BAUMAN
v.
AUTO-OWNERS INSURANCE COMPANY
Docket No. 72089.
Michigan Court of Appeals.
Decided March 21, 1984.Pinsky, Smith & Soet (by Edward M. Smith and Mary A. Dinkel), for plaintiff.
Linsey, Strain & Worsfold, P.C. (by Larry D. Vander Wal), for defendant.
*103 Before: ALLEN, P.J., and R.M. MAHER and R.H. BELL,[*] JJ.
R.H. BELL, J.
Plaintiff appeals as of right from an order entered in the Kent County Circuit Court which granted defendant's motion for summary judgment determining that, as a matter of law, plaintiff was not entitled to recover no-fault benefits.
During the course of his employment with Spartan Stores, plaintiff was required to drive a truck and to aid in the unloading of the truck's trailer. Plaintiff was injured while he was moving boxes to the door of his trailer where they were to be picked up by another Spartan Stores employee. As he pulled a box off a skid, his back gave out. After the injury, plaintiff ultimately terminated his employment with Spartan Stores. When defendant, Spartan Stores' no-fault insurance carrier, denied him no-fault benefits, plaintiff instituted this action.
The question for our resolution is whether it can be said that plaintiff's injury was covered by the no-fault insurance act, MCL 500.3101, et seq.; MSA 24.13101, et seq., as it existed at the time of plaintiff's injury.[1] Plaintiff's claim for recovery is premised upon MCL 500.3106; MSA 24.13106, which provided in pertinent part at the time of plaintiff's injury:
"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
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"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle."
Defendant does not dispute that plaintiff was occupying a motor vehicle at the time of his injury. Defendant contends, however, that the vehicle presented the mere "occasion of the injury" and that there was no causal connection between the injury and plaintiff's ownership, operation or use of the vehicle as a motor vehicle.
In Teman v Transamerica Ins Co of Michigan, 123 Mich. App. 262, 265-266; 333 NW2d 244 (1983), this Court reiterated that, under the two-tier analysis it uses to determine if no-fault benefits may be recovered for injuries sustained in an incident involving a parked motor vehicle, it must be determined that the injury is causally related to the ownership, operation, maintenance or use of a motor vehicle. Contrary to defendant's position, however, we believe that plaintiff's injury was causally related to the use of his motor vehicle.
The facts of the instant case closely parallel those of Sherman v Michigan Mutual Ins Co, 124 Mich. App. 700; 335 NW2d 232 (1983). There, plaintiff's injury occurred during the process of unloading his truck when a loading dock plate broke and hit his leg. At that time, plaintiff had one foot on his trailer, and this Court concluded that this was sufficient to show that he occupied the truck as required by MCL 500.3106(c); MSA 24.13106(c). The Sherman Court found a causal connection between plaintiff's injury and his motor vehicle, noting that loading and unloading would be impossible without the dock plate and that it is foreseeable that a person could be injured while positioning a dock plate. Similarly, the unloading of the *105 truck in this case could not occur without actually moving the goods to be unloaded, and it is foreseeable that, while moving the goods, plaintiff could be injured.
Although defendant does not cite Sherman, which was not yet published in the advance sheets of the Michigan Court of Appeals Reports at the time it submitted its brief, based upon its argument in discussing analogous cases, defendant would apparently contend that this case differs from Sherman in that the injury here did not involve equipment necessary in the process of loading or unloading. Instead, defendant would continue to argue that the trailer was merely the site of plaintiff's injury and that plaintiff could have twisted and injured his back anywhere.
We find the federal district court's opinion in BASF Wyandotte Corp v Transport Ins Co, 523 F Supp 515, 517 (ED Mich, 1981), persuasive, however, wherein the court said:
"Using the broad remedial interpretation that is mandated in the interpretation of the No-Fault Insurance Act, it becomes clear that use of a motor vehicle as a motor vehicle must include the loading and unloading of the vehicle. The motor vehicle involved in this case is a commercial tank truck, and certainly one of its basic uses is its loading and unloading. The term `use' should be understood in its most comprehensive sense, and clearly is not confined merely to motion on the highway. It extends to any activity utilizing the insured vehicle in the manner intended or contemplated by the insured. A tank truck would be of no use were it not loaded and unloaded.
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"In this case the tank truck, both tractor and trailer together, constitute a motor vehicle for the purpose of the Michigan No-Fault Act. Inherent in the use of a commercial tank truck is the loading, transporting, and *106 unloading of the cargo. Where the motor vehicle in question is a tank truck, as here, and loading and unloading are inherent in its use, as here, then it is clear that it is covered by the statutory language."
Although BASF Wyandotte involved an action for property protection benefits, we nonetheless find that its rationale is applicable here. Inherent in the use of the truck and semitrailer plaintiff was operating was the loading and unloading of merchandise. As such, plaintiff's injury was causally related to the use of a motor vehicle.[2]
Reversed and remanded. Plaintiff-appellant may tax costs.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Had plaintiff's injury been incurred after December 31, 1981, MCL 500.3106(2); MSA 24.13106(2), added by 1981 PA 209, would have precluded his recovery.
[2] We do not mean to imply that this Court finds that plaintiff did, indeed, suffer the injury of which he has complained. We note that defendant, in answer to plaintiff's complaint, has not admitted that an injury was sustained. We do hold, however, that, if indeed plaintiff can prove he sustained the injury of which he complains, he will be entitled to recover no-fault benefits.