Walega v. Walega

STATE OF MICHIGAN

COURT OF APPEALS

CHARLES WALEGA, FOR PUBLICATION
September 10, 2015
Plaintiff-Appellee, 9:05 a.m.

v No. 321721
Macomb Circuit Court
KATHLEEN WALEGA and STATE FARM LC No. 2012-004598-NI
MUTUAL AUTOMOBILE INSURANCE
COMPANY,

Defendants,

and

FARM BUREAU INSURANCE COMPANY,

Defendant-Appellant.

Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.

WILDER, J.

In this action for no-fault benefits, defendant, Farm Bureau Insurance Company, appeals
as of right from an order entering judgment for plaintiff, Charles Walega, in the amount of
$75,000, but preserving defendant’s right to appeal the trial court’s grant of summary disposition
in favor of plaintiff and denial of defendant’s motion for reconsideration. Because we conclude
that plaintiff’s injury arose out of the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle, we affirm.

On November 2, 2011, plaintiff, with the assistance of his wife, Kathleen Walega, was
moving a gun safe that weighed over 1500 pounds. It is undisputed that plaintiff’s truck was
being used to assist in moving the safe. However, there is a factual dispute regarding how the
safe was being moved and the location of the safe at the time the injury occurred.

According to defendant, the safe had been attached to the truck by way of a rope, but was
still on the ground while it was being moved. Defendant relies on medical records, as well as a
statement posted on Facebook by Kathleen after the accident, which indicate that Kathleen was
driving the truck with the safe attached to the trailer hitch by way of the rope. While the truck
was dragging the safe out of the garage into the driveway, the safe hit uneven concrete, causing it

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to flip over and land on plaintiff’s leg. Plaintiff and Kathleen, however, testified at their
depositions that the safe was already partially loaded into the bed of the truck, and that when the
truck hit the uneven portion of the driveway, the safe fell out of the truck and onto plaintiff’s leg.

Under either scenario, it is undisputed that the truck was being driven by Kathleen at the
time the safe fell and landed on plaintiff’s leg. It is also undisputed that following the injury,
plaintiff underwent multiple surgeries before his left leg was eventually amputated below the
knee.

On March 2, 2012, plaintiff sought personal protection insurance (PIP) benefits from
defendant. In seeking the benefits, plaintiff claimed that the injury occurred when Kathleen
accelerated the truck over the pavement, causing the safe to fall out of the bed of the truck.
Plaintiff also claimed in the letter that, even if the rope had broken before the truck had been
moved, he would still be entitled to benefits under MCL 500.3106(1)(b).1 On April 4, 2012,
defendant informed plaintiff’s attorney that it disagreed that plaintiff would be entitled to PIP
benefits if the fall occurred during “preparation for loading and before loading itself.” Defendant
also noted factual discrepancies regarding what occurred, indicated that absent under oath
examination the investigation could not be advanced, and stated that PIP benefits would not be
provided as plaintiff had “not provide[d] reasonable proof of coverage of the claim.”

Plaintiff initiated the instant lawsuit on October 9, 2012. Following discovery and other
matters, plaintiff filed his motion for summary disposition pursuant to MCR 2.116(C)(10) on
September 5, 2013. Plaintiff argued that he was entitled to coverage under MCL 500.3105
because, even under defendant’s version of the facts, plaintiff was attempting to tow the safe
with the moving truck. Using a truck to transport heavy objects is a normal use of a truck.
Further, the moving truck was not merely the location of the injury. Rather, the injury was
directly related to the use of the truck as a mode of transportation.

Defendant filed its response on September 16, 2013, arguing that plaintiff’s injuries did
not arise out of the transportational function of a motor vehicle because the truck was either
being used as an immobile anchor point for the rope or was pulling the skidding safe. Defendant
claimed that the truck was being used as a tool and was not being driven on a public roadway.
Defendant also argued that if the facts of the loss were as stated by Kathleen, then plaintiff made
misrepresentations and the policy was void. Accordingly, defendant argued, there was a genuine
issue of material fact and summary disposition was not warranted.

1
MCL 500.3106(1)(b) provides:
Except as provided in subsection (2), 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.

