Opinion
Docket No. 79529.
Decided October 8, 1985. Leave to appeal denied, 424 Mich ___.
Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by James L. Borin), and Gromek, Bendure Thomas (by Daniel J. Wright), of counsel, for Allstate Insurance Company.
Kaufman Payton (by Donald L. Payton), for St. Cyprian Schools.
Before: BEASLEY, P.J., and J.H. GILLIS and M.J. KELLY, JJ.
This case involves the question of whether plaintiff was an "occupant" of a motor vehicle under Michigan's no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., when she was struck by a bus owned by defendant St. Cyprian Schools and driven by defendant James White. Our resolution of this issue is squarely governed by the Supreme Court's decision in Royal Globe Ins Cos v. Frankenmuth Mutual Ins Co, 419 Mich. 565; 357 N.W.2d 652 (1984), and we hold that plaintiff was not an "occupant" of a motor vehicle within the meaning of the no-fault act.
At approximately noon on March 26, 1981, plaintiff was driving her sister's automobile southbound on the Southfield Freeway when the hood of the car popped up, blocking her vision. Plaintiff stopped the car in the center lane of the freeway, exited from it and walked around to the front to close the hood. As she was standing outside the car, possibly walking toward the driver's door, the St. Cyprian school bus struck the rear of plaintiff's vehicle, which in turn struck plaintiff causing her serious injuries.
Neither defendants nor the owner of the automobile driven by plaintiff were insured. Plaintiff submitted an application for personal insurance protection benefits to the assigned claims facility which appointed Allstate Insurance Company as the insurer responsible for plaintiff's claim. Plaintiff subsequently brought suit against defendants seeking insurance benefits and damages for injuries. Allstate thereafter began to pay benefits to plaintiff.
On March 23, 1982, Allstate filed a cross-claim for indemnification against St. Cyprian Schools for benefits paid plaintiff and both parties subsequently moved for summary judgment. The parties agreed at the motion for summary judgment that, under the priority provisions of the no-fault act, Allstate would be liable for payment of plaintiff's insurance benefits if plaintiff was an occupant of her sister's car at the time of the accident, MCL 500.3114(4); MSA 24.13114(4), but that St. Cyprian would be liable for payment of plaintiff's benefits if plaintiff was not an occupant. MCL 500.3115; MSA 24.13115.
In granting summary judgment in favor of St. Cyprian, the court opined that the position of Allstate made better sense but that a decision in favor of St. Cyprian was required under the precedent of Nickerson v. Citizens Mutual Ins Co, 393 Mich. 324; 224 N.W.2d 896 (1975). Following the entry of the trial court's order of summary judgment and during the pendency of this appeal, however, the Supreme Court released its opinion in Royal Globe, supra, in which it rejected any application of its holding in Nickerson to the question of occupancy in the no-fault context. In Royal Globe, the Supreme Court construed the term "occupant" as used in the no-fault act according to its primary and generally understood meaning. While the opinion leaves undecided the status of "persons within and upon a motor vehicle as well as those entering into and alighting from it", 419 Mich. 576, it is eminently clear that the term occupant does not include a person who has exited from his or her motor vehicle and is standing outside the vehicle, several feet away from the door, when struck by another automobile. Id. This is the scenario presented in the instant case and we thus reverse the order of summary judgment entered in favor of St. Cyprian. See also Hawkins v. Allstate Ins Co, 421 Mich. 851; 362 N.W.2d 236 (1985), remanding 132 Mich. App. 603; 347 N.W.2d 760 (1984). We remand this case for entry of a summary judgment order in favor of Allstate.
Reversed and remanded.