                           STATE OF MICHIGAN

                           COURT OF APPEALS



VHS OF MICHIGAN, INC., doing business as                    UNPUBLISHED
DETROIT MEDICAL CENTER,                                     July 24, 2018

              Plaintiff-Appellee,

and

PATRICK GARDNER, by Guardian DAWN
GARDNER, and MICHIGAN SPINE AND
BRAIN SURGEONS, PLLC,

              Intervening Plaintiffs-Appellees,

and

BOTSFORD GENERAL HOSPITAL and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,

              Intervening Plaintiffs,

v                                                           No. 337616
                                                            Wayne Circuit Court
PROGRESSIVE MARATHON INSURANCE                              LC No. 15-009104-NF
COMPANY,

              Defendant,

and

GEICO INDEMNITY COMPANY,

              Defendant-Appellant.


Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.



                                              -1-
       Defendant, Geico Indemnity Company (defendant), appeals as of right an order
dismissing the case with prejudice1 in this first-party no-fault action.2 Defendant’s issue on
appeal relates to a prior order that denied defendant’s motion for summary disposition. For the
reasons set forth in this opinion, we affirm.

                                        I. BACKGROUND

        This appeal arises out of plaintiff’s requests for payment of PIP benefits on Patrick’s
behalf for injuries sustained by Patrick in a motor vehicle accident on February 28, 2015.3 On
the night of February 27, 2015, Patrick went to a casino with his cousin, Deon Edwards. They
left around 4:45 a.m. and during their ride home, Patrick’s black Ford Explorer stalled, and all of
the vehicle’s electricity went out, but it started back up again. Patrick left Edwards’s house in
Detroit to drop off another cousin, and Patrick told Edwards that he was going to try to make it
all the way home before his car stalled again.

        Randy Tung was driving on southbound Telegraph Road in the early morning hours on
February 28, 2015, from his home in Bloomfield Hills to a gas station that he owned in Garden
City. The speed limit in the area of Telegraph Road and Nine Mile Road was 50 miles per hour,
with four lanes of southbound travel. Tung was driving in the left lane around 6:10 a.m. or 6:15
a.m.,4 his headlights were on, and he was not distracted. He first saw Patrick’s Ford Explorer in
the far left lane when the Ford Explorer was only 20 feet in front of Tung, only a “split second”
or “less than one second” before impact. He did not see anyone standing next to the vehicle
immediately before the impact, nor did he recall a traffic light at the intersection, and said that he
was traveling in the range of upper 40s to 50 miles per hour, but he could have been driving
between 50 and 55 miles per hour. Tung testified that his car hit a large SUV that had no
blinking lights or emergency signals on and was “a color that you cannot see in the dark.”
        Photographs taken by an accident reconstructionist of the intersection showed Patrick’s
Ford Explorer almost directly underneath a traffic light, with an additional streetlight on a utility
pole nearby. The narrative on the police report indicates that Patrick’s Ford Explorer was
“STOPPED IN ROADWAY UNOCCUPIED,” Patrick exited his vehicle and stood nearby, and


1
  The parties stipulated to the entry of an order for dismissal and consent judgment so a final
order existed, and defendant could appeal the trial court’s denial of its motion for summary
disposition. If defendant does not receive relief on appeal, judgment will be entered in favor of
plaintiff and intervening plaintiffs.
2
  All claims against defendant, Progressive Marathon Insurance Company (Progressive), were
dismissed in the lower court, and Progressive is not a party on appeal. Hence, Geico Indemnity
Company will be referred to as “defendant” herein.
3
  From the outset we note that in defendant’s brief they recognize that because Gardner
intervened in this action, Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191;
895 NW2d 490 (2017) does not bar recovery to plaintiff Gardner.
4
  The police report is timestamped at 6:44 a.m., and Tung testified that the police may have
arrived at that time.


                                                 -2-
Tung collided with the Ford Explorer and Patrick. Patrick was taken from the scene by
ambulance to Botsford, where he stayed for 30 days, and was then transferred to a hospice
facility for another 30 days. Patrick died on October 26, 2016. Gardner testified that the Ford
Explorer was leased solely in Patrick’s name, and she had her own vehicle, which was insured by
defendant. It was ultimately determined that Patrick did not have insurance on his Ford
Explorer.