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 Without holding oral argument, the trial court granted plaintiff’s motion for summary
disposition, in part, on September 30, 2013. The trial court ruled that plaintiff was entitled to
PIP benefits under either plaintiff’s version or defendant’s version of events:

As noted, plaintiff has attributed the accident to the process of loading the
safe into his truck. He then planned to drive the safe to a buyer. Under these
circumstances, plaintiff would be entitled to PIP benefits. MCL 500.3106(1)(b).

Defendant Kathleen Walega posted a Facebook entry on November 5,
2011 describing the accident as happening while the safe was being moved from
the garage. Under this version, plaintiff had tied a rope around the safe and
defendant Kathleen Walega was using the truck to pull the safe from the garage so
it could be loaded into the truck. As the safe dragged across the driveway, it hit a
raised portion of the pavement and tipped over onto plaintiff’s foot. Under these
circumstances, plaintiff would also be entitled to PIP benefits because the truck
was being used (i.e., was not parked) to move the safe—even if for a short
distance—and the safe was connected to the truck. McKenzie v Auto Club Ins
Ass’n, 458 Mich 214; 580 NW2d 424 (1998) (coverage applicable if use of
vehicle is closely related to its transportational function at the time of injury); see
also Block v Citizens Ins Co of America, 111 Mich App 106; 314 NW2d 536
(1981) (no coverage when accident occurs while carrying items to vehicle and
there is no actual connection to vehicle).

The trial court went on to state, however, that defendant’s fraud claim, based on allegations that
Kathleen changed her story to support plaintiff’s version of events, was a defense that had to be
decided by the jury. The trial court also concluded that plaintiff’s asserted damages were subject
to reasonable dispute.

On October 22, 2013, defendant sought reconsideration and clarification of the trial
court’s order. Defendant argued, inter alia, that the trial court did not address the possible use of
the motor vehicle as an anchor point and requested clarification based on the trial court’s
apparently contradictory ruling that plaintiff was entitled to PIP benefits, but that defendant was
entitled to present its fraud defense to the jury.

On November 4, 2013, the trial court denied the motion for reconsideration, noting that
defendant’s argument was the same as that made in its response to summary disposition and
further stating:

[D]efendant Farm Bureau fails to cite any authority for the proposition that an
item must be moved some minimum distance to satisfy the transportational
function test for PIP coverage. Moreover, coverage has been afforded for
dragging items behind a vehicle. See Smith v Community Service Ins Co, 114
Mich App 431; 319 NW2d 358 (1982) (plaintiff injured while riding an inner tube
being towed by a motor vehicle entitled to coverage).

As previously noted, the evidence only suggests the safe either fell from
the back of a moving truck or tipped over while being dragged by a moving truck.

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 Hence, there was no need to discuss the possible use of the truck as a stationary
anchor point or tool.

Finally, the trial court clarified its earlier opinion regarding the fraud defense:

The subject policy voids coverage if there is an intentionally concealed or
misrepresented material fact or circumstance, fraudulent conduct or false
statement relating to a loss. Family Auto Policy, Part V, § C.[2] Thus, defendant
Farm Bureau could only void coverage if a material fact or statement relating to
plaintiff’s loss was misrepresented or falsely made. However, as both factual
scenarios result in coverage for plaintiff’s loss, any misrepresented or false fact or
statement was not material to plaintiff’s loss. Consequently, defendant Farm
Bureau’s fraud defense does not preclude summary disposition on the issue of
plaintiff’s entitlement to PIP coverage and should not have been noted as
requiring submission to the jury for resolution. [Footnote added.]

On May 2, 2014, the parties stipulated to entry of judgment in favor of plaintiff, subject
to defendant reserving its right to appeal the trial court’s ruling on the summary disposition
motion and motion for reconsideration. On May 12, 2014, defendant filed the instant appeal.3

On appeal, defendant argues that the trial court erred in concluding that plaintiff was
using his truck as a motor vehicle at the time the injury occurred. We disagree.

We review de novo the trial court’s ruling on a motion for summary disposition. Healing
Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174
(2007).

“A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint.” In evaluating such a motion, a court considers the entire record in the
light most favorable to the party opposing the motion, including affidavits,
pleadings, depositions, admissions, and other evidence submitted by the parties.

