McKenzie v. Auto Club Insurance Ass'n

Cavanagh, J.

(dissenting). This case calls on us to determine whether the plaintiff is entitled to personal protection insurance benefits under the no-fault act1 for injuries resulting from a nonfatal asphyxiation that occurred while he was sleeping in a camper/ trailer attached to his pickup truck. Because I find that, under the tests enunciated in our past decisions, plaintiff meets the requirements of the act and is entitled to benefits, I dissent from the majority’s holding. It appears that the majority’s effort today adds a transportational use limitation to the statute where the Legislature has inserted no such term. Accordingly, I would affirm the judgment of the Court of Appeals, finding the plaintiff entitled to summary disposition in his favor on his claim for no-fault benefits.

i

“[W]here there is no dispute about the facts, the issue whether an injury arose out of the use of a vehicle is a legal issue for a court to decide and not a fac*228tual one for a jury.” Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 630; 563 NW2d 683 (1997). Here the facts are not in dispute, and, on appeal, defendant claims error solely on the purported lack of use of the vehicle “as a motor vehicle.”2 We are, therefore, presented only with the need to determine whether the motor vehicle here was used “as a motor vehicle,” as required by subsection 3105(1) as a precursor to coverage.

This is not a new question, either here or in the past decisions of our Court of Appeals. Indeed, the trial court predicated its ruling on a belief that Koole v Michigan Mut Ins Co, 126 Mich App 483; 337 NW2d 369 (1983), was controlling. This case, however, does mark the first time this Court has addressed the question in the context of a camper/trailer. Given that the defendant concedes that the camper/trailer meets the statutory definition of a motor vehicle, we should turn to our past decisions to provide a framework to analyze the question whether a motor vehicle was being used “as a motor vehicle” at the time of the injury.

An analysis of our past decisions reveals that there are two distinct steps required to determine if a motor vehicle at the time of injury, was being used as a motor vehicle. The first step arises initially from Bialochowski v Cross Concrete Pumping Co, 428 Mich 219; 407 NW2d 355 (1987).

*229In Bialochowski, we addressed a situation where a pump attached to a parked concrete truck exploded, injuring the plaintiff. Focusing on the remedial nature of the no-fault act, and the balancing undertaken by the Legislature in enacting the statute, we found that it was clear that use “as a motor vehicle” “is not limited to normal vehicular movement on a highway.”3 In that case, we also determined that when a multipurpose vehicle was used for one of its intended purposes it was used “as a motor vehicle.”4 This establishes the parameters of the first step in my analysis.5

*230While this Court has not yet spoken with respect to a situation exactly on point with this case, such occurrences are hardly new in Michigan. Our Court of Appeals has addressed this area in three decisions. One, Engwis v Michigan Mut Ins Co, 181 Mich App 16; 448 NW2d 731 (1989), involved an identical situation, an asphyxiation (this time fatal) from a leaking propane tank. The Court of Appeals found summary disposition for the no-fault insurer to be inappropriate.

In the other two cases, malfunctioning camper/ trailer appliances (a heater and a stove) resulted in explosions. Koole, supra, was discussed previously in the margin and involved the ignition of gas vapors from a heater. The parties have also brought to our attention Krolikowski v Auto Club Ins Ass’n, unpublished decision of the Court of Appeals, issued March 8, 1993 (Docket Nos. 133558, 136457), which concerned a malfunctioning stove.6 In both cases, the Court of Appeals held that no-fault coverage applied, and in both cases this Court denied leave to appeal.

For at least fifteen years, the published appellate decisions of this state have pointed clearly toward the resolution I would reach in this case. Besides comporting with my analysis, this trend points toward another consideration. Because no-fault benefits have clearly applied to situations involving camper/trailers, such as the one before us, I am confident that, at *231least since Koole, insurers have been on notice that they were liable for coverage in these instances. Accordingly, insurers have been at least capable of determining their rates for insuring such vehicles in light of such liability. To the extent that insurers could have, and in fact may have, charged for insuring such a risk, policy considerations do not support the windfall that acceptance of the defendant’s arguments would entail.

In view of the clear requirements of Bialochowski, and in light of the policy considerations discussed above, our task should not be difficult. I would find the camper/trailer to have been used for one of its intended purposes, sheltering sleeping campers. Hence, under Bialochowski, I would find that the camper/trailer was used “as a motor vehicle.”

n

My analysis, however, is not yet complete. Our past decisions indicate that, in addition to a determination under subsection 3105(1) of usage of a motor vehicle “as a motor vehicle,” I must also determine whether there was a sufficient causal connection between this usage as a motor vehicle and the plaintiff’s injury. Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).

