WILLIAMS
v.
ALLSTATE INSURANCE COMPANY
Docket No. 76619.
Michigan Court of Appeals.
Decided April 18, 1985.Glotta, Adelman, Dinges & Riley, P.C. (by Richard M. Skutt), for plaintiff.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Eric A. Andrzejak), for defendant.
Before: T.M. BURNS, P.J., and SHEPHERD and M. WARSHAWSKY,[*] JJ.
PER CURIAM.
Plaintiff commenced this action for personal injury protection (PIP) benefits. MCL 500.3107; MSA 24.13107. Both parties filed motions for summary judgment under GCR 1963, 117.2(3). On January 31, 1984, the trial court granted summary judgment in favor of defendant and denied plaintiff's motion for summary judgment. Plaintiff appeals as of right.
The issue in this case is whether plaintiff's uninsured motor vehicle was "involved in the accident" within the meaning of MCL 500.3113(b); MSA 24.13113(b), thereby precluding him from obtaining PIP benefits from defendant.
The accident occurred on November 13, 1982, at approximately 2:30 a.m. Plaintiff was driving his uninsured automobile on I-275 when the car stalled, leaving it without mechanical or electrical power. Another motorist stopped and assisted plaintiff in moving the car to the right shoulder of *180 the highway; however, it is undisputed that two to three feet of the car extended into the traveled portion of the right lane. Plaintiff was standing in front of his automobile when a car insured by defendant struck the portion of plaintiff's car which extended into the right lane and propelled it into plaintiff, causing him bodily injury.
Since plaintiff's vehicle was not insured under the no-fault act, plaintiff is not entitled to collect PIP benefits from defendant if his motor vehicle was "involved in the accident". Heard v State Farm Mutual Automobile Ins Co, 414 Mich. 139, 145; 324 NW2d 1 (1982), MCL 500.3113(b); MSA 24.13113(b). A parked vehicle is not "involved in the accident" under the statute unless one of the exceptions to the parked vehicle provision (MCL 500.3106; MSA 24.13106) is applicable. Heard, supra, p 144. Under § 3106(1)(a), an exception to the parked vehicle exclusion is provided where "[t]he vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred". In the present case the trial court found § 3106(1)(a) applicable and concluded that plaintiff's uninsured vehicle was "involved in the accident", thereby precluding him from obtaining PIP benefits. Braun v Citizens Ins Co, 124 Mich. App. 822; 335 NW2d 701 (1983). We affirm.
Plaintiff argues for the first time on appeal that whether § 3106(1)(a) applies is a genuine question of material fact and not a proper matter for summary judgment. In Autry v Allstate Ins Co, 130 Mich. App. 585; 344 NW2d 588 (1983), a panel of this Court drew an analogy to Cassidy v McGovern, 415 Mich. 483; 330 NW2d 22 (1982), and determined that whether a motor vehicle "was parked in such a way as to cause unreasonable risk of the bodily injury which occurred" within the meaning of § 3106(1)(a) is an issue of statutory *181 construction to be decided by the court. Judge M.J. KELLY dissented, finding that the issue must be submitted to the finder of fact.
We find it unnecessary to reslove this question in the instant case. Both parties moved for summary judgment under subrule 117.2(3). Plaintiff expressly argued that there was no disputed issue of material fact and urged the trial court to rule as a matter of law in his favor. Plaintiff at no time asserted the existence of a question of material fact in the trial court. Under these circumstances, we hold that the trial court did not err in deciding the applicability of § 3106(1)(a) as a matter of law.
It is undisputed that plaintiff's disabled and unlighted vehicle was left with at least two to three feet of the car protruding into the traveled portion of the expressway. The accident occurred during the early morning hours and there were no artificial lights covering this portion of the roadway. We conclude that the trial court did not err in ruling as a matter of law that plaintiff's vehicle "was parked in such a way as to cause unreasonable risk of the bodily injury which occurred". Plaintiff's uninsured vehicle was therefore "involved in the accident", and plaintiff is not entitled to PIP benefits. Braun v Citizens Ins Co, supra. MCL 500.3113(b); MSA 24.13113(b).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.