            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



SANDRA GUNTZVILLER,                                                UNPUBLISHED
                                                                   February 5, 2019
              Plaintiff-Appellant,

v                                                                  No. 338982
                                                                   Wayne Circuit Court
CITY OF DETROIT,                                                   LC No. 17-001950-NO

              Defendant-Appellee.


Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.

PER CURIAM.

        Plaintiff, Sandra Guntzviller, appeals as of right the order of the trial court granting
summary disposition in favor of defendant, City of Detroit, of plaintiff’s claim for personal
protection insurance (PIP) benefits under Michigan’s no-fault act, MCL 500.3101 et seq. We
affirm.

                                           I. FACTS

        This case arises from plaintiff’s claim that she was injured on May 12, 2011, after Andre
George, one of defendant’s bus drivers, removed her from one of defendant’s buses. The parties
agree that on that day George was operating one of defendant’s buses. As he approached the bus
stop where plaintiff was waiting, George apparently recognized her as a person who previously
had harassed other passengers on the bus. George stopped the bus at the bus stop and allowed a
passenger to board, but attempted to close the bus doors to prevent plaintiff from entering the
bus. Plaintiff, however, forced open the doors and entered the bus. When George informed her
that she was not allowed on the bus, plaintiff sprayed George and another passenger with pepper
spray. George physically removed plaintiff from the bus, then drove the bus a short distance to
seek medical treatment for himself and the passenger who had been assaulted by plaintiff. The
parties do not dispute that the bus was parked when George removed plaintiff from the bus.
Plaintiff was treated at a hospital from May 13 to May 16, 2011, and was diagnosed with rib
fractures and a collapsed lung, which she alleged she received as a result of being assaulted by
George.
        Plaintiff initiated an action in the trial court, seeking PIP benefits under the no-fault act.
Defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10), arguing that
plaintiff had not established entitlement to benefits under the act. The trial court granted
defendant’s motion, dismissing plaintiff’s complaint. Plaintiff now appeals.

                                         II. DISCUSSION

        Plaintiff contends that the trial court erred in granting defendant summary disposition,
and argues that the trial court incorrectly determined that her injuries were not “closely related to
the transportational function” of defendant’s bus. We disagree.

        We review de novo the trial court’s decision to grant or deny summary disposition.
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). In so doing, we review
the entire record to determine whether the moving party was entitled to summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Issues of statutory construction
are also reviewed de novo. Madugula v Taub, 496 Mich 685, 695; 853 NW2d 75 (2014).

       In this case, defendant moved for summary disposition under MCR 2.116(C)(7), (8), and
(10). Although the trial court did not specify under which section it granted defendant’s motion
for summary disposition, “[w]here the parties rely on documentary evidence in support of their
arguments, appellate courts proceed under the standards of review applicable to a motion made
under MCR 2.116(C)(10).” In re Miltenberger Estate, 275 Mich App 47, 50; 737 NW2d 513
(2007). We therefore consider all documentary evidence submitted by the parties in the light
most favorable to the nonmoving party. Dawoud v State Farm Mut Auto Ins Co, 317 Mich App
517, 520; 895 NW2d 188 (2016). Summary disposition under MCR 2.116(C)(10) is warranted
when there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Id. When a motion is made and supported under MCR
2.116(C)(10), the burden shifts to the nonmoving party to show, by affidavits or other
documentary evidence, that there is a genuine issue of material fact. MCR 2.116(G)(4); Quinto v
Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). If the nonmoving party does not
make such a showing, summary disposition is properly granted. Id. at 363.

        The purpose of Michigan’s no-fault act is “to ensure the compensation of persons injured
in automobile accidents.” Allstate Ins Co v State Farm Mut Auto Ins Co, 321 Mich App 543,
552; 909 NW2d 495 (2017) (citation omitted). The act requires no-fault automobile insurers to
provide PIP benefits for certain injuries related to a motor vehicle. Kemp v Farm Bureau Gen
Ins Co of Mich, 500 Mich 245, 252; 901 NW2d 534 (2017). In that regard, MCL 500.3105(1)
provides the initial scope of coverage for PIP benefits, stating that “an 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, subject to the provisions of this chapter.” Kemp, 500 Mich
at 252.