        On July 10, 2015, plaintiff filed a complaint against Progressive Insurance Company,
alleging that Progressive was the no-fault insurer of highest priority responsible for PIP benefits
on Patrick’s behalf pursuant to an automobile policy issued to Patrick. Plaintiff provided
medical products, services, and accommodations for Patrick’s care for bodily injuries that he
suffered in the car accident, which totaled $248,996.95. Plaintiff argued that Progressive’s
refusal to pay was a breach of the automobile insurance contract, as well as a violation of the no-
fault act, MCL 500.3101 et seq. On September 4, 2015, plaintiff filed an amended complaint to
make the same allegations against defendant. Plaintiff asserted that the amount that it was due
increased to $1,038,879.43 for medical services provided to Patrick up to that time without
clarifying what attributed to the large increase in costs. Defendant and Progressive each filed an
answer to the amended complaint denying liability for PIP benefits owed on Patrick’s behalf.

        On October 1, 2015, Gardner, as the guardian of Patrick, filed a motion to intervene,
which was granted by the trial court. Gardner filed an intervening complaint alleging that
Patrick underwent medical treatment, lost his employment, and needed attendant care as a result
of the injuries that he sustained in the accident, and neither insurer paid any of Patrick’s
allowable expenses and defendant “and/or” Progressive were the responsible insurers for
Patrick’s PIP benefits.5

        Responding to a motion by plaintiff for summary judgment, Progressive asserted that
Patrick’s alleged policy was fraudulently obtained, and therefore, void at the time of the
accident. Progressive asserted that Patrick was never insured with Progressive at any relevant
time because his policy was rescinded for failure to ever pay the premium. They claimed that an
unidentified individual tried to purchase several no-fault policies from Progressive on a computer
located at a public library, using false information and a fraudulent credit card. As no premium
was received, Patrick’s policy was rescinded on December 6, 2014 and thus, he was not insured
with Progressive on the day of the accident.

        Progressive and defendant also argued that Patrick’s vehicle was uninsured at the time of
the accident, and he could not recover PIP benefits. Moreover, Patrick’s vehicle was parked, and
PIP benefits are not available pursuant to MCL 500.3106(1)(a) unless the vehicle is parked in
such a way as to cause an unreasonable risk of the bodily injury that occurred. They argued that
Patrick’s vehicle was parked in the traveling section of the roadway without emergency flashers
or other indicators, so it was parked in such a way as to cause an unreasonable risk of bodily



5
  Prior to our Supreme Court’s ruling in Covenant Med Ctr, Inc, 500 Mich 191, the medical
facilities and providers listed in this matter were also allowed to intervene.


                                                -3-
injury. Also, they argued that Patrick’s vehicle was involved in the accident, Patrick was not a
pedestrian, and therefore, he was not eligible for PIP benefits.

        A hearing was held on defendant’s motion for summary disposition on July 15, 2016.
Progressive argued that, if Patrick was considered a pedestrian, and Patrick had no policy with
Progressive, then defendant was responsible for Patrick’s PIP benefits. Defendant argued that, if
there was no Progressive policy, then the vehicle was uninsured, and Patrick was not entitled to
first-party PIP benefits. Plaintiff argued that Patrick’s car was not involved in the accident and
that Tung’s testimony demonstrated that he could have avoided the collision because there were
three other lanes, it was well lit, he was traveling in the passing lane for an extended period of
time, and he was speeding.

