Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 30, 2003
NICKOLAS REDNOUR,
Plaintiff-Appellee,
v No. 119187
HASTINGS MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal to consider the proper
definition of the word “occupying” in the no-fault automobile
insurance policy at issue in this case. We hold that
plaintiff was not “occupying” the vehicle as that term is
defined in the policy because he was outside the vehicle and
approximately six inches from it when the other automobile
struck him. We thus reverse the judgment of the Court of
Appeals and reinstate the trial court’s decision.
I. Underlying facts and procedural posture
Plaintiff was driving a friend’s car in Ohio. The left
rear tire of the vehicle became flat. To change the tire,
plaintiff left the car, loosened the lug nuts, and began to
walk toward the rear of the car. An oncoming automobile then
struck plaintiff and threw him against the car he had been
driving, injuring him. Plaintiff admitted that he had not
been touching his friend’s car and that he had been
approximately six inches from it when the other vehicle struck
him.
The vehicle plaintiff had been driving was insured under
Michigan’s no-fault insurance act, MCL 500.3101 et seq., with
defendant Hastings Mutual Insurance Company. Plaintiff
contended that he was “occupying” the vehicle as that term had
been defined in defendant’s policy and that he thus was
entitled to personal injury protection (PIP) benefits. After
defendant denied the claim, plaintiff filed a complaint
seeking payment of the benefits. Defendant moved for summary
disposition under MCR 2.116(C)(10) on the ground that
plaintiff had not established a genuine issue of material fact
regarding whether he had been “occupying” the insured vehicle
when he was injured. The trial court granted defendant’s
motion.
2
On review, the Court of Appeals reversed.1 It treated
the word “occupying” as ambiguous and construed it against
defendant, the drafter of the policy. On that basis, the
Court concluded that plaintiff was “occupying” the vehicle
within the meaning of that term in the policy.
Defendant filed an application for leave to appeal, which
we granted. 467 Mich 869 (2002).
II. Standard of review
We review de novo a trial court’s ruling on a motion for
summary disposition. Hinkle v Wayne Co Clerk, 467 Mich 337,
340; 654 NW2d 315 (2002). The interpretation of a contract
presents a question of law that we also review de novo.
Archambo v Lawyers Title Ins Corp, 466 Mich 402, 408; 646 NW2d
170 (2002).
III. Discussion
A. Statutory and contractual provisions
The no-fault act sets forth the circumstances in which
benefits are available for out-of-state accidents. MCL
500.3111 states:
Personal protection insurance benefits are
payable for accidental bodily injury suffered in an
accident occurring out of this state, if the
accident occurs within the United States, its
territories and possessions or in Canada, and the
person whose injury is the basis of the claim was
at the time of the accident a named insured under a
1
245 Mich App 419; 628 NW2d 116 (2001).
3
personal protection insurance policy, his spouse, a
relative of either domiciled in the same household
or an occupant of a vehicle involved in the
accident whose owner or registrant was insured
under a personal protection insurance policy or has
provided security approved by the secretary of
state under subsection (4) of section 3101.
[Emphasis added.]
Plaintiff was not a named insured or a spouse or relative of
a named insured. Thus, the statute provides that to obtain
PIP benefits, plaintiff must qualify as an “occupant” of an
insured vehicle involved in the accident. The no-fault act
does not define the word “occupant.”
The insurance policy at issue states:
A. We do not provide Personal Injury
Protection Coverage for “bodily injury”:
* * *
3. Sustained by any “insured” while not
“occupying” an “auto” if the accident takes place
outside Michigan. However, this exclusion does not
apply to:
a. You; or
b. Any “family member”.
The policy defines “occupying” as “in, upon, getting in, on,
out or off.”
B. Case law
This Court has previously considered whether a person was
either an “occupant” of, or “occupying,” a vehicle. In
Nickerson v Citizens Mut Ins Co, 393 Mich 324; 224 NW2d 896
(1975), a case before the no-fault act, the plaintiff left a
4
stalled vehicle and walked to the front of the car. An
uninsured motorist struck the stalled automobile and pushed it
into the plaintiff, injuring him. The plaintiff sought
uninsured-motorist benefits. The policy provided benefits to
an “assured” who was “occupying the insured automobile.” The
policy defined “occupying” as “in or upon or entering into or
alighting from.” Id. at 328.
The Nickerson Court construed the policy against the
drafter to grant benefits. Id. at 330. It stated that the
insured vehicle had touched the plaintiff when he was injured
and that the plaintiff was thus “upon” the car. Id. at 330
331. The Court further suggested that physical contact was
not required in the circumstances presented in Nickerson.
