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holding that there was a question of fact about whether the plaintiff's contact with the ice directly resulted in the injury he sustained when the stairway he was descending collapsed as he was carrying a 50–pound block of ice to load it onto his truck
Summary of this case from Kemp v. Farm Bureau Gen. Ins. Co. of Mich.Opinion
Docket No. 66718.
Decided February 21, 1984. Leave to appeal applied for.
Frank R. Langton Associates, P.C. (by William J. McNally), for plaintiff.
Holahan, Malloy, Maybaugh Monnich (by J. Michael Malloy, III), for defendants.
Plaintiff was seriously injured when a short stairway he was descending collapsed as he held a 50-pound block of ice over his head in an effort to load it onto his parked truck. Plaintiff filed a claim for no-fault benefits. Defendant insurance carriers denied the claim and a lawsuit was filed. Thereafter, the trial court granted defendants' motion for summary judgment, GCR 1963, 117.2(3). Plaintiff filed an application for leave to file a delayed appeal from the trial court's ruling, which was granted by this Court.
Plaintiff claims that the trial court erred as a matter of law in ruling that his injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). Specifically, plaintiff claims that he is entitled to no-fault benefits under both subsection (b) and (c) of MCL 500.3106; MSA 24.13106.
"Sec. 3106. Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle."
We hold that plaintiff's claim that he is entitled to benefits under MCL 500.3106(b) is meritorious. In Arnold v Auto-Owners Ins Co, 84 Mich. App. 75; 269 N.W.2d 311 (1978), lv den 405 Mich. 804 (1979), the plaintiff ruptured a disc in his back while he was lifting a ramp onto the upper deck of his employer's truck. Defendant insurance companies contended that the injury was not compensable under § 3106(b) because it was not caused by physical contact with the equipment permanently mounted on the vehicle. This Court reversed the lower court's grant of summary judgment for the insurance companies, holding:
"[W]e conclude that § 3106(b) makes compensable injuries which are a direct result of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process." Arnold, supra, p 80.
We find that whether or not plaintiff is entitled to benefits for any injury that occurs while, and not as a result of, loading property onto a vehicle is an open question. Cf. Block v Citizens Ins Co of America, 111 Mich. App. 106; 314 N.W.2d 536 (1981); Dembinski v Aetna Casualty Surety Co, 76 Mich. App. 181; 256 N.W.2d 69 (1977).
Additionally, we find that it is a question of fact whether plaintiff's contact with the ice directly resulted in his injury. It appears that plaintiff was injured when the stairs collapsed under him as he held a block of ice over his head while in the process of loading his truck. The stairway broke because of the combined weight of plaintiff and the block of ice. Defendant's brief admits that "[l]ogic would dictate that the stairway gave way under the weight of the plaintiff and the block of ice". In that respect, applying the commonly approved usage of the language, "physical contact" with the "property being lifted" during the loading process could arguably have "directly resulted" in causing plaintiff's injury. The weight of the ice may have been the straw that broke the camel's back.
For the above stated reasons, we hold that summary judgment was improperly granted under MCL 500.3106(b).
Plaintiff's claim that he is entitled to benefits under MCL 500.3106(c) is without merit. Subsection (c) is not applicable because the plaintiff was not occupying, entering into, or alighting from the truck when he was injured. Dowdy v Motorland Ins Co, 97 Mich. App. 242, 247-252; 293 N.W.2d 782 (1980). As such, summary judgment on this ground was proper.
Reversed.