2
Part V, § C of the relevant policy provides:
The entire policy will be void if, whether before or after a loss, you, any family
member, or any insured under this policy has:
1. intentionally concealed or misrepresented any material fact or
circumstance;
2. engaged in fraudulent conduct; or
3. made false statements;
relating to this insurance or to a loss to which this insurance applies.
3
Before the judgment, defendant filed an application for leave to appeal on November 25, 2013.
The leave application was dismissed pursuant to defendant’s motion to withdraw the appeal. See
Walega v Walega, unpublished order of the Court of Appeals, entered May 20, 2014 (Docket No.
319233).

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 Where the proffered evidence fails to establish a genuine issue regarding any
material fact, the moving party is entitled to judgment as a matter of law. [Corley
v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004) (citations
omitted)].

We also review de novo questions of law, including statutory interpretation. Gorman v
American Honda Motor Co, Inc, 302 Mich App 113, 116; 839 NW2d 223 (2013).

The primary goal of statutory interpretation is to “ascertain the legislative
intent that may reasonably be inferred from the statutory language.” “The first
step in that determination is to review the language of the statute itself.” Unless
statutorily defined, every word or phrase of a statute should be accorded its plain
and ordinary meaning, taking into account the context in which the words are
used. We may consult dictionary definitions to give words their common and
ordinary meaning. When given their common and ordinary meaning, “[t]he
words of a statute provide ‘the most reliable evidence of its intent. . . . ’ ” [Krohn
v Home-Owners Ins Co, 490 Mich 145, 156-157; 802 NW2d 281 (2011) (citations
omitted).]

In addition, as noted in Churchman v Rickerson, 240 Mich App 223, 228-229; 611 NW2d 333
(2000):

The no-fault act generally is to be construed liberally because it is
remedial in nature. Putkamer v Transamerica Ins Corp of America, 454 Mich
626, 631; 563 NW2d 683 (1997). However, this rule of construction is intended
to apply to the payment of benefits to injured parties, who were intended to
benefit from the adoption of no-fault legislation. Id. Where appropriate, the act
should be broadly construed to effectuate coverage. McMullen v Motors Ins
Corp, 203 Mich App 102, 107; 512 NW2d 38 (1993).

MCL 500.3105(1) provides:

Under personal protection insurance 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, subject to the provisions of this chapter.

Analyzing the use of the term “as a motor vehicle” in MCL 500.3105(1), our Supreme Court
stated in McKenzie, 458 Mich at 218-219:

As a matter of English syntax, the phrase, “use of a motor vehicle ‘as a
motor vehicle’” would appear to invite contrasts with situations in which a motor
vehicle is not used “as a motor vehicle.” This is simply to say that the modifier
“as a motor vehicle” assumes the existence of other possible uses and requires
distinguishing use “as a motor vehicle” from any other uses. While it is easily
understood from our experiences that most often a vehicle is used “as a motor
vehicle,” i.e., to get from one place to another, it is also clear from the phrase that
the Legislature wanted to except those occasions, rare as they may be, when a
motor vehicle is used for other purposes, e.g., as a housing facility of sorts, as an
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 advertising display (such as at a car dealership), as a foundation for construction
equipment, as a mobile public library, or perhaps even when a car is on display in
a museum. On those occasions, the use of the motor vehicle would not be “as a
motor vehicle,” but as a housing facility, advertising display, construction
equipment base, public library, or museum display, as it were. It seems then that
when we are applying the statute, the phrase “as a motor vehicle” invites us to
determine if the vehicle is being used for transportational purposes.

The McKenzie Court went on to state that, under the Motor Vehicle Code, “ ‘[v]ehicle’ means
every device in, upon, or by which any person or property is or may be transported or drawn
upon a highway . . . .” Id. at 219, quoting MCL 257.79. In addition to the statutory definition of
vehicle, the McKenzie Court also noted that “the dictionary definition of ‘vehicle’ is ‘any device
or contrivance for carrying or conveying persons or objects, esp. over land or in space . . . .’ ”
McKenzie, 458 Mich at 219, quoting Webster’s New World Dictionary, Third College Edition.
Based on these definitions, the Court held “that the clear meaning of this part of the no-fault act
is that the Legislature intended coverage of injuries resulting from the use of motor vehicles
when closely related to their transportational function and only when engaged in that function.”
McKenzie, 458 Mich at 220. Applying the transportational function test, the McKenzie Court
held that the insured in that case was not entitled to PIP benefits for injuries that resulted while
using the vehicle as sleeping accommodations as such use was “too far removed from the
transportational function to constitute use of the camper/trailer ‘as a motor vehicle’ at the time of
the injury.” Id. at 226.

