                          STATE OF MICHIGAN

                            COURT OF APPEALS



SCOTT EICKHOFF,                                                      UNPUBLISHED
                                                                     April 18, 2017
               Plaintiff-Appellant,

v                                                                    No. 330671
                                                                     Wayne Circuit Court
FARM BUREAU GENERAL INSURANCE CO                                     LC No. 15-002436-NF
OF MI,

               Defendant-Appellee.


Before: SAWYER, P.J., and SAAD and RIORDAN, JJ.

PER CURIAM.

        In this case for first-party automobile no-fault benefits, plaintiff appeals as of right the
trial court’s order granting defendant’s motion for summary disposition pursuant to MCR
2.116(C)(10). We affirm.

        Plaintiff was injured while trimming trees from a basket lift attached to his truck, from
which he was ejected when a cable snapped and the boom and basket fell to the ground. Plaintiff
had parked the truck, put it in first gear, set the emergency brake, and put down the downriggers
on each side of the truck. Plaintiff testified at his deposition that the boom could not be operated
without putting the downriggers down, and he extended them enough to lift the truck’s
suspension a bit, but the tires remained on the ground. He was about 40 feet in the air and was
rotating the boom to the right when he heard the cable snap. The next thing he remembered was
being at the hospital, having a brace being taken off his right wrist; he had injured both arms and
his right hand. Defendant denied plaintiff’s claim for benefits based on its determination that
plaintiff did not satisfy the requirement in MCL 500.3105(1) and MCL 500.3106(1) that the
truck was being used “as a motor vehicle” at the time of the injury.

        Plaintiff’s complaint alleged that defendant had unreasonably refused to pay personal
protection insurance benefits. Shortly after plaintiff’s deposition was taken, defendant moved for
summary disposition pursuant to MCR 2.116(C)(10), arguing that no-fault benefits were not
available to plaintiff because he was not using the truck for transportational purposes at the time
of the accident. In making this argument, defendant cited McKenzie v Auto Club Ins Ass’n, 458
Mich 214, 215; 580 NW2d 424 (1998), and Minch v Auto Owners Ins Co, unpublished opinion
per curiam of the Court of Appeals, issued April 26, 2007 (Docket No. 273711). Plaintiff’s
response to the motion asserted that the cases were factually distinguishable and that Drake v

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Citizens Ins Co of America, 270 Mich App 22, 37-39; 715 NW2d 387 (2006), correctly criticized
McKenzie and that Minch was not binding precedent. At the hearing on the motion, the trial
judge eventually remarked that it could not find a distinction between the facts in this case and
Minch and without further explanation granted defendant’s motion.

        On appeal, plaintiff contends that the trial court erred in granting the motion for summary
disposition. “[W]here there is no dispute about the facts, the issue whether an injury arose out of
the use of a vehicle is a legal issue for a court to decide and not a factual one for a jury.”
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 630; 563 NW2d 683 (1997),
citing Krueger v Lumbermen’s Mut Cas & Home Ins Co, 112 Mich App 511, 515; 316 NW2d
474 (1982). A legal question is reviewed de novo by this Court. In re Petition of Attorney
General for Investigative Subpoenas, 274 Mich App 696, 698; 736 NW2d 594 (2007).

        Pursuant to MCL 500.3105(1), an insurer is liable to pay personal protection benefits for
“accidental bodily injury arising out of the ownership, maintenance or use of a motor vehicle as a
motor vehicle,” subject to other provisions of the act. The analysis for determining no-fault
benefits under this provision involves a determination (1) whether the injury is covered, i.e.,
whether it is “accidental,” “bodily,” and arises out of the “ownership, operation, maintenance or
use of a motor vehicle as a motor vehicle”; and (2) whether the injury is subject to an exclusion
and an exception to the exclusion. Drake v Citizens Ins Co of America, 270 Mich App 22, 25;
715 NW2d 387 (2006). “Injuries involving parked vehicles do not normally involve the vehicle
as a motor vehicle.” Miller v Auto-Owners Ins Co, 411 Mich 633, 639; 309 NW2d 544 (1981).
When the vehicle is parked, MCL 500.3106(1) provides that coverage is allowed only when one
of the following conditions is met:

              (a) The vehicle was parked in such a way as to cause unreasonable risk of
       the bodily injury which occurred.

