Jones v. Tronex Chemical Corp.

"Cynar, J.

(dissenting). I agree with the trial court that there was a sufficient causal relationship between plaintiff’s use of the vehicle and his injuries. This case is distinguishable from the cases in which benefits were denied because the plaintiff’s presence in the vehicle at the time of the injury was a mere fortuity. See, e.g., Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213; 290 NW2d 414 (1980) (the insured’s husband forced her to the curb, trapped her in her car, and shot her several times with a revolver), Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975) (passengers of the insured’s vehicle assaulted a pedestrian), O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979) (the insured was shot by an assailant while she *194was sitting in her vehicle). In these cases, the injury could have resulted whether the plaintiff was using the vehicle or not. The vehicle was more than merely the site of the injury. Under the facts in this case, turning the ignition key must be identified with the normal manner of starting a vehicle. There was a direct causal relationship between the use of the motor vehicle and plaintiff’s injuries.” Gajewski, supra, pp 62-63. See, also, Smith v Community Service Ins Co, 114 Mich App 431; 319 NW2d 358 (1982).

Just as an ample causal nexus between the use of a vehicle and an injury was supplied in Gajewski by the turning of an ignition key, it is extant here in the splashing of water by Detroit’s bus. That the actual character of the resulting injury was bizarre or unexpected is not dispositive. Pledge Jones’s injury resulted directly from the force of the bus as it was being operated in a normal fashion as a motor vehicle. The fact that the bus itself did not strike him does not bar his claim. Bromley v Citizens Ins Co of America, 113 Mich App 131, 135; 317 NW2d 318 (1982). Summary judgment in favor of plaintiffs and against Detroit is therefore affirmed.

We now address the propriety of summary judgment in favor of Carriers, insurer of the tanker trailer. This question involves the parked vehicle provision of the no-fault act, MCL 500.3106(l)(b); MSA 24.13106(l)(b), which provides:

"Sec. 3106. (1) 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:
"(b) * * * the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or *195used or property being lifted onto or lowered from the vehicle in the loading or unloading process.”

All parties agree that the reference to loading or unloading is independent of the reference to contact with equipment permanently affixed to the motor vehicle. See Arnold v Auto-Owners Ins Co, 84 Mich App 75, 80; 269 NW2d 311 (1978), lv den 405 Mich 804 (1979). Carriers attempts to erect three lines of defense for its position that summary judgment was appropriately granted in its favor.

The first starts with the valid point that, in order to make a claim under this section, plaintiffs would have to show not only that the injury occurred somehow during the loading or unloading process, but also that the tanker was at the time a parked motor vehicle operated, maintained or used as a motor vehicle. Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 314-315; 282 NW2d 301 (1979) , lv den 407 Mich 895 (1979); Dowdy v Motorland Ins Co, 97 Mich App 242, 250; 293 NW2d 782 (1980) . Carriers insists that the tanker was clearly not a motor vehicle being used as a motor vehicle at the time since it was instead being used as chemical mixing vat.

The tanker certainly was a motor vehicle since it was at least a trailer on the truck and was designed for operation on a public highway by other than muscular power. MCL 500.3101(2)(c); MSA 24.13101(2)(c); Kelly v Inter-City Truck Lines, Inc, 121 Mich App 208, 209-210; 328 NW2d 406 (1982). In Kelly, the defendant argued that a detached semi-trailer used for storage loses its status as a motor vehicle. The Court admitted it could conceive of a situation in which a trailer had been so altered it could no longer be described as "designed for operation on a public highway”, but *196concluded that where the trailer had just been detached from the truck that day the question was not even close. The semi-trailer was still a motor vehicle. Kelly, supra, p 210.

This case is substantially identical to Kelly on the question of whether the tanker was a motor vehicle. Not only had the tanker truck just driven up to the Tronex plant before it was hooked up, it drove away again just after the spill. Clearly it was still "designed for operation on a public highway” and thus was a motor vehicle under Kelly.

Carriers’ next line of defense focuses on the nature of the hook-up to Tronex. Carriers asserts that the tanker never was subjected to a loading or unloading process since it was actually only mixing chemicals for Tronex rather than unloading them to Tronex. However, because the mixing process involved an exchange of chemicals between the tanker and the Tronex plant, we believe that both a loading and an unloading of materials occurred.

Carriers finally contends that the loading and unloading process was concluded long before Pledge Jones was injured. The truck had been disconnected from the hose, the valve had been shut off, and the truck driven away. Tronex employees had then begun to clean up the spill and were in the process of clean-up when Jones was splashed in the eye.

Carriers’ position is supported by the cases. In Dowdy, supra, the plaintiff was participating in the delivery of bundles of steel rods. Other trucks had already arrived at the delivery site, unloaded their cargoes of steel, and piled them into pyramids. Plaintiff drove his truckload up to a spot next to one of the pyramids. As he was untrying his load in preparation for delivery, one of the *197bundles that had already been delivered rolled off the pile and pinned the plaintiff’s leg to his truck, causing serious injury. The Court held that plaintiff’s employer’s no-fault carrier was not liable since the steel that had hurt the plaintiff had already been completely unloaded and was not in the process of being unloaded when the injury occurred.

We view Dowdy as controlling under the facts of this case. There is no dispute that the insured vehicle had completed its operation and left the scene prior to Pledge Jones’s injury. The injury therefore was not "a direct result of physical contact with * * * property being lifted onto or lowered from the vehicle in the loading or unloading process”. For this reason summary judgment was properly granted to defendant Carriers Insurance Company.

Affirmed.