Mull v. Equitable Life Assurance Society

Griffin, J.

(dissenting). Because I conclude that the front-end loader in this case, which was operated in the parking lot of a shopping mall, is not a "motor vehicle” within the meaning of the civil liability act, MCL 257.401 et seq.; MSA 9.2101 et seq., commonly referred to as the owner liability statute, I respectfully dissent.__,

*524I

I would add to the statement of facts provided by the majority the information that because the accident occurred in the course of plaintiff’s employment, he received benefits under the Workers’ Disability Compensation Act1 from the insurance carrier of his employer, tcc. The record reflects that as of January 10, 1990, plaintiff had received $30,959 in wage loss benefits and $49,867 in medical benefits.

A

Resolution of this appeal turns on the meaning of four little words, "is or may be,” as they are used in § 79 of the Michigan Vehicle Code, which in pertinent part provides:

"Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except a mobile home .... [MCL 257.79; MSA 9.1879. Emphasis added.]

The code also defines "motor vehicle” as "every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from over-head trolley wires, but not operated upon rails.” MCL 257.33; MSA 9.1833.

Because the owner liability statute is part of the Michigan Vehicle Code,2 we look to the code’s definitions in determining the proper construction of its terms. In pertinent part, the owner liability statute provides:_

*525The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the motor vehicle whether the negligent operation consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in the operation of the motor vehicle as the rules of the common law requires [sic]. The owner shall not be liable, however, unless the motor vehicle is being driven with his or her express or implied consent or knowledge .... [MCL 257.401; MSA 9.2101. Emphasis added.]

With those statutory provisions in mind, we turn to an examination of some court decisions that are instructive.

B

While the precise question presented is one of first impression, this Court has spoken concerning the purpose underlying the owner liability statute. In Frazier v Rumisek, 358 Mich 455, 457; 100 NW2d 442 (1960), this Court explained:

The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v Palmer, 350 Mich 363 [86 NW2d 585 (1957)], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use. [Emphasis added.]

There can be no doubt that the primary concern *526of the Legislature when it enacted the owner liability statute was the rapidly rising number of deaths and injuries resulting from automobile accidents on the highways. See also Kiefer v Gosso, 353 Mich 19; 90 NW2d 844 (1958); Roberts v Posey, 386 Mich 656; 194 NW2d 310 (1972). However, in Ladner v Vander Band, 376 Mich 321; 136 NW2d 916 (1965), in which an automobile struck the plaintiff in his employer’s parking lot, this Court made clear that the reach of the owner liability act is not limited to accidents that occur on the public highways.

The first Michigan decision to address the issue before us was Calladine v Hyster Co, 155 Mich App 175; 399 NW2d 404 (1986). In that case, a plaintiff was injured when struck by a forklift operated by a co-worker inside the plant of their employer, who was not the owner of the forklift. Upon review of a negligence suit brought by the injured plaintiff against the forklift owner, the Court of Appeals ruled that

the forklift which struck plaintiff’s ward was not a motor vehicle within the meaning of the owner’s liability statute. Where a device is not actually transported or drawn upon a highway and where it cannot lawfully be operated on a highway, it is not a vehicle within the purview of the owner’s liability statute. That is the meaning of the "is or may be” language found in MCL 257.79; MSA 9.1879. This reading of the statute comports with the legislative design to deal primarily with injuries occasioned by automobiles, as set out in Frazier, supra. [Id. at 180-181.]

Later, in Jones v Cloverdale Equipment, 165 Mich App 511, 514; 419 NW2d 11 (1987), the Court *527of Appeals applied similar reasoning in another forklift case. The Jones panel explained,

[U]nder the "is or may be” language [of MCL 257.79; MSA 9.1879] a device must be capable of lawful operation on a highway in order to be considered a "vehicle” within the purview of the owner’s liability statute. In this case, the undisputed facts established that the subject forklift had no headlights or taillights, no turn signals, no windows or doors, and lacked registration or licensing. It was thus incapable of lawful operation on a highway. Consequently, under Calladme, it was not a "vehicle” — and therefore not a "motor vehicle” — for purposes of the owner’s liability statute. [Emphasis added.]

When this case came before the Court of Appeals, a majority acknowledged that "[i]f we were to apply the analyses set forth in Calladme and Jones, we would have to find that the front-end loader is not a motor vehicle for purposes of the owner’s liability statute,” 196 Mich App 418, but then stated:

We disagree . . . with the Calladme Court’s interpretation of the "is or may be” language in the definition of "vehicle.”
In our view, nothing in the language of § 79 of the Vehicle Code permits this Court to impose the requirement that a device must be capable of lawfully being operated on a highway in order for it to be considered a vehicle for purposes of the owner’s liability statute. [Id. at 418-419.]

