NW2d 549 (1984), lv den 419 Mich. 905 (1984).[1] Since plaintiff was injured in an accident for which no-fault benefits were payable, Queen is applicable.
Plaintiff was injured on June 13, 1980. The circuit court rendered its decision granting plaintiff summary judgment on August 16, 1983. Thus, most if not all monies paid by Reliance during that interval necessarily had to be paid in substitution for no-fault benefits. Such benefits which substitute for no-fault benefits are not recoverable. Queen, supra, p 97. However, Reliance claims that *321 it is entitled to a credit for future workers' compensation benefits not paid in substitution for no-fault benefits. Under § 827 of the Worker's Disability Compensation Act, an amount recovered from a third-party tortfeasor for noneconomic losses is treated as a credit in favor of the compensation carrier for future compensation payments. Pelkey v Elsea Realty & Investment Co, 394 Mich. 485; 232 NW2d 154 (1975). In Queen, the Court held that "[w]hen the carrier pays benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, it should be treated like all other workers' compensation carriers and be entitled to reimbursement out of any third-party recovery". Queen, supra, p 88. Whether Reliance is entitled to a credit, because the benefits it paid plaintiff exceeded no-fault benefits in amount or duration, involves a question of fact which makes summary judgment inappropriate under GCR 1963, 117.2(1): Consequently, we remand for a determination of the amount of Reliance's interest in benefits paid or payable over and beyond no-fault benefits.
In summary, we hold that this case is controlled by Queen, and that, under Queen, Reliance may not be reimbursed for any medical, wage, or other benefits which substitute for no-fault benefits. However, we further hold that Reliance is entitled to a lien as to benefits paid which exceed no-fault benefits in duration or amount. Therefore, we affirm the trial court's application of Queen, but reverse and remand for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In this respect, this case differs from Johnston v Hartford Ins Co, supra. In Johnston, plaintiff's action was against his own no-fault insurance carrier for personal protection insurance benefits. Johnston, therefore, dealt with §§ 3105 and 3106 of the no-fault act, MCL 500.3105; MSA 24.13105, MCL 500.3106; MSA 24.13106. In Johnston, the Court concluded that the crane which injured plaintiff was a motor vehicle under § 3101 but that the accident did not arise out of the use of a motor vehicle as a motor vehicle. Johnston, supra, pp 358-361. In the present case, plaintiff's action is brought pursuant to § 3135, which does not contain the additional phrase "as a motor vehicle" that is contained in § 3105.