Muskegon CC: 14-049544-NI
Bridget M. McCormack, Chief Justice, David F. Viviano, Chief
Justice Pro Tem, Stephen J. Markman, Brian K. Zahra, Richard
H. Bernstein, Elizabeth T. Clement Megan K. Cavanagh,
Justices.
ORDER
On
order of the Court, the application for leave to appeal the
June 28, 2018 judgment of the Court of Appeals is considered,
and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
Zahra,
J. (dissenting).
I would
grant the application and revisit this Court's opinion in
Miller v. Auto-Owners Ins Co., 411 Mich. 633 (1981),
which was disavowed in part by Frazier v Allstate Ins
Co., 490 Mich. 381 (2011). In Miller, this
Court held that an insured is entitled to compensation under
the no-fault act, MCL 500.3101 et seq., for an
injury sustained while performing "maintenance" of
his or her vehicle without regard to whether the vehicle
might be considered "parked" at the time of the
injury. The Court concisely explained:
There is an apparent tension between these two sections [MCL
500.3105 and MCL 500.3106] of the no-fault act: requiring, on
the one hand, compensation for injuries incurred in the
maintenance of a vehicle [MCL 500.3105] but not requiring, on
the other hand, compensation for injuries incurred in the
maintenance of a parked vehicle, with three
exceptions [MCL 500.3106]. Since most, if not all,
maintenance is done while the vehicle is parked, and since
the three exceptions appear addressed to circumstances
unrelated to normal maintenance situations, a conflict
appears. [Miller, 411 Mich. at 637-638.]
In
Miller, the insurer invited the Court to
"distinguish among parked vehicles according to whether
they were parked involuntarily, as when a driver pulls onto
the shoulder to repair a flat tire, or voluntarily, as in
Miller's case." Id. at 638. Noting that
"[s]uch a distinction, however, would often be difficult
to draw," the Court declined to resolve the issue
"solely by focusing on the term 'parked' . . .
." Id.
I tend
to agree with Miller that the insurer's argument
in that case was not persuasive, mostly, in my view, because
there is no statutory basis to distinguish between cars
parked voluntarily or involuntarily. But I disagree that the
term "parked" should not be considered, and I
certainly do not agree with Miller's decision to
ignore the term altogether ("Compensation is thus
required . . . without regard to whether his vehicle might be
considered 'parked' at the time of injury,"
id. at 641). The relevant common definition of
"park" at the time was "to halt (one's
vehicle) with the intention of not using it again
immediately." The Random House College
Dictionary (1975). There is clearly a temporal component
to the term that suggests that the vehicle may continue to be
used as a motor vehicle. But to hold, as did the Court in
Miller and several other published cases, that a
vehicle which cannot be operated is "parked"
extends the term well beyond its ordinary meaning. So, in
Miller, for instance, the plaintiff was severely
injured when his automobile fell on his chest while he was
attempting to replace a pair of shock absorbers. The vehicle
was obviously not parked because it could not be driven at
the time.
Consider
some of the many cases in which an insured is injured while
performing maintenance: Mich Basic Prop Ins Ass'n v.
Mich. Mut Ins Co, 122 Mich. App. 420 (1983) (insured
injured while removing an exhaust manifold); Great
American Ins Co. v. Old Republic Ins Co, 180 Mich. App.
508 (1989) (insured injured while using cutting torch to cut
off metal pins that were holding hydraulic cylinders in
place); Wagner v. Mich. Mut Liability Ins Co., 135
Mich. App. 767 (1983) (insured injured while warming oil pan
with charcoal fire); Stanley v. State Auto Mut Ins
Co., 160 Mich. App. 434 (1987) (insured injured by car
falling off jack); Yates v. Hawkeye-Security Ins
Co., 157 Mich. App. 711 (1987) (insured injured
preparing to tow disabled vehicle); Kudek v. Detroit Auto
Inter-Ins Exch, 100 Mich. App. 635 (1980), rev'd 414
Mich. 956 (1982) (insured injured while working on wheel
assembly when tire exploded); Mack v. Travelers Ins
Co., 192 Mich. App. 691 (1992) (insured injured while
pouring oil into engine); Hackley v. State Farm Mut Auto
Ins Co., 147 Mich. App. 115 (1985) (insured injured
while inspecting engine for cause of stalling).
In all
these cases, the maintenance was being performed on
inoperable vehicles at the time the insureds were injured. In
my view, none of these vehicles were "parked" in
the common sense of the term. In each circumstance, a person
can ask themselves, if they had been given the key to drive
the vehicle, whether they would consider the inoperable
vehicle "parked." I submit the reasonable answer
would be no.
Further,
this understanding is entirely consistent with the parked-car
exceptions contained in MCL 500.3106. "Each exception
pertains to injuries related to the character of a parked
vehicle as a motor vehicle-characteristics which make it
unlike other stationary roadside objects that can be involved
in vehicle accidents." Miller, 411 Mich. at
640. But the characteristics of an inoperable motor vehicle
are in fact like other stationary roadside objects
that can be involved in vehicle accidents. While I understand
that giving meaning to the term "parked" in this
context is not an easy task, I think this Court ought to
attempt to do so before resorting to the "absurd
results" doctrine. In other words, given that the term
"parked" obviously does not refer to inoperable
vehicles, I cannot conclude that" 'the absurdity and
injustice of applying the provision to the case would be so
monstrous, that all mankind would, without hesitation, unite
in'" ignoring the term "parked." ...