In Royal Globe Ins Co v Frankenmuth Mut Ins Co, 419 Mich
565; 357 NW2d 652 (1984), a priority dispute between two
insurers hinged on whether the injured person was “an
occupant” of a company vehicle under § 3114 of the no-fault
act. A woman had gotten out of her husband’s company car and
walked sixty feet to a garage. The husband then accidently
struck the garage and his wife with the car. This Court held
that she was not “an occupant” of the company car under §
3114. This Court distinguished Nickerson as a case predating
no-fault:
5
And, unlike the concern in Nickerson, what is
more directly implicated here is the need to
further the goal of the no-fault act which seeks to
provide victims of motor vehicle accidents with
prompt reparation for their losses. That purpose
is better served in cases such as the one before us
by the certainty and predictability that a literal
construction of the word “occupant” will yield,
when it is assigned its primary and generally
understood meaning. [Id. at 575.]
“Whatever her status was after she left the motor vehicle in
the street and walked some 60 feet to the rear of the garage
where the [company car] struck her, [the wife] was ‘not an
occupant’ of the vehicle when she was injured.” Id. at 576.
Next, in Rohlman v Hawkeye-Security Ins Co (Rohlman I),
442 Mich 520; 502 NW2d 310 (1993), the plaintiff was struck
and injured on a highway in Ohio while attempting to retrieve
a trailer that had become unhitched from a van. The plaintiff
sought PIP benefits and uninsured-motorist benefits from the
insurer of the van. This Court held that the plaintiff was
not an “occupant” of the van for the purpose of obtaining PIP
benefits. This Court again noted that Nickerson was a case
predating no-fault. Under the no-fault act, most “accidents
are now covered by personal injury protection benefits or the
assigned claims plan. Therefore, the repeal of the uninsured
motorist statute and passage of the no-fault act largely
eliminated the motivating factors underlying the Nickerson
decision.” Id. at 529. This Court did not decide whether the
6
policy in Rohlman I afforded broader coverage than the no
fault act because the parties did not raise that issue.
In addressing the meaning of “occupant” in § 3111, the
Rohlman I Court noted that subsection 3106(1)(c) of the no
fault act provides coverage for a person injured “while
occupying, entering into, or alighting from [a parked]
vehicle.” The Rohlman I Court concluded:
The Legislature expressly recognized that
“entering into” and “alighting from” are acts
separate from “occupying” a vehicle. . . . Section
3111 does not include “entering into” or “alighting
from” the vehicle as acts that would trigger
personal protection benefits for an out-of-state
accident.
By giving the term occupant its primary and
generally understood meaning coupled with the above
statutory reference, we conclude that the plaintiff
was not an occupant of the van because he was not
physically inside the van when the accident
occurred. We find this interpretation consistent
with our Royal Globe decision and the intent of the
no-fault act. [Rohlman I, supra at 531-532
(emphasis added).]
The Rohlman I Court remanded the case to the Court of
Appeals to consider whether the plaintiff was an occupant of
the trailer for the purposes of the no-fault statute and
whether the plaintiff was occupying the van or the trailer for
the purposes of the uninsured-motorist provision of the
policy. The Court of Appeals considered those issues on
remand in Rohlman v Hawkeye-Security Ins Co (On Remand)
(Rohlman II), 207 Mich App 344; 526 NW2d 183 (1994). It
7
concluded that the plaintiff was not an occupant of the
trailer under the Rohlman I definition because he was not
“physically inside” it.
The policy in Rohlman II required the plaintiff to have
been “occupying” the insured vehicle to obtain uninsured
motorist benefits. The policy defined “occupying” as “in,
upon, getting in, on, out or off.” Id. at 351. The Court
noted that the word “getting” appears to modify the words “in,
on, out, or off” because the policy could not cover everyone
who was “out” or “off” the vehicle, and because the word “on”
was synonymous with “upon,” which was included elsewhere in
the definition. The plaintiff was not getting in, on, out, or
off the van or the trailer when the accident occurred.
A question remained whether the plaintiff was “upon” the
van or the trailer. The Rohlman II Court noted that The
Random House College Dictionary (Rev ed, 1988) defined “upon”
to mean “up and on; upward so as to get or be on: He climbed
upon his horse and rode off.” Rohlman II, supra at 356.