        In rendering its decision, the trial court found that Patrick was in a motor vehicle collision
on February 28, 2015 after he exited his vehicle and left it in the left travel lane of Telegraph
Road. Patrick and his vehicle were struck by Tung, and Patrick suffered severe injuries, and was
in a coma. Patrick owned his Ford Explorer, and Gardner owned another vehicle that was
insured by defendant. At one point, Patrick’s car was insured by Progressive, but Progressive
asserted that it was fraudulent, and therefore, rescinded coverage. Defendant argued that only
two scenarios existed: (1) Patrick was the sole owner of an unreasonably parked vehicle, and
Progressive was responsible for benefits, or (2) Patrick was the sole owner of an unreasonably
parked and uninsured vehicle involved in an accident, so he was not entitled to any benefits from
any insurer. Defendant argued that Patrick’s vehicle was unreasonably parked and involved in
the accident, relying on the police report, which is inadmissible hearsay evidence. In addition,
discovery was still pending, so defendant’s motion for summary disposition was premature.
Therefore, the court denied defendant’s motion for summary disposition and plaintiff’s
countermotion for summary disposition. Then on February 27, 2017, defendant filed a motion to
approve the stipulated order for dismissal and consent judgment so that defendant could file an
appeal as of right and challenge the court’s denial of defendant’s motion for summary
disposition. This appeal then ensued.

                                          II. ANALYSIS

        On appeal, defendant argues that the trial court erred when it denied defendant’s motion
for summary disposition, and entered an order of judgment awarding PIP benefits, pending the
outcome of this appeal, to plaintiff. Defendant argues that it was entitled to summary disposition
because Patrick was injured while operating his uninsured vehicle, and Patrick’s vehicle was
involved in the accident because it was parked in a way that caused an unreasonable risk of
bodily injury, thereby precluding Patrick from receiving PIP benefits.

       As previously stated, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that (1) Patrick’s car was parked in such a way to cause an unreasonable
risk of bodily injury, and was, therefore, involved in the accident, precluding plaintiff from
recovering PIP benefits, and (2) Patrick’s vehicle was not insured at the time of the accident, so
he was barred from recovery. This Court reviews a motion for summary disposition de novo.
Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013).
This Court reviews only the evidence that was presented at the time the trial court made its
decision on the motion. Id. at 120. A motion for summary disposition under MCR 2.116(C)(10)

                                                 -4-
challenges the factual sufficiency of a plaintiff’s claim. Id. at 115. The trial court considers the
evidence in the light most favorable to the nonmoving party. Id. Summary disposition is proper
under MCR 2.116(C)(10) if “ ‘there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law.’ ” Id. at 116 (citation omitted). There is
a genuine issue of material fact “ ‘when the record, giving the benefit of reasonable doubt to the
opposing party, leaves open an issue upon which reasonable minds might differ.’ ” Id. (citation
omitted). When “the facts are undisputed, the determination of whether an automobile is parked
in such a way as to create an unreasonable risk of bodily injury within the meaning of [MCL
500.3106(1)(a)] is an issue of statutory construction for the court.” Wills v State Farm Ins Co,
437 Mich 205, 208; 468 NW2d 511 (1991). Issues of statutory construction are also reviewed de
novo. Stewart v State, 471 Mich 692, 698; 692 NW2d 376 (2004).

        Here, the trial court ruled that the parties were asking for summary disposition prior to
discovery and seemingly ruled that material questions of fact relevant to the central issue in this
case existed. As part of its ruling, the trial court allowed the parties to resubmit their respective
motions following the close of discovery, but, as previously described, the parties chose a
different course on which to proceed.

        The Michigan no-fault act requires the owner of a motor vehicle registered in this state to
“maintain security for payment of benefits under personal protection insurance, property
protection insurance, and residual liability insurance.” MCL 500.3101(1). The no-fault insurer
“is liable to pay benefits for accidental bodily injury arising out of the ownership, operation,
maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1). However, an
individual is excluded from receiving PIP benefits for an accidental injury if, at the time of the
accident, he or she owned the motor vehicle involved in the accident, and the no-fault insurance
required by MCL 500.3101 was not in effect. MCL 500.3113(b).

       MCL 500.3106(1) sets forth what the claimant must demonstrate to be entitled to benefits
in this matter: an injury resulting from an accident with a parked car, the claimant must
demonstrate:

       (1) his conduct fits one of the three exceptions of subsection 3106(1); (2) the
       injury arose out of the ownership, operation, maintenance, or use of the parked
       motor vehicle as a motor vehicle; and (3) the injury had a causal relationship to
       the parked motor vehicle that is more than incidental, fortuitous, or but for.
       [(citation omitted) (emphasis in original).]

