Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 12, 2013                                                                     Robert P. Young, Jr.,
                                                                                                Chief Justice

  144781                                                                              Michael F. Cavanagh
                                                                                      Stephen J. Markman
                                                                                          Mary Beth Kelly
                                                                                           Brian K. Zahra
  CHARLES ANTHONY LEFEVERS,                                                        Bridget M. McCormack
           Plaintiff-Appellee,                                                           David F. Viviano,
                                                                                                     Justices
  v                                                        SC: 144781
                                                           COA: 298216
                                                           Wayne CC: 08-116325-NF
  STATE FARM MUTUAL AUTOMOBILE
  INSURANCE COMPANY,
           Defendant-Appellant,
  and
  TITAN INSURANCE COMPANY, ZURICH
  AMERICAN INSURANCE COMPANY,
  STEADFAST INSURANCE COMPANY,
  CLARENDON NATIONAL INSURANCE
  COMPANY and REDLAND INSURANCE
  COMPANY,
            Defendants.

  ____________________________________/

          On March 7, 2013, the Court heard oral argument on the application for leave to
  appeal the December 13, 2011 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to
  appeal, we VACATE the December 13, 2011 judgment of the Court of Appeals and the
  January 31, 2012 order of the Court of Appeals denying the motion for reconsideration,
  and REMAND this case to the Wayne Circuit Court for further proceedings. The Court
  of Appeals erred by failing to recognize that the decision in Frazier v Allstate Ins Co, 490
  Mich 381 (2011), effectively disavowed Miller v Auto-Owners Ins Co, 411 Mich 633
  (1981), and Gunsell v Ryan, 236 Mich App 204 (1999), to the extent those decisions are
  inconsistent with Frazier. Specifically, Frazier effectively disavowed as dicta the
  portion of Miller, supra, stating: “Section 3106(b) recognizes that some parked vehicles
  may still be operated as motor vehicles, creating a risk of injury from such use as a
  vehicle. Thus a parked delivery truck may cause injury in the course of raising or
  lowering its lift or the door of a parked car, when opened into traffic, may cause an
  accident. Accidents of this type involve the vehicle as a motor vehicle.” 411 Mich at
  640. Frazier also effectively disavowed the discussion of MCL 500.3106(1)(b) in
  Gunsell, supra, 236 Mich App at 210 n 5.
          On remand, the circuit court shall reconsider the defendant’s motion for summary
  disposition in light of Frazier, and shall allow the parties to expand the evidentiary record
  to the extent necessary for a determination whether the tailgate on the plaintiff’s dump
  trailer was “equipment permanently mounted on the vehicle” for purposes of MCL
  500.3106(1)(b). For example, the parties shall be allowed to present evidence as to
  whether the tailgate was a constituent part of the “means in or by which [the
  contaminated soil was] carried or conveyed,” and, if not, whether the tailgate was
                                                                                           2

nonetheless an “article[], implement[], etc.,” that was “mounted on the vehicle” and
“used or needed for a specific purpose or activity.”

       CAVANAGH, J. (dissenting).

     I respectfully dissent from the majority’s decision to vacate the Court of Appeals’
judgment and remand the case to the trial court for further factual development.

       In Frazier v Allstate Ins Co, 490 Mich 381, 385 (2011), a majority of this Court
held that the “constituent parts of ‘the vehicle’ itself are not ‘equipment’” for the
purposes of MCL 500.3106(1)(b). 1 The majority reasoned that excluding the constituent
parts of a vehicle from the definition of “equipment” prevented that definition from
“engulf[ing]” the definition of “vehicle.” Id. Accordingly, the majority held that the
passenger door of a noncommercial vehicle was a constituent part of the vehicle itself,
not equipment. Id. at 386. The Frazier majority, however, only considered the outer
bounds of what parts of a vehicle should be excluded from the definition of “equipment”
under MCL 500.3106(1)(b). As a result, the particularities of what amounts to a
constituent part of the vehicle, on one hand, and what amounts to equipment, on the other
hand, was left unanswered by Frazier. Indeed, the Frazier majority found it unnecessary
to define the term “constituent” within the context of its analysis under MCL
500.3106(1)(b), and the majority fails to do so in its order today. 2




1
 Given the majority’s decision to remand this case to the trial court, I express no opinion
about the merits of the Frazier majority’s interpretation of MCL 500.3106.
2
  To resolve whether the tailgate on plaintiff’s dump trailer was “equipment permanently
mounted on the vehicle” for the purposes of MCL 500.3106(1)(b), the majority remands
the case to the trial court. But I question whether further factual development is needed
to resolve this case. Instead of factual uncertainty, I believe that the difficulties in this
case arise from the fact that the tailgate at issue stands in stark contrast to the passenger
door considered by the Frazier majority—a point that the Court of Appeals, when
denying defendant’s motion for reconsideration in light of the majority opinion in
Frazier, has already discussed in distinguishing Frazier. Thus, without greater
elaboration from this Court regarding Frazier’s interpretation of MCL 500.3106(1)(b), I
question the benefit of a remand.
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       Moreover the majority’s order assumes that the application of Frazier is
straightforward and, under that guise, imposes a two-step analysis that will have the
parties first address whether the tailgate was a “constituent part of the ‘means in or by
which [the contaminated soil was] carried or conveyed,’” and only if that question is
answered in the negative will the parties be permitted to address the “specific purpose” of
the tailgate as alleged equipment. I am uncertain regarding whether this two-step
analysis was clearly contemplated by the Frazier majority, and such an analysis has the
potential to result in an overly narrow definition of “equipment” that may be inconsistent
with MCL 500.3106(b)(1).

       Thus, I dissent from the majority’s order because it leaves the parties and the
courts below without a firm resolution of the issues that this Court asked the parties to
address 3 and may result in an erroneous interpretation of MCL 500.3106(b)(1).




3
  See, also, Ile v Foremost Ins Co, 493 Mich 915, 915-916 (2012) (MARILYN KELLY, J.,
dissenting).




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 12, 2013                      _________________________________________
       h0409                                                                 Clerk