Webster’s Third New International Dictionary defined “upon” to
mean “on.” Rohlman II, supra at 356. The Court acknowledged
another definition of “upon” listed in the Random House
dictionary: “in or into complete or approximate contact with,
as an attacker or an important or pressing occasion: The enemy
was upon us. The Christmas holiday will soon be upon us.”
8
Rohlman II, supra at 355. That latter definition did not
apply.
We doubt that anyone would argue that the
parties to the insurance contract intended that the
word “upon” be used in the sense of “approximate
contact . . . with an attacker” or “in close
proximity . . . with an attack.” Moreover, we are
convinced that the parties did not intend that
“upon” should be interpreted as “immediate
proximity.” That interpretation would provide (and
require payment for) supplemental coverage in the
form of uninsured motorist benefits for anyone who
happens to be near the covered auto and injured
when the auto is struck by an uninsured motorist
even though the person has no connection with the
owner, named insured, or covered vehicle. [Id. at
356-357.]
Nonetheless, the Rohlman II Court suggested that a person
need not be completely supported by an object to be “upon” it.
The Court stated that the term requires, at a minimum,
physical contact with the covered auto when the injury occurs.
Id. at 357. The plaintiff was not in physical contact with
the van when the accident occurred. A question of fact
remained, however, whether the plaintiff was in physical
contact with the trailer at the time of the accident. The
Court remanded the case to the trial court to resolve that
issue.
C. Analysis and application
No-fault PIP benefits are not available to plaintiff
under § 3111. A person must be physically inside a vehicle to
be an “occupant” of it under the no-fault act. Rohlman I,
9
supra at 523. Plaintiff was not physically inside the vehicle
during the accident and thus was not an “occupant” of it.
We need not reach the question left open in Rohlman I,
i.e., whether a policy may provide coverage broader than that
required by the no-fault act. Plaintiff was not “occupying”
the vehicle under the policy definition of that term. He was
outside the vehicle, approximately six inches away from it.
He was not in the vehicle, nor was he getting in, on, out, or
off the vehicle when he was injured.
Plaintiff suggests that he was “upon” the car because he
was pinned against it after being struck. Physical contact by
itself does not, however, establish that a person is “upon” a
vehicle such that the person is “occupying” the vehicle.2 The
relevant dictionary definitions discussed above clarify that
2
The dissent, citing plaintiff’s assertion that he was
injured when he was pinned between the two cars, concludes
that plaintiff has alleged sufficient facts to enable a jury
to conclude that he was “on” or “upon” the insured vehicle
when the accident occurred. However, this analysis fails to
take account that “on” or “upon” must be interpreted in the
context of the word that they are defining: “occupying.” The
dissent ignores the definitional word itself because it cannot
be said that plaintiff here was “occupying” the vehicle in
question, however broadly “on” and “upon” are defined.
Further, the arbitrariness of the dissent’s interpretation
must be noted. Under the dissent’s reasoning, if there are
two persons who are struck by a vehicle while in the vicinity
of the insured vehicle, and if one is thrown into the insured
vehicle while the other is thrown into a tree, a highway, a
curb, or a fence, only the former would be covered by the
policy as interpreted by the dissent. Such happenstance does
not form a rational basis for understanding the scope of
coverage under an insurance policy.
10
one must be on or up and on a vehicle in order to be “upon”
it.3 We reject the dicta in Rohlman II that suggests physical
contact alone may be sufficient to show that the person was
“upon” the vehicle so as to be “occupying” the vehicle.4
We overrule Nickerson because it departed from the plain
language of the policy definition. In Royal Globe and Rohlman
I, this Court observed that the concerns underlying the
Nickerson decision were not compelling following the passage
of the no-fault act. We agree and note that the Nickerson
Court was bound to apply the clear policy language regardless
of whether the insurance contract was entered into before the
no-fault act took effect. The definition of “occupying” in
the Nickerson policy is essentially identical to the
definition in the policy before us. Because Nickerson did not
follow that definition, we overrule that decision to the
extent that it is inconsistent with our analysis here. Courts
3
The Rohlman II Court properly rejected the definition of
“upon” that refers to close proximity, as in “the enemy is
upon us.” That definition is wholly inapposite in the context
of physical occupancy and, moreover, it would expand coverage
to anyone near the vehicle regardless of their relationship to
it. The more pertinent definition of “upon” is “on” or “up
and on.”
4
Contrary to the dissent’s assertion, the majority has
not made credibility determinations. We have considered the
evidence in the light most favorable to plaintiff, the
nonmoving party, as we must when reviewing an order granting
or denying summary disposition pursuant to MCR 2.116(C)(10).