While Thornton is often cited as having discussed the use of a motor vehicle “as a motor vehicle,” as it has been by the parties here, a close analysis of our decision reveals that we clearly decided that case on the basis of causation. As we have previously noted, “[i]n Thornton there was no question but that the taxi was being used ‘as a motor vehicle.’ However, this Court found a lack of causal connection between that *232use and the plaintiff’s injury.”7 Rather than involving a subsection 3105(1) question, this second step of my inquiry concerns causation. Where causation is lacking, coverage will not be found, despite usage of a motor vehicle “as a motor vehicle.”8 The important distinction here, which must be emphasized given the confusion evidenced by some of the arguments presented, is that our decision in Thornton was one of causation, not one concerning the presence or use of a motor vehicle “as a motor vehicle.”

Thornton concerned the availability of no-fault benefits when a taxi driver was shot during an armed robbery of his cab. We found benefits to be unavailable, owing to a strained relationship with the driver’s use of the motor vehicle as a motor vehicle. As we noted, “the relation of the gunshot wound to the functional use of a motor vehicle as a motor vehicle was at most merely ‘but for,’ incidental, and fortuitous.”9

In Thornton, we found that the robber’s bullet was too far removed from the use of a motor vehicle to allow recovery of no-fault benefits. Indeed, the fact that Mr. Thornton was operating a vehicle at that time had little to do with his injury. While we agreed that there might be an incidental or fortuitous connection (i.e., operating a taxicab might make one somewhat more likely to be the victim of an armed robbery), the vehicle was merely the locale of his injury. What injured Mr. Thornton had no connection to his vehicle. Rather, a gunman chose to shoot him, and the fact that Mr. Thornton happened to be driving his *233vehicle at the time was an insufficient basis for allowing benefits.10

Conversely, the plaintiff here was not injured by some outside force or actor. Rather, it was the malfunction of the vehicle itself. The vehicle was not merely the locale of the injury, but rather was an integral part of it. Therefore, the causal connection was not the “tenuous” one of Thornton, but rather one of an integral nature, and, hence, coverage should obtain.

m

The majority, of course, seems to believe that Bialochowski “eviscerates” the distinction of § 3105 regarding use as a motor vehicle, and, furthermore, that apparently Winter v Automobile Club of Michigan, 433 Mich 446; 446 NW2d 132 (1989), should be read to eviscerate Bialochowski. As discussed in note 5, the actual issue with which Winter was concerned is conceded herein. While it is fairly clear that Winter, authored by a dissenter in Bialochowski, went to great lengths to attack Bialochowski, the actual holding of the case was very narrow. To the extent that the majority reads Winter’s rather expansive dicta to apply to a case where the actual Winter issue is conceded, I cannot agree. 11

*234As to the “evisceration” of the distinction of § 3105, this section, of course, speaks of use of a motor vehicle “as a motor vehicle.” While this provision has certainly led to a fair amount of controversy, I cannot accept this as a rationale to undertake what the majority purports to do: replace “as a motor vehicle” with “for a transportational function.” As my brethren in the majority have frequently pointed out in other contexts, and as we should all agree, where the Legislature has used language that is less than clear, we may be called on to interpret it, but we have no call, or right, to merely replace the Legislature’s language with language of our own choosing. I turn to our past decisions to apply a consistent approach to an interpretation of this difficult section. While I tend to agree that the Legislature needs to clarify this section, rather than awaiting such a change in the statute, it appears the majority simply elects to make it.12

*235IV

A review of our past decisions indicates that an analysis under subsection 3105(1) to determine whether an insurer is liable for coverage on the basis of the use of a motor vehicle “as a motor vehicle” involves two discrete steps. First, we must determine whether the vehicle was being used for its intended purpose or, in the case of a multipurpose vehicle, for one of its intended purposes. Second, we must determine whether this usage had a sufficient causal relationship to the injury to support an award of benefits. For the reasons stated above, I find the answers to both questions in this case to be affirmative.

This case is clearly answered under our existing case law, and I would decline to undertake a realignment of our precedent to find otherwise. I would affirm the result of the Court of Appeals, finding the plaintiff entitled to summary disposition on his claim for no-fault benefits.

Mallett, C.J., and Kelly, J., concurred with Cavanagh, J.

MCL 500.3101 et seq.; MSA 24.13101 et seq.