In the instant case, viewing the facts in a light most favorable to defendant, it is
undisputed that the insured truck was being driven for purposes of moving the safe. As noted in
McKenzie, 458 Mich at 221, “moving motor vehicles are quite obviously engaged in a
transportational function.” While defendant attempts to limit the importance of this statement, it
is clear that in the case at bar, the truck was moving for the purpose of transporting or conveying
the safe from one location to another when the injury occurred. Thus, “the requisite nexus
between the injury and transportation function of the motor vehicle” is present. Id. at 226.

Defendant relies on Morosini v Citizens Ins Co of America, 461 Mich 303, 310; 602
NW2d 828 (1999), which states that “[c]overage is not mandated by the fact that the injury
occurred within a moving vehicle . . . ,” noting that “[i]ncidental involvement of a motor vehicle
does not give rise to coverage . . . .” However, defendant fails to note that Morosini made such
statements based on the holdings of Thornton, 425 Mich 643, Marzonie v ACIA, 441 Mich 522;
495 NW2d 788 (1992), and Bourne v Farmers Ins Exchange, 449 Mich 193; 534 NW2d 491
(1995). Each of those cases dealt with situations where the driver of the vehicle was injured after
being assaulted by third parties. None of them were injured as a result of a motor vehicle
accident. Morosini, 461 Mich at 307-309, citing Thornton, 425 Mich at 660, Marzonie, 441
Mich at 534, and Bourne, 449 Mich at 203. Indeed, Morosini itself involved a claim for PIP
benefits not as a result of injuries that occurred in a car accident, but rather as a result of injuries
incurred when the plaintiff was assaulted by the driver who rear-ended him. Morosini, 461 Mich

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at 305. As such, it is clear that Morosini and the cases relied on therein (Thornton, Marzonie,
and Bourne) are clearly distinguishable from the instant case.4

Defendant also attempts to argue that this case is akin to Gooden v Transamerica Ins
Corp, 166 Mich App 793; 420 NW2d 877 (1988). However, in that case, the plaintiff was using
his parked truck to “ensure greater stability and to extend the ladder’s reach” as the plaintiff was
“chipping ice off the roof of a friend’s home.” Id. at 795. In other words, the plaintiff was
simply using the truck to stabilize and extend the ladder. Id. at 805-806. He was not using the
truck to transport anything.

Defendant also relies on Winter v Automobile Club of Michigan, 433 Mich 446; 446
NW2d 132 (1989). However, that case dealt with exceptions to the parked vehicle exclusion, id.
at 455, and, as noted in McKenzie, was also consistent with the Court’s approach in McKenzie, as
the “injury arose out of the use of a motor vehicle as a foundation for construction equipment and
was not closely associated with the transportational function.” McKenzie, 458 Mich at 221.5

We agree with plaintiff that this case is similar to Smith v Community Service Ins Co, 114
Mich App 431; 319 NW2d 358 (1982), a case decided before November 1, 1990. The Smith
plaintiff “was injured while riding on an inner-tube which was being towed by the insured
vehicle.” Id. at 432. In finding that the plaintiff was entitled to PIP benefits, this Court stated:

[T]he motor vehicle itself was the instrumentality of the plaintiff’s injury.
At the time of the accident the vehicle was being driven down a public roadway
which is a use which is certainly consistent with its inherent nature and in
accordance with its intended purpose. It was being used, therefore, as a motor
vehicle and as a motor vehicle would normally be used. The fact that it may not
have been contemplated, as the defendant argues, that the operator of a motor
vehicle would pull someone in an inner-tube over a snow-covered road, or the fact
that it may have been negligent or even illegal to do so, is no defense to coverage
under the provisions of the no-fault act. The act is certainly intended to
compensate for injuries sustained as the direct result of negligent or unexpected
use of a motor vehicle so long as the vehicle is being used “as a motor vehicle.”