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28
(1999).
11
may not elevate preferential rules of interpretation above the
unambiguous text of a statute or contract.5 Crowe v Detroit,
465 Mich 1, 16; 631 NW2d 293 (2001); Koontz v Ameritech
Services, Inc, 466 Mich 304, 319; 645 NW2d 34 (2002).
IV. Conclusion
Under the policy definition of “occupying” that was
adopted by the vehicle owner and the insurance company,
plaintiff was not occupying the insured automobile when he
sustained bodily injury. Accordingly, we reverse the judgment
of the Court of Appeals and remand the case to the trial court
for entry of an order of summary disposition in favor of
defendant.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
5
The dissent purports to construe the policy against
defendant, but does not explain how or why it believes the
contractual language is unclear. “[A] court should not create
ambiguity in an insurance policy where the terms of the
contract are clear and precise. Thus, the terms of a contract
must be enforced as written where there is no ambiguity.”
Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596
NW2d 190 (1999) (citations omitted). Also, “[t]he fact that
a policy does not define a relevant term does not render the
policy ambiguous.” Id.
12
S T A T E O F M I C H I G A N
SUPREME COURT
NICKOLAS REDNOUR,
Plaintiff-Appellee,
v No. 119187
HASTINGS MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
The majority concludes that the Court of Appeals in
Rohlman II1 correctly read the policy language at issue here
when it construed "upon" to mean "on." However, it rejects
the Rohlman II conclusion that being "on" an insured
automobile requires only having contact with it.
Moreover, the majority concludes that its decision would
control whenever "upon" is used in an insurance contract.
Thus, it overrules our holding in Nickerson v Citizens Mut Ins
1
Rohlman v Hawkeye-Security Ins Co (On Remand) (Rohlman
II), 207 Mich App 344; 526 NW2d 183 (1994).
Co,2 although the policy language at issue in that case is not
present here.
I dissent from the majority's holding because, construing
the disputed terms against the drafter, I find that plaintiff
raised a genuine issue of material fact regarding whether the
policy covers his injuries. Thus, defendant was not entitled
to summary disposition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was driving a vehicle insured by defendant when
the rear tire of the vehicle went flat. As plaintiff was
changing the tire, he was struck by an oncoming vehicle.
He filed with defendant a claim for personal injury
protection (PIP) benefits. Defendant denied the claim.
Plaintiff then brought an action for benefits in the circuit
court. In his complaint, plaintiff contended that defendant
owed him PIP benefits because, under the terms of the policy,
he was "occupying" the insured vehicle at the time of the
accident. Defendant moved for summary disposition under MCR
2.116(C)(10), and the trial court granted the motion.
The Court of Appeals reversed the trial court and held
that, under the language of the contract, it was unclear
whether plaintiff, when injured, was an "occupant" of the
insured vehicle. Accordingly, it construed the policy
2
393 Mich 324; 224 NW2d 896 (1975).
2
language against defendant, its drafter. The Court then
concluded that plaintiff was an occupant of the vehicle.
Defendant filed an application for leave to appeal, which
we granted. The majority now reverses the Court of Appeals
and holds that plaintiff was not an occupant of the insured
vehicle.
II. DISCUSSION
Issues of contract interpretation are questions of law
that we review de novo. Archambo v Lawyers Title Ins Corp,
466 Mich 402, 408; 646 NW2d 170 (2002). When interpreting a
contract, we first consider the language of the contract. If
it is unambiguous, we apply it as written.
If the language, reasonably read, has more than one
meaning, we are required to interpret it. In so doing, we
construe ambiguous language against its drafter.
A. OCCUPANCY UNDER THE NO -FAULT ACT
MCL 500.3111 prescribes when PIP benefits are available
for out-of-state automobile accidents. It provides:
Personal protection insurance benefits are
payable for accidental bodily injury suffered in an
accident occurring out of this state, if the
accident occurs within the United States, its
territories and possessions or in Canada, and the
person whose injury is the basis of the claim was
at the time of the accident a named insured under a
personal protection insurance policy, his spouse, a
relative of either domiciled in the same household
or an occupant of a vehicle involved in the
accident whose owner or registrant was insured
under a personal protection insurance policy or has
3
provided security approved by the secretary of
state under subsection (4) of section 3101.
Although the no-fault act, MCL 500.3101 et seq., does not
further define the term "occupant," we have previously
considered its meaning as used in the act.