The dissenting judge, having served on the Cal-ladme panel, registered sharp disagreement with the majority’s intimation that Calladme had "read *528into the statute a meaning not intended by the Legislature.”3 Id. at 425.

c

It may not be unreasonable to suggest that the Legislature’s use of the words "is or may be” in the context of § 79 has not provided us with a paradigm of clarity. The familiar principle that unambiguous terms are to be given their plain meaning lends little assistance in the resolution of this controversy. Our purpose must be to give effect to the intent of the Legislature. In so doing, we often find it necessary to infer intent from the language used. As this Court said in White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979):

[I]t is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied ....

However, in the absence of unambiguous direction from the Legislature, the judiciary ought to be reluctant to infer the imposition of such an onerous burden as vicarious liability upon any group or classification. Clearly, in this case, if the accident involving a front-end loader had occurred on the highway, it would have been covered by the § 79 definition. See Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968). Under those circumstances, it would be a "device ... by which any person or property is .. . transported *529or drawn upon a highway . . . MCL 257.79; MSA 9.1879. On the other hand, when a self-propelled device that is not designed for highway use, like a front-end loader, becomes involved in an accident away from the highway, it cannot be said that the Legislature clearly intended the imposition of vicarious liability.

Plaintiff points to the word "may” in the § 79 definition and argues that its meaning broadly sweeps into the statute’s ambit every device that is "capable of being” operated upon a highway. Similarly, a majority of the Court of Appeals panel would hold that the statute applies to "every machine that is self-propelled and could be used to transport people or property on a highway . . . .” Ante, p 515. (Emphasis added.) Such a construction should be rejected for several reasons.

First, that interpretation of the "is or may be” language would render nugatory the word "is” in the definition, contrary to the fundamental rule of construction that every word in a statute should be given meaning if possible. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971). If a self-propelled device is being operated on a highway, of course it is capable of being so operated. Because the class of devices capable of being operated on a highway necessarily includes all devices that in fact are operated on highways, the word "is” in the definition becomes superfluous under such an interpretation.

Second, it is obvious that such a sweeping interpretation, extending vicarious liability to every owner of every device "capable of being” operated on a highway, would produce absurd results that could not have been intended by the Legislature. The list of those affected would include, for example, owners of motorized wheelchairs, riding lawn mowers, golf carts, and even airplanes. See Gen*530eral Aviation, Inc v Cessna Aircraft Co, 703 F Supp 637 (WD Mich, 1988).

In these circumstances, I find the interpretation and reasoning in Calladme to be more compatible with common sense as well as the underlying purpose of the Legislature.

ii

It has been pointed out that "may” is often used as a word of permission. See Smith v School Dist No 6, Fractional, Amber Twp, 241 Mich 366; 217 NW 15 (1928); Newport West Condo Ass’n v Ven-iar, 134 Mich App 1; 350 NW2d 818 (1984). In fact, as defined in the statute, MCL 257.82; MSA 9.1882, "may is permissive.” Thus, a vehicle that is or "may be” drawn upon a highway is one that is permitted to be transported on a highway. It is altogether reasonable to read the words at issue as saying, in effect, that " '[v]ehicle’ means every device ... by which any person or property in fact is transported on a highway or would be permitted to be transported on a highway.”

Further, it does not require a leap of logic to conclude that in this context the Legislature was referring to legal permission. In other words, a self-propelled vehicle may be operated on a highway if it is designed and equipped as the law requires.

As the dissenting Court of Appeals judge explained:

[T]he tractor [front-end loader] in this case lacks many of the equipment features required by the Vehicle Code. The headlights are not a proper distance from the ground, MCL 257.685(c); MSA 9.2385(c). The tractor has no turn signals, MCL 257.697a; MSA 9.2397(1), hazard lights, MCL 257.698a; MSA 9.2398(1), or side view mirrors, *531MCL 257.708; MSA 9.2408. It was not registered. For at least the past seventeen years, the tractor had been operated on the premises of the shopping mall where the injury occurred, not on the public highway.
[T]his is not a case where the tractor at issue is lacking a single headlight or some other solitary feature required by the Vehicle Code. In this case, in addition to lacking the most basic safety equipment, the tractor has no speedometer, is only capable of speeds up to twenty-five miles an hour, and cannot be operated on the public highway without special safety precautions. See, e.g., MCL 257.688; MSA 9.2388. Indeed, on the few occasions this tractor was operated on a public highway, it was operated with a vehicle following it. MCL 257.686(4)(b); MSA 9.2386(4)(b). In light of these facts, it cannot be seriously argued that the tractor in this case was designed for highway use. [196 Mich App 425-426.]