4
In McKenzie, the Court stated that the analysis used in Thornton, focusing on “whether the
alleged injury was causally related to the ‘vehicular use,’ ‘functional character,’ or ‘functional
use’ of a motor vehicle,” supported the transportational function approach. McKenzie, 458 Mich
at 222-223, quoting Thornton, 425 Mich at 660-661. The McKenzie Court stated that, its
approach, “focusing on the transportational function, makes the same distinction and provides a
more specific definition for these terms.” McKenzie, 458 Mich at 223.
5
Defendant further attempts to rely on several unpublished opinions to support its position that
the truck in this case was not being used “as a motor vehicle” at the time it was being used to
move the safe. In addition to being not precedentially binding on this Court, see MCR
7.215(C)(1), these cases are distinguishable from the instant case.

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 To be entitled to PIP benefits a claimant must establish a causal
connection, which is more than fortuitous, incidental or but for, between the use
of the motor vehicle and the injury sustained. DAIIE v Higginbotham, [95 Mich
App 213; 290 NW2d 414 (1980).] We find that such a causal connection is
established under the facts of this case. An injury which directly results from the
force of a motor vehicle which is being driven down a roadway in a normal
manner is an injury which arises “out of the * * * operation * * * or use of a
motor vehicle as a motor vehicle * * *.” [Smith, 114 Mich App at 434-435.]

Similarly, in this case, plaintiff’s injury resulted from the force of the motor vehicle
hitting uneven concrete causing the safe to fall over and onto plaintiff’s leg. Whether the safe
was inside the bed of the truck or being pulled by a rope from the back of the truck at the time
the safe fell over, the truck “was the instrumentality of plaintiff’s injury.” Smith, 114 Mich App
at 434. Driving a truck to transport something is “consistent with its inherent nature and in
accordance with its intended purpose.” Id. Although the particular method used to transport the
safe, i.e., dragging, may not have been contemplated, the use of a truck to transport something is
a normal use. Thus, the injury occurred while the truck was being used as a motor vehicle. Id.6

Finally, in Drake v Citizens Ins Co, 270 Mich App 22, 24; 715 NW2d 387 (2006), the
plaintiff was injured while “assisting [the delivery truck driver] in unclogging the truck’s auger
system,” as the driver attempted to unload animal feed. In holding that the plaintiff was entitled
to PIP benefits, this Court specifically stated that the situation in Drake was “unlike those
circumstances identified in McKenzie as rare instances ‘when a motor vehicle is used for other
purposes.’ ” Drake, 270 Mich App at 26, quoting McKenzie, 458 Mich at 219. This Court noted
that the vehicle involved in Drake was “a delivery truck, and it was being used as such when the
injury occurred.” Drake, 270 Mich at 26. Accordingly, this Court held that the plaintiff’s injury
was “closely related to the motor vehicle’s transportational function and therefore arose out of
the operation, ownership, maintenance, or use of a motor vehicle ‘as a motor vehicle.’” Id.,
citing McKenzie, 458 Mich at 220.

In the present case, plaintiff was using a truck to move or transport a very heavy safe, at a
minimum, from his garage to his driveway. It is normal and foreseeable to use a truck, attached
with a trailer hitch, to move heavy objects. Accordingly, plaintiff’s injury was closely related to
the transportational function of the vehicle and, therefore, arose out of the operation, ownership,
maintenance, or use of a motor vehicle “as a motor vehicle.” For the above reasons, we hold that
the trial court did not err when it held that plaintiff was entitled to PIP benefits.

6
Defendant’s attempt to distinguish Smith on the basis that the truck in Smith was being driven
down a public roadway, as opposed to in the driveway, is unpersuasive. Defendant has not
provided any case law, and we have not located any, that suggests that an injury that occurred in
a driveway as opposed to a roadway is any less cognizable under the no-fault act. Rather, “as
§ 3106 indicates, a vehicle need not be moving at the time of an injury to arise out of the use of a
motor vehicle as a motor vehicle, i.e., out of its transportational function.” McKenzie, 458 Mich
at 219 n 6.

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Affirmed. As the prevailing party, plaintiff may tax costs pursuant to MCR 7.219.

/s/ Kurtis T. Wilder
/s/ Michael J. Talbot
/s/ Karen M. Fort Hood

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