In Royal Globe Ins Co v Frankenmuth Mut Ins Co,3 we
stated that the purposes of the act are best served "by the
certainty and predictability that a literal construction of
the word 'occupant' will yield when it is assigned its primary
and generally understood meaning." Id. at 575.
We also discussed the meaning of "occupant" in the act in
the case of Rohlman v Hawkeye-Security Ins Co (Rohlman I), 442
Mich 520; 502 NW2d 310 (1993). After first noting that
subsection 3106(1)(c) provides benefits for persons injured
"while occupying, entering into, or alighting from the
vehicle," we concluded that:
The Legislature expressly recognized that
"entering into" and "alighting from" are acts
separate from "occupying" a vehicle. . . . Section
3111 does not include "entering into" or "alighting
from" the vehicle as acts that would trigger
personal protection benefits for an out-of-state
accident.
By giving the term occupant its primary and
generally understood meaning coupled with the above
statutory reference, we conclude that the plaintiff
was not an occupant of the van because he was not
physically inside the van when the accident
occurred. . . . [Id. at 531-532.]
3
419 Mich 565; 357 NW2d 652 (1984).
4
Applying the ordinary definition of "occupant" to this case,
it is evident that plaintiff was not an occupant of the
insured vehicle for purposes of the no-fault act.
B. OCCUPANCY UNDER THE HASTINGS POLICY
Although plaintiff cannot receive benefits under the act,
it does not necessarily follow that he cannot receive benefits
under the insurance policy issued by defendant.
The policy states:
A. We do not provide Personal Injury
Protection Coverage for "bodily injury":
* * *
3. Sustained by any "insured" while not
occupying an "auto" if the accident takes place
outside Michigan.
The policy defines "occupying" as "in, upon, getting in, on,
out, or off." In Nickerson, a case interpreting an
automobile-insurance policy, this Court held that a plaintiff
was an occupant of an insured vehicle under circumstances
similar to those in this case.
The policy in Nickerson defined "occupant" as a person
who was "in or upon or entering into or alighting from" an
insured vehicle. Nickerson, supra at 328. Applying the rules
of contract interpretation to that language, the Nickerson
Court held that the policy extended to plaintiff's injuries.
It applied a standard definition of "upon" to the policy
language. It then concluded that the plaintiff was an
5
occupant of the car under the terms of the policy because he
was "on" the insured car at the time of the accident.
In Rohlman II, the Court of Appeals reached a similar
result. In that case, the policy language was analogous to
that used in the policy at issue in this case. It defined an
"occup[ant]" as a person who was "in, upon, getting in, on,
out or off" an insured vehicle. Rohlman II, supra at 350.
In interpreting this language, the Court of Appeals held
that, in the context of the policy's definition of "occupant,"
the term "upon" was merely a substitute for the term "on."
Accordingly, the Court held that a person who was completely
out or off the vehicle was not an occupant under the policy.
However, it also held that, where a person is injured while he
is in contact with an insured vehicle, he is "on" the vehicle
and an "occupant" of the vehicle for purposes of the insurance
contract.
C. APPLICATION
1. DEFENDANT 'S ENTITLEMENT TO SUMMARY DISPOSITION
Defendant moved for summary disposition under MCR
2.116(C)(10). A motion under that rule tests the legal
sufficiency of a claim. Veenstra v Washtenaw Country Club,
466 Mich 155, 163; 645 NW2d 643 (2002). "In reviewing a
motion for summary disposition brought under MCR 2.116(C)(10),
a trial court considers affidavits, pleadings, depositions,
6
admissions, and documentary evidence filed in the action or
submitted by the parties . . . ." Quinto v Cross & Peters Co,
451 Mich 358, 362; 547 NW2d 314 (1996). Summary disposition
is appropriate if the evidence demonstrates that there is no
genuine issue concerning any material fact and the moving
party is entitled to judgment as a matter of law. Haliw v
Sterling Hts, 464 Mich 297, 302; 627 NW2d 581 (2001).
When reviewing a motion for summary disposition, courts
are required to construe the facts in favor of the nonmoving
party, in this case, the plaintiff. Quinto, supra. Moreover,
courts may not assess credibility in considering whether to
grant the motion. Skinner v Square D Co, 445 Mich 153, 161;
516 NW2d 475 (1994). However, in this case, in reaching its
holding, the majority construes the facts in defendant's
favor.