        A no-fault insurer, however, generally is not obligated to pay first-party PIP benefits for
injuries involving a parked vehicle, because such injuries usually do not involve use of the
vehicle as a motor vehicle. See Stewart v Michigan, 471 Mich 692, 698; 692 NW2d 376 (2004).
When the injury alleged involves a parked motor vehicle, coverage generally is excluded unless


                                                 -2-
the plaintiff demonstrates that one of the three statutory exceptions of MCL 500.3106(1) applies.
Kemp, 500 Mich at 252. That section provides:

       (1) Accidental bodily injury does not arise out of the ownership, operation,
       maintenance, or use of a parked vehicle as a motor vehicle unless any of the
       following occur:

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

              (b) . . . [T]he 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) . . . [T]he injury was sustained by a person while occupying, entering
       into, or alighting from the vehicle. [MCL 500.3106(1).]

        In Stewart, our Supreme Court further explained the public policy underlying the parked
vehicle exclusion:

               Injuries involving parked vehicles do not normally involve the vehicle as
       a motor vehicle. Injuries involving parked vehicles typically involve the vehicle
       in much the same way as any other stationary object (such as a tree, sign post or
       boulder) would be involved. There is nothing about a parked vehicle as a motor
       vehicle that would bear on the accident.

              The stated exceptions to the parking exclusion clarify and reinforce this
       construction of the exclusion. 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.
       [Stewart, 471 Mich at 698, quoting Miller v Auto-Owners Ins Co, 411 Mich 633,
       639-641; 309 NW2d 544 (1981), 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).]

        Our Supreme Court has provided a three-step analysis to determine coverage of injuries
related to parked motor vehicles:

       First, the claimant must demonstrate that his or her “conduct fits one of the three
       exceptions of subsection 3106(1).” Second, the claimant must show that “the
       injury arose out of the ownership, operation, maintenance, or use of the parked
       motor vehicle as a motor vehicle[.] Finally, the claimant must demonstrate that
       the “injury had a causal relationship to the parked motor vehicle that is more than
       incidental, fortuitous, or but for.” [Kemp, 500 Mich at 253 (citations omitted).]




                                               -3-
                                      A. MCL 500.3106(1)(c)

       Addressing the first factor, plaintiff in this case contends that her injuries were incurred
while “alighting from” the parked bus, and that her conduct therefore falls within MCL
500.3106(1)(c). In Frazier v Allstate Ins Co, 490 Mich 381, 385-386; 808 NW2d 450 (2011),
our Supreme Court defined “alighting” as used in MCL 500.3106(1)(c), stating:

               With respect to MCL 500.3106(1)(c), “alight” means “to dismount from a
       horse, descend from a vehicle, etc.” or “to settle or stay after descending; come to
       rest.” Random House Webster’s College Dictionary (1997). See also New
       Shorter Oxford English Dictionary (defining “alight” as “to descend and settle;
       come to earth from the air”). Moreover, that the injury must be sustained “while”
       alighting indicates that “alighting” does not occur in a single movement but
       occurs as the result of a process. The process begins when a person initiates the
       descent from a vehicle and is completed when an individual has effectively
       “descend[ed] from a vehicle” and has “come to rest”—when one has successfully
       transferred full control of one’s movement from reliance upon the vehicle to one’s
       body. This is typically accomplished when “both feet are planted firmly on the
       ground.” [Some citations omitted.]

        In this case, although the record is not entirely clear, a review of the record indicates that
George physically removed plaintiff from the bus after plaintiff sprayed him with pepper spray,
resulting in plaintiff being deposited somewhere outside the bus. Although plaintiff asserted
below that George pushed her off the bus, plaintiff’s version of events given during her medical
evaluations was that the bus driver carried her out of the bus, then threw her into either a cement
planter or against a wall. Accepting either scenario, it appears that plaintiff incurred her injuries
after being ejected from the bus, and when she was no longer relying on the bus to support her
body. See Frazier, 490 Mich at 385-386. We note, however, that the trial court did not resolve
the motion for summary disposition based upon this factor, but rather based upon the second
factor of the analysis discussed below.