In sum, it is obvious that a device that lacks so many of the required characteristics for proper and safe operation on the public highway is not legally permitted to be driven on the highway, even though it could be capable of being driven there.

Accordingly, I would adopt the Calladme interpretation, which gives meaning to every word of the "is or may be” language while recognizing a logical distinction between accidents that occur on a highway and involve any self-propelled device and those accidents that occur off the highway and involve machinery designed for purposes other than highway use. This distinction is important in the allocation of risks and costs for insurance purposes, particularly in such areas of commerce as the construction industry.

As noted by an amicus curiae supporting defen*532dant, for many years the forklifts, front-end loaders, and other motorized machinery used on a construction site have been rented from off-site lessors or have been made available by one contractor to another. Since 1912, those who work in such an environment have enjoyed workers’ compensation protection, the cost of which is borne by their employers. To adopt the owner liability statute interpretation now urged upon us by plaintiffs would surely increase the cost and work a change in the allocation of insurance reparations for off-highway accidents. Finding no basis to believe that such a change was anticipated or intended by the Legislature, I would leave this policy decision to the wisdom of the legislative branch.

iii

The conclusion I would reach concerning the proper construction of the owner liability statute is reinforced by reference to the no-fault act4 and the financial responsibility act.5 Statutes that relate to the same subject matter or share common objectives should be read in the same light, even though they may have been enacted at different times and do not refer to each other. Palmer v State Land Office Bd, 304 Mich 628; 8 NW2d 664 (1943).

The owner liability statute and the no-fault act both address the scope and conditions of liability related to the use of motor vehicles. See Hill v Aetna Life & Casualty Co, 79 Mich App 725; 263 NW2d 27 (1977), and Citizens Mutual Ins Co v Fireman’s Fund Ins Co, 234 F Supp 931 (WD Mich, *5331964).6 Likewise, the financial responsibility act and the owners liability act share the common purpose of ensuring that a financially responsible source of recovery will be available for victims of motor vehicle accidents. See Surtman v Secretary of State, 309 Mich 270; 15 NW2d 471 (1944).

In reviewing the financial responsibility act, it is noted that of all the vehicles capable of operation on the highway, that act exempts "special mobile equipment,” "farm tractors,” and "implements of husbandry.” Clearly, a front-end loader fits within the code’s definition of "special mobile equipment.”7 Thus, our interpretation of "motor vehicle” in the owner liability act is not at odds, but is consistent with the financial responsibility act.

We also find it instructive to compare the "is or may be” language at issue with the corresponding no-fault act definition, which provides: " '[m]otor vehicle’ means a vehicle . . . operated or designed for operation upon a public highway . . . .” MCL 500.3101(2)(e); MSA 24.13101(2)(e). (Emphasis added.)

*534Although the wording of these definitions is not identical, in substance it is the same. For' example, in Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590, 597-598; 339 NW2d 470 (1983), this Court ruled that where an accident occurs off the highway, a self-propelled device is not a "motor vehicle” for purposes of the no-fault act unless it is primarily designed for operation on a public highway. Under the no-fault act, a device is not a "motor vehicle” simply because it is capable of operation on a public highway. Thus, our interpretation of "motor vehicle” under the owner liability act would stand in harmony with the corresponding no-fault act definition.

iv

For the reasons set forth, I dissent and would hold that the front-end loader in the instant case is not a "motor vehicle” within the meaning of the owner liability statute.

Boyle and Riley, JJ., concurred with Griffin, J.

MCL 418.101 et seq.; MSA 17.237(101) et seq.

MCL 257.1 et seq.; MSA 9.1801 et seq.

The dissenter on the panel in this case was Judge Gribbs. Judge Neff authored the opinion in which Judge Murphy joined.

MCL 500.3101 et seq.; MSA 24.13101 et seq.

MCL 257.501 et seq.; MSA 9.2201 et seq.

In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 471; 208 NW2d 469 (1973), this Court took note of the fact that over two hundred statutes were related and in some way affected by enactment of the no-fault act. In particular, Justices Levin and T. G. Kavanagh, in concurring opinions, recognized that the no-fault act would modify the motor vehicle act and the owner’s liability statute. Justice Levin stated: "[t]he principal change in former law wrought by the no-fault act is the modification of the common-law liability for negligence in driving an automobile. In consequence, there is a change in the recoveries allowable under the civil liability act and the wrongful death act.” Id. at 496.

"Special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including farm tractors, road construction or maintenance machinery, mobile office trailers, mobile tool shed trailers, mobile trailer units used for housing stationary construction equipment, ditch-digging apparatus, and well-boring and well-servicing apparatus. The foregoing enumeration shall be considered partial and shall not operate to exclude other vehicles which are within the general terms of this definition. [MCL 257.62; MSA 9.1862. Emphasis added.]