Defendant concedes that the camper/trailer was a motor vehicle as defined in MCL 500.3101(2)(e); MSA 24.13101(2)(e). As will be discussed further below, defendant also concedes that the requirement of MCL 500.3106; MSA 24.13106, which concerns limitations on the applicability of coverage to parked vehicles, is met, because the vehicle was occupied at the time of injury, satisfying MCL 500.3106(l)(c); MSA 24.13106(l)(c).

Id. at 228. As we noted then, the Court has previously addressed the purposes of the no-fault act:

The Michigan No-Fault Insurance Act, which became law on October 1, 1973, was offered as an innovative social and legal response to the long payment delays, inequitable payment structure, and high legal costs inherent in the tort (or “fault”) liability system. The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses. [Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978).]

We also noted that in exchange for this system assuring “prompt” reparation, an injured party’s right to recover from a negligent owner or operator of a vehicle faced new limits. See MCL 500.3135; MSA 24.13135. Bialochowski at 228.

Bialochowski at 228.

In Winter v Automobile Club of Michigan, 433 Mich 446; 446 NW2d 132 (1989), this Court held that, when dealing with parked vehicles, in addition to making a determination that a vehicle is being used “as a motor vehicle,” the Court must determine whether a criterion under subsection 3106(1) is met. Put differently, a determination that a motor vehicle is being used as a motor vehicle, and hence coverage is “otherwise available under § 3105(1) is qualified by the provisions of § 3106(1).” Id. at 457.

Subsection 3106(1) states that accidental bodily injury does not arise out of the use of a parked motor vehicle as a motor vehicle unless one of several specific statutory criteria is met. Subsection 3105(1) is where the general requirement of use of a motor vehicle “as a motor vehicle” arises. Under Winter, we must determine whether the requirements of both sections are met to reach a final conclusion. Here, however, because the defendant has conceded to the presence of a statutory criterion (occupied *230vehicle) under subsection 3106(1), I would limit my analysis to subsection 3105, and, given the concession, have no need to engage in an analysis under Winter.

I mention Krolikowski, an unpublished case, not for its precedential value, but rather to note that the instant case is not the first time this Court has been asked to review this sort of situation.

Winter, n 5 supra at 455, n 7 (citation omitted).

Thornton at 660-661.

Id. at 661.

Note, again, that there was no question that the vehicle in Thornton was being used “as a motor vehicle.” If Mr. Thornton’s paralysis resulted not from a bullet but from a crash or from irvjuring his neck upon striking a pothole, there is no doubt that there would have been coverage.

The majority undertakes a considerable effort to suggest that Bialochowski cannot be read to support my conclusion herein. In my view, this effort fails, for several reasons.

First, in regard to the idea that Winter somehow “limited” Bialochowski on issues totally unrelated to the issues litigated therein, I note that the language of Winter at 455, as quoted by the majority (ante at 224-225), *234agrees, albeit in the most cumbersome terms, that vehicular movement is not required for usage of a motor vehicle “as a motor vehicle” to be found. Certainly, that quotation, like the statute itself, contains no trace of a limitation to those uses that involve a “transportational function,” and implicitly even may be read as, at least in part, rejecting same by not requiring vehicular movement.

Next, regarding the purported damage to Thornton done by Bialochowski, the majority mixes apples and oranges. In order to reach this view, the majority first (ante at 222) forces a transportational function analysis into that case, yet another where it was noticeably absent (and, of course, where the case was actually decided on causation grounds). The point of Thornton had little to do with transportational functions in the use of motor vehicles (indeed, Mr. Thornton was driving his vehicle, and it was arguably involved in a far more transportational function than the vehicles in any of the other cases cited herein). Rather, Thornton dealt with a relational requirement between a claimed injury and a transportational function. Because Mr. Thornton’s injury lacked a significant relationship to his operation of the vehicle, he could not prevail.

In fact, the majority fails to admit the state of the law that it is today upsetting. At best, the Court might say that today it finally corrects a long-neglected area of law. At worst, the Court simply engages in result-*235oriented judicial activism and encourages litigants to steadfastly insist on litigation to enforce matters of settled law, and to continually resist settlement of claims and pursue review before this Court, regardless of the failure of past attempts, in the hope that a majority of the Court will simply favor their view this time. As one of my colleagues has noted, judicial activism can occur toward any particular result, and the Court’s decision today, I fear, encourages litigants to seek out such activism and find hope in the prospect of it occurring in their favor. I decline to join such action.