Winter v. Auto. Club of Mich.

Cavanagh, J.

(dissenting). I agree with the majority of the Court that the tow truck was in use "as a motor vehicle” when plaintiff’s injuries occurred. The truck was being used for its intended purpose, and in accordance with the decision in Bialochowski v Cross Concrete Pumping Co, 428 Mich 219; 407 NW2d 355 (1987), the truck was in use "as a motor vehicle” within the meaning of § 3105(1) of the no-fault act.1

I disagree, however, with the majority’s conclusion that because none of the exceptions to the parked vehicle exclusion outlined in § 3106(1)2 is applicable, no-fault coverage is not available to plaintiff. In Miller v Auto-Owners Ins Co, 411 Mich 633, 641; 309 NW2d 544 (1981), the Court held that the plaintiff was entitled to no-fault coverage for injuries incurred during the maintenance of his vehicle as a motor vehicle without regard to whether the vehicle might be considered "parked” at the time of the injury. The Court referred to the policies underlying §§ 3105(1) and 3106(1), stating:_

*462The policy underlying the parking exclusion is not so obvious but, once discerned, is comparably definite. Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved. There is nothing about a parked vehicle as a motor vehicle that would bear on the accident.
Each of the exceptions to the parking exclusion thus describes an instance where, although the vehicle is parked, its involvement in an accident is nonetheless directly related to its character as a motor vehicle. The underlying policy of the parking exclusion is that, except in three general types of situations, a parked car is not involved in an accident as a motor vehicle. It is therefore inappropriate to compensate injuries arising from its non-vehicular involvement in an accident within a system designed to compensate injuries involving motor vehicles as motor vehicles. [Miller, supra, pp 639-641. Emphasis in original.]

I agree with the Court of Appeals that reference to the policies underlying these two statutory provisions is no less appropriate in the present case than in Miller. The purpose behind the parked vehicle exclusion would not be advanced by applying the provision so as to prevent coverage for plaintiff’s injuries.

I would hold that once it is determined that a dual-purpose vehicle, such as the cement truck in Bialochowski and the tow truck in this case, was being used for one of its intended purposes and was, therefore, in use "as a motor vehicle” under § 3105(1), no-fault coverage is available for injuries which arose out of that use without regard to *463whether the vehicle might be considered "parked.” For this reason, I would affirm the decision of the Court of Appeals.

Archer, J., concurred with Cavanagh, J.

MCL 500.3105(1); MSA 24.13105(1).

MCL 500.3106(1); MSA 24.13106(1).