Circuit Court. LC No. 2012-004598-NI.
TALBOT, P.J., and WILDER and FORT HOOD, JJ.
Mich.App. 260] Kurtis T. Wilder, J.
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.
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.
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.
either scenario, it is undisputed that the truck was being
driven by Kathleen
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.
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). 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."
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.
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.
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
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,
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).
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.
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