At the hearing on defendant's motion for summary
disposition, plaintiff argued that his injuries occurred while
he was pinned between the cars. Defendant argued that
plaintiff sustained his injuries before he came into contact
with the insured auto. In support of their arguments, both
parties relied on statements that plaintiff made in reporting
the accident to the police. To determine whether this dispute
regarding the mechanism of plaintiff's injuries presents an
issue of material fact, we need only apply the majority's own
7
interpretation of the policy language.
The majority asserts that the sole reasonable
interpretation of "upon" in the context of this contract is
that it means simply "on." Ante at 10 n 2. It then concludes
that plaintiff did not suffer his injuries while he was "on"
the car.
However, Random House Webster's College Dictionary (2000
ed) indicates that "on" means: "so as to be or remain
supported by or suspended from . . . ." A person who is
pinned between two automobiles is supported by them. Thus,
plaintiff has alleged facts that, if believed by a jury, would
support a finding that plaintiff was "on" the insured
automobile at the time of the accident.
Given this analysis, I find unconvincing the majority's
bald assertion that substituting the word "on" for "upon"
necessitates a finding that the policy excludes coverage for
plaintiff's injuries.4
4
Although I have not joined in the majority's reliance on Rohlman II, I also have not
advanced the definition that the majority would assign to me. Ante at 10 n 2. I follow the
majority's own interpretation of this policy's language. In doing so, I agree that "upon" refers
to "occupying." However, "upon" is meant to define "occupying," not the other way around.
The Hastings policy provided:
II. PERSONAL INJURY PROTECTION COVERAGE INSURING
AGREEMENT
A. We will pay personal injury protection benefits to or for an
(continued...)
8
4
(...continued)
"insured" who sustains "bodily injury". The "bodily injury" must:
1. Be caused by accident; and
2. Result from the ownership, maintenance or use of an "auto" as an
"auto"
The Hastings policy also states that:
2. "Auto accident" means a loss involving the ownership, operation,
maintenance or use of an "auto" as an "auto" . . . .
An "insured" is
1. You or any "family member" injured in an "auto accident";
2. Anyone else injured in an "auto accident" :
a. While "occupying" "your covered auto"; or
b. If the accident involves any other "auto":
(1) Which is operated by you or any "family member"; and
(2) To which Part A of this policy applies.
c. While not occupying any "auto" if the accident involves "your
covered auto".
Consequently, neither of the plaintiffs in the majority's hypothetical example would recover
because, under the policy, there would not be a sufficient nexus between their injuries and
the insured vehicle.
Given the policy's limitations on liability, the majority's application of its definition
is arbitrary. Under its application, plaintiff would have been able to recover if he had stayed
in the vehicle and been injured when it was hit by the other car. However, because plaintiff
left the car to change the tire, plaintiff cannot recover, even if he sustained injuries while he
was on the car. I cannot accept that this was the intent of the parties when agreeing to this
policy.
The majority asserts that a person must be "on" a vehicle to be an occupant under the
Hastings policy. But it fails to explain why the straightforward application of its own
(continued...)
9
2. THE CONTINUED VIABILITY OF NICKERSON
The majority also holds that Nickerson was wrongly
decided because it departed from the language of the insurance
policy at issue there. It appears to me inappropriate for the
Court to make that decision given the Citizens Mutual policy
language.
That language differed significantly from the Hastings
language at issue in this case. Thus, I would reserve
judgment on the continuing viability of Nickerson until the
Court is presented with an issue regarding the interpretation
of the policy language in that case.
CONCLUSION
Plaintiff has presented a genuine question of material
fact concerning whether he was an occupant of the insured
vehicle at the time he was injured.
Viewing the evidence in the light most favorable to the
plaintiff, defendant has not established that it is entitled
to judgment in its favor as a matter of law. Regardless of
the definition advanced by the majority, the evidence adduced
at the hearing on defendant's motion for summary disposition
failed in this respect: it did not conclusively establish
that plaintiff was not "upon" the vehicle at the time of the
4
(...continued)
definition is inapplicable in this case.
10
accident.
If a jury believed the facts presented by plaintiff, it
could conclude that plaintiff was on the car when injured,
hence he was an occupant. It follows that summary disposition
was improper.
Accordingly, I would remand the case to the circuit court
for trial on the merits.
Marilyn Kelly
CAVANAGH, J.
I concur in the conclusion reached by Justice Kelly.
Michael F. Cavanagh
11
Rednour v. Hastings Mutual Insurance
Court: Michigan Supreme Court
Date filed: 2003-05-30
Citations: 661 N.W.2d 562, 468 Mich. 241
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