              (b) Except as provided in subsection (2) [in cases where worker’s
       compensation laws provide benefits], 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) Except as provided in subsection (2), the injury was sustained by a
       person while occupying, entering into, or alighting from the vehicle. [MCL
       500.3106(1).]

The requirements of both MCL 500.3105 and MCL 500.3106 “must be met in order for liability
for injuries connected to a parked vehicle to arise.” Johnston v Hartford Ins Co, 131 Mich App
349, 357; 346 NW2d 549 (1984).

       The only element at issue in this case is whether plaintiff’s injury arose out of the “use of
a motor vehicle as a motor vehicle.” In McKenzie, 458 Mich at 215, the Michigan Supreme
Court reasoned that the Legislature’s express requirement that the vehicle be “used ‘as a motor
vehicle,’ i.e., to get from one place to another,” meant that


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       the Legislature wanted to except those other occasions, rare as they may be, when
       a motor vehicle is used for other purposes, e.g., as a housing facility of sorts, as an
       advertising display (such as at a car dealership), as a foundation for construction
       equipment, as a mobile public library, or perhaps even when a car is on display in
       a museum. [Id. at 218-219.]

The McKenzie Court concluded that the Legislature intended coverage only for “injuries
resulting from the use of motor vehicles when closely related to their transportational function
and only when engaged in that function.” Id. at 220. Ultimately, the Court concluded that
because the plaintiff’s injury occurred when he was using his camper/trailer as sleeping
accommodations, too far removed from its transportational function, no coverage was triggered
under the no-fault act. Id. at 226.

        This “transportational function” test of MCL 500.3105(1) was not satisfied in Rice v Auto
Club Ins Ass’n, 252 Mich App 25, 37-38; 651 NW2d 188 (2002), in which the driver of a fueling
truck fell from a ladder while fueling a steel hauler that unexpectedly moved. The plaintiff had
not argued that the steel hauler was a motor vehicle, so coverage would be available only if the
plaintiff’s parked fuel truck satisfied the requirements of both MCL 500.3105(1) and MCL
500.3106(1). Id. This Court concluded that “the fuel truck’s relationship to the accident as a
whole was merely coincidental and that its transportational function had no connection to the
accident at all.” Id. at 38. However, in Drake, 270 Mich App at 24, 28-29, where the plaintiff
was injured by grain-pumping equipment on his truck while he was delivering a load of grain,
the majority opinion emphasized that the plaintiff’s grain truck was immediately drivable, and
“no transformation or mechanical alteration was necessary before it could begin unloading
grain,” such as removing stabilizers.

        Although not binding precedent, we feel compelled to briefly discuss Minch since the
trial court relied on the decision in summarily granting summary disposition to defendant. The
plaintiff “was injured while trimming a tree, when he fell from a bucket attached to a boom that
was permanently mounted to his truck.” Applying the analysis from McKenzie, which indeed
“remains controlling,” the majority opinion concluded that the plaintiff’s truck “was not being
used as a motor vehicle at the time of plaintiff’s injury [but] was being used as a foundation for
tree-trimming equipment.” Minch, unpub op at 1-2. The majority also found Drake
distinguishable: “[A]t most, it indicates that the transportational function of a delivery truck
includes the process of depositing the product. That holding does not suggest that the
transportational function of a motor vehicle includes vertical movement of a bucket on a boom
attached to a motor vehicle.” Minch, unpub op at 2.

       Plaintiff contends that Minch can be distinguished based on the fact that he was injured
by being in direct contact with equipment permanently mounted on his vehicle, rather than by
contacting the ground after toppling from the bucket, and thus MCL 500.3106(1)(b) is satisfied.
However, Minch was not decided on the basis that no exception applied but rather that MCL
500.3105(1) was not satisfied because the truck was being used as a foundation for tree-trimming
equipment. McKenzie requires plaintiff to satisfy this element in addition to one of the
exceptions of MCL 500.3106(1). While plaintiff’s truck can be used to transport him from job to
job and to haul away debris, that is not how it was being used at the time of the injury. Instead, it
was being used a foundation for tree-trimming equipment. Plaintiff provides no explanation why

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his truck, like the truck in Minch, did not lack a transportational function at the time of the
accident. Therefore, we cannot find that the trial court erred in granting summary disposition
based on the arguments presented on appeal.

       Affirmed.



                                                          /s/ David H. Sawyer
                                                          /s/ Henry William Saad
                                                          /s/ Michael J. Riordan




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