        Thus, an individual may receive PIP benefits if the parked vehicle involved in the
accident was parked in such a manner as to cause an unreasonable risk of bodily injury. MCL
500.3106(1)(a). An individual is excluded from receiving PIP benefits for injuries involving
parked vehicles because such injuries do not normally involve the vehicle as a motor vehicle, but
rather, a parked vehicle is similar to any other stationary object, “such as a tree, sign post, or
boulder.” Shinn v Mich Assigned Claims Facility, 314 Mich App 765, 771; 887 NW2d 635
(2016). The parties do not dispute the fact that Patrick’s vehicle was parked at the time of the
accident, and Patrick had exited the vehicle.



                                                 -5-
        The exceptions to the exclusion for parked cars relate to a vehicle’s characteristics that
make it dissimilar to other stationary roadside objects that may be involved in accidents. Heard
v State Farm Mut Auto Ins Co, 414 Mich 139, 144-145; 324 NW2d 1 (1982). The exception in
MCL 500.3106(1)(a)

       concerns the act of parking a car, which can only be done in the course of using
       the vehicle as a motor vehicle, and recognizes that the act of parking can be done
       in a fashion which causes an unreasonable risk of injury, as when the vehicle is
       left in gear or with one end protruding into traffic.

                                              * * *
       Each of the exceptions to the parking exclusion thus describes an instance where,
       although the vehicle is parked, its involvement in an accident is nonetheless
       directly related to its character as a motor vehicle. The underlying policy of the
       parking exclusion is that, except in three general types of situations, a parked car
       is not involved in an accident as a motor vehicle. It is therefore appropriate to
       compensate injuries arising from its non-vehicular involvement in an accident
       within a system designed to compensate injuries involving motor vehicles as
       motor vehicles. [Miller v Auto-Owners Ins Co, 411 Mich 633, 640-641; 309
       NW2d 544 (1981) (emphasis in original), abrogation regarding the exception in
       MCL 500.3106(1)(b) recognized by Lefevers v State Farm Mut Auto Ins Co, 493
       Mich 960; 828 NW2d 678 (2013).]

       The exception in MCL 500.3106(1)(a) recognizes “degrees of risk” associated with a
parked vehicle. Stewart, 471 Mich at 697. “The statutory language does not create a rule that
whenever a motor vehicle is parked entirely or in part on a traveled portion of a road, the parked
vehicle poses an unreasonable risk.” Id. To determine whether a parked vehicle poses an
unreasonable risk, factors such as the manner, location, and fashion in which the vehicle is
parked should be considered. Id. at 699. Recognizing that the trial court was asked, prior to the
close of discovery, to make all of these findings, we find that material questions of fact that
preclude the granting of summary disposition pursuant to MCR 2.116(C)(10). Gorman, 302
Mich App at 116.

        We also recognize that MCR 2.116(C)(10) specifies that summary disposition is proper if
“there is no genuine issue as to any material fact, and the moving party is entitled to judgment …
as a matter of law,” seemingly, appellant is asking this Court to omit deciding the first prong of
the court rule and head directly to the second. (Emphasis added). However, in consideration of
this Court’s prior findings that it is liberal in finding a genuine issue of material fact, Jimkoski v
Shupe, 282 Mich App 1, 5; 763 NW2d 1 (2008), we hold that questions of fact abound as to
whether “[t]he vehicle was parked in such a way as to cause unreasonable risk of the bodily
injury which occurred.” MCL 500.3106(1)(a). Drake v Citizens Ins Co of America, 270 Mich
App 22, 33-34; 715 NW2d 387 (2006). Tung alleges that the street lights were not operational at
the time of the accident, it was “pitch dark,” there was no way he could see Gardner’s vehicle,
and Gardner’s vehicle was not near a traffic signal. Police reports, testimony of other witnesses
as well as other documentary evidence rebut Tung’s assertions. Hence, after review of the
record and giving the benefit of reasonable doubt to the opposing party, we find that genuine


                                                 -6-
issues of material facts exist in this record. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828
NW2d 634 (2013).

       Affirmed. Plaintiff having prevailed may tax costs. MCR 7.219(A).



                                                          /s/ Stephen L. Borrello
                                                          /s/ Michael J. Kelly
                                                          /s/ Mark T. Boonstra




                                              -7-