                  B. PARKED MOTOR VEHICLE AS A MOTOR VEHICLE

       The next factor in the analysis is whether plaintiff established that “the injury arose out of
the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle.”
Kemp, 500 Mich at 253. The trial court concluded that plaintiff had failed to establish this factor
because her alleged injuries were not closely related to the “transportational function” of the bus.
We agree.

       Whether an injury arises out of the use of a motor vehicle as a motor vehicle depends
upon whether the injury “is closely related to the transportational function of automobiles.”
McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 215; 580 NW2d 424 (1998). Our Supreme
Court has determined that the answer to this question requires examination of the activity in
which a plaintiff was engaged at the time of the injury. Kemp, 500 Mich at 258. “There is no
requirement that the activity at issue ‘result from’ the vehicle’s transportational function – that
requirement would confuse the transportational function and causation inquiries.” Id. at 260-
261. In addition, the type of movements made or the injuries suffered need not be unique to

                                                 -4-
motor vehicles. Id. Instead, “the question at this stage is simply whether the activity plaintiff
was engaged in at the time of the injury was closely related to the vehicle’s transportational
function.” Id.

        Incidental involvement of a motor vehicle does not give rise to coverage under the no
fault act. Morosini v Citizens Ins Co of America, 461 Mich 303, 310; 602 NW2d 828 (1999). In
Morosini, after a minor traffic accident, the plaintiff was injured by the assaultive behavior of the
driver of the other car. Our Supreme Court held that the assault was not “closely related to the
transportational function of motor vehicles,” and therefore did not fall within the coverage
intended by the Legislature. The Court reasoned that even though the actions of the second
motorist in assaulting the plaintiff “may have been motivated by closely antecedent events that
involved the use of the motor vehicle as a motor vehicle, . . . the assault itself was a separate
occurrence. The plaintiff was not injured in a traffic accident – he was injured by another
person’s rash and excessive response to these events.” Morosini, 461 Mich at 310-311.

        In this case, at the time of her alleged injuries, plaintiff was engaged in the ramifications
of her spraying pepper spray on the bus driver and another bus passenger. The encounter
between plaintiff and George began when she attempted to board the bus, arguably an activity
related to the transportational function of the bus. But plaintiff’s injuries arose from George’s
assault. Even though the assault may have been “motivated by closely antecedent events that
involved the use of the motor vehicle as a motor vehicle,” the assault in this case, as in Morosini,
was a separate occurrence. Plaintiff was not injured by her attempt to board the bus; she was
injured by “another person’s rash and excessive response to these events.”1 See Morosini, 461
Mich at 310-311. It also cannot be said that plaintiff was injured as a result of “alighting” from
the bus, as that term is defined in Frazier, supra, when George either carried or threw her off the
bus in response to the pepper spray attack. The trial court therefore correctly concluded that
plaintiff failed to establish that her alleged injuries were closely related to the “transportational
function” of the bus.

                                  C. CAUSAL CONNECTION

       The final factor of the analysis requires plaintiff to demonstrate that her injuries had “a
causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but
for.” See Kemp, 500 Mich at 253. “[W]here a motor vehicle is merely the location of an assault
or a backdrop of an assault, there is insufficient connection between the injuries and the use of a
motor vehicle as a motor vehicle to impose liability for PIP benefits under MCL 500.3105(1).”
Univ Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich, 279 Mich App 691, 696; 760
NW2d 574 (2008), overruled in part on other grounds by Pirgu v United Serv Auto Ass’n, 499
Mich 269 (2016).

        Here, plaintiff was injured after she pepper sprayed George and a bus passenger,
inspiring George to physically retaliate. Although her encounter with George began in the


1
  We do not here decide whether George’s actions were, in fact, rash and excessive under the
facts of this case.


                                                -5-
entrance to the bus, one can safely speculate that plaintiff would have incurred similar injuries
upon pepper spraying George, or perhaps