Thompson v. TNT Overland Express

Griffin, J.

(dissenting). I respectfully dissent. I would hold that plaintiff was "doing mechanical work” on the parked vehicle at the time of his fall. Accordingly, I would hold that plaintiff is barred by operation of MCL 500.3106(2); MSA 24.13106(2) from collecting no-fault benefits for his injuries.1

Section 3106(2) was intended to eliminate duplicative recovery for work-related injuries except where actual driving or operation of a motor vehicle is involved. Stanley v State Automobile Mutual Ins Co, 160 Mich App 434, 439; 408 NW2d 467 (1987); Bell v F J Boutell Driveaway Co, 141 Mich App 802, 809-811; 369 NW2d 231 (1985). Therefore, the phrase "doing mechanical work” has been interpreted broadly so as to give effect to this *345legislative intent. Dowling v Auto Club Casualty Ins Co, 147 Mich App 482, 485-486; 383 NW2d 233 (1985).

The statutory phrase "doing mechanical work on a vehicle” includes repairing defects, performing preventive maintenance, or making adjustments to alter operating characteristics. MacDonald v Michigan Mutual Ins Co, 155 Mich App 650, 656; 400 NW2d 305 (1986). The focus should not be on the employee’s job title or classification but rather on the type of activity engaged in at the time of the injury. See, e.g., Stanley, supra; Cobb v Liberty Mutual Ins Co, 164 Mich App 66; 416 NW2d 328 (1987).

In the present case, plaintiff was injured while inspecting his vehicle to determine the source of an air leak. Plaintiff slipped and fell while reaching for the air hose that was improperly connected. As noted by the majority, a properly connected hose was "absolutely necessary” for the tractor-trailer’s operation. Under these circumstances, I fail to see how plaintiff was not engaged in repairing a defect — conduct that qualifies as mechanical work under § 3106(2).

In reaching a contrary result, the majority concludes that plaintiff was merely engaged in an "activity routinely performed by the driver to make the tractor-trailer operational.” Ante at 344. In this regard, I agree with the analysis set forth in MacDonald, supra. There, the plaintiff was injured while attempting to adjust the position of a trailer box on a tractor-trailer rig. In holding that such action constituted "doing mechanical work,” we rejected as inconsistent with legislative intent any distinction between merely altering the operational characteristics of a vehicle and correcting specific operational defects:

*346It could be argued that since plaintiff was not repairing a defect but was only shifting the trailer’s axle from one normal position to another to alter its operating characteristics, plaintiff was not doing mechanical work. However, if plaintiff’s purpose had been to restore the axle to a position from which it had been moved by accident or mistake, plaintiff would more clearly be deemed to have been repairing a defect and doing mechanical work. We believe that to distinguish on this basis would be both pointless and irrelevant to the language and purpose of §3106(2). Therefore, we conclude that a mechanic engaged in servicing a vehicle, whether he is engaged in repairing a defect, performing preventive maintenance or making an adjustment to alter operating characteristics, is performing mechanical work within the meaning of § 3106(2). [MacDonald, supra at 656. Emphasis added.]

In short, whatever the cause of the air leak, plaintiff was clearly "doing mechanical work” within the meaning of § 3106(2) when he attempted to correct it. Accordingly, I would remand for entry of judgment in favor of defendant on this basis.2_

There is nó dispute that plaintiff has workers’ compensation benefits available for his injuries.

I agree with the majority that plaintiff was not loading or unloading the vehicle when his injuries occurred.