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Walega v. Walega

Court of Appeals of Michigan

September 10, 2015

CHARLES WALEGA, Plaintiff-Appellee,

          Macomb Circuit Court. LC No. 2012-004598-NI.

         Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.


Page 911

          [312 Mich.App. 260] Kurtis T. Wilder, J.

         In this action for no-fault benefits, defendant, Farm Bureau Insurance Company, appeals as of right from a stipulated order entering judgment for plaintiff, Charles Walega, in the amount of $75,000. The stipulated order preserved defendant's right to appeal the trial court's grant of summary disposition in favor of plaintiff and the trial court's denial of defendant's motion for reconsideration. Because we conclude that plaintiff's injury arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, we affirm.

         On November 2, 2011, plaintiff, with the assistance of his wife, Kathleen Walega, was moving a gun safe that weighed more than 1500 pounds. It is undisputed that plaintiff's truck was being used to help move the safe. However, there is a factual dispute regarding how the safe was being moved and the location of the safe at the time the injury occurred.

         According to defendant, the safe had been attached to the truck's trailer hitch by a rope, but was still on [312 Mich.App. 261] the ground while it was being moved. Defendant relies on medical records, as well as a statement posted on Facebook by Kathleen after the accident, which indicate that Kathleen was driving the truck with the safe attached to the trailer hitch by the rope. While the truck was dragging the safe out of the garage onto the driveway, the safe struck uneven concrete, causing it to flip over and land on plaintiff's leg. Plaintiff and Kathleen, however, testified at their depositions that the safe was already partially loaded onto the bed of the truck, and that when the truck hit the uneven portion of the driveway, the safe fell out of the truck and onto plaintiff's leg.

         Under either scenario, it is undisputed that the truck was being driven by Kathleen

Page 912

at the time the safe fell and landed on plaintiff's leg. It is also undisputed that following the injury, plaintiff underwent multiple surgeries before his left leg was eventually amputated below the knee.

         On March 2, 2012, plaintiff sought personal protection insurance (PIP) benefits from defendant. In seeking the benefits, plaintiff claimed that the injury occurred when Kathleen accelerated the truck over the pavement, causing the safe to fall off the bed of the truck. Plaintiff also claimed that even if the rope had broken before the truck had been moved, he would still be entitled to benefits under MCL 500.3106(1)(b).[1] On April 4, 2012, defendant informed plaintiff's attorney that it disagreed that plaintiff would be entitled to PIP benefits if the fall occurred during " preparation for [312 Mich.App. 262] loading and before loading itself." Defendant also noted factual discrepancies regarding what occurred, indicated that in the absence of under-oath examination the investigation could not be advanced, and stated that PIP benefits would not be provided because plaintiff had " not provide[d] reasonable proof of coverage of the claim."

         Plaintiff initiated the instant lawsuit on October 9, 2012. Following discovery and other matters, plaintiff filed his motion for summary disposition under MCR 2.116(C)(10) on September 5, 2013. Plaintiff argued that he was entitled to coverage under MCL 500.3105 because, even under defendant's version of the facts, plaintiff was attempting to tow the safe with the moving truck. Trucks are routinely used to transport heavy objects. Further, the moving truck did not merely represent the location of the injury. Rather, the injury was directly related to the use of the truck as a mode of transportation.

         Defendant filed its response on September 16, 2013, arguing that plaintiff's injuries did not arise out of the transportational function of a motor vehicle because the truck was either being used as an immobile anchor point for the rope or was pulling the skidding safe. Defendant claimed that the truck was being used as a tool and was not being driven on a public roadway. Defendant also argued that if the facts of the loss were as stated by Kathleen, then plaintiff made misrepresentations and the policy was void. Accordingly, defendant argued, there was a genuine issue of material fact, and summary disposition was not warranted.

         Without holding oral argument, the trial court granted plaintiff's motion for summary disposition, in part, on September 30, 2013. The trial court ruled that [312 Mich.App. 263] plaintiff was entitled to PIP benefits under either plaintiff's version or defendant's version of events:

As noted, plaintiff has attributed the accident to the process of loading the safe into his truck. He then planned to drive the safe to a buyer. Under these circumstances, plaintiff would be entitled to PIP benefits. MCL 500.3106(1)(b).
Defendant Kathleen Walega posted a Facebook entry on November 5, 2011 describing the accident as happening while the safe was being moved from the garage. Under this version, plaintiff had tied a rope around the safe and defendant Kathleen Walega was using the truck to pull the safe from the garage so it could be loaded into the truck. As the safe dragged across the driveway,

Page 913

it hit a raised portion of pavement and tipped over onto plaintiff's foot. Under these circumstances, plaintiff would also be entitled to PIP benefits because the truck was being used (i.e., was not parked) to move the safe--even if for a short distance--and the safe was connected to the truck. McKenzie v Auto Club Ins Ass'n, 458 Mich. 214; 580 N.W.2d 424 (1998) (coverage applicable if use of vehicle is closely related to its transportational function at time of injury); see also Block v Citizens Ins Co of America, 111 Mich.App. 106; 314 N.W.2d 536 (1981) (no coverage when accident occurs while carrying items to vehicle and there is no actual connection to vehicle).

         The trial court went on to state, however, that defendant's fraud claim, based on allegations that Kathleen changed her story to support plaintiff's version of events, was a defense that had to be decided by a jury. The trial court also concluded that plaintiff's asserted damages were subject to reasonable dispute.

         On October 22, 2013, defendant sought reconsideration and clarification of the trial court's order. Defendant argued, inter alia, that the trial court did not address the possible use of the motor vehicle as an anchor point and requested clarification based on the [312 Mich.App. 264] trial court's apparently contradictory ruling that ...

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