Illinois Farmers Insurance Co. v. League of Minnesota Cities Insurance Trust

DORIS O. HUSPENI, Judge

(concurring specially).

I agree with the majority that the bookmobile was not a vehicle being used in the business of transporting persons or property within the meaning of Minn.Stat. § 65B.47, subd. I. I write separately only to identify a second, independent basis for reversal, in the event further appellate review calls into question the basis relied upon by the majority.2

Before both the district court and this court, appellant has argued that Sande-fur’s injury did not arise out of the maintenance or use of a motor vehicle. Respondent concedes that, despite an earlier, unappealed, trial court ruling to the contrary in the action between Sandefur and respondent, appellant may raise this issue in the present action between these two insurers. In the interest of fully addressing all issues raised, I would reach the question of whether Sandefur’s injury arose out of the maintenance or use of a motor vehicle, and answer that it did not.

As noted in Marklund v. Farm Bureau Mut. Ins. Co., 400 N.W.2d 337 (Minn.1987), when addressing the policy goals of the no-fault act, “costs of injuries causally resulting from motoring activities should be allocated to the automobile reparation insurance system.” Id. at 341. It follows, I submit, that those injuries not resulting from motoring activities should be compensated from other sources. As the majority notes, the bookmobile here was being used as a library. Sandefur’s accident occurred in a library. The fact that the library “moved” before and after the accident is immaterial. There is absolutely no connection between the injury suffered and the operation or use of the bookmobile as a motor vehicle. The injury arose out of an unfortunate fall occurring in a stationary structure; a library.

Finally, appellant’s argument that the injury here did not arise out of the maintenance or use of a motor vehicle is strongly supported by abundant caselaw. See Classified Ins. Corp. v. Vodinelich, 368 N.W.2d 921 (Minn.1985) (surviving father of two children killed by carbon monoxide exhaust fumes when mother committed suicide in her car not entitled to no-fault benefits); Waldbillig v. State Farm Mut. Auto. Ins. Co., 321 N.W.2d 49 (Minn.1982) (injury sustained while attempting to start equipment on a trailer not covered under no-fault insurance); St. Paul Fire and Marine Ins. Co. v. Sparrow, 378 N.W.2d 12 (Minn.App.1985) (injury sustained in trailer being used as a concession stand not covered under no-fault insurance), review denied (Minn. Jan. 23,1986).

The litigation between Sandefur and her insurer is at an end. She has been com*432pensated for her injury. The cost of that compensation should not, however, be borne by appellant in this case. Appellant prevails, I believe, not only because the bookmobile was not a vehicle being used in the business of transporting persons or property, but because the injury did not arise out of the maintenance or use of a motor vehicle.

. In Continental Western Ins. Co. v. Klug, 394 N.W.2d 872 (Minn.App.1986), this court determined that an incident had not arisen out of the maintenance or use of a motor vehicle. Having so declared, we found it unnecessary to address the issue of whether that incident was '‘accidental.” Id. at 877. Upon further review, the supreme court reversed this court, ruling that the incident did, in fact, arise out of the maintenance or use of a motor vehicle. Continental Western Ins. Co. v. Klug, 415 N.W.2d 876, 878-79 (Minn.1987). The supreme court then remanded to this court the issue of whether the incident was an "accident” within the meaning of the statute. Id. at 879. Arguably, had this court addressed both prongs of the test for coverage (was it an accident, and did it arise out of the maintenance or use of a motor vehicle), remand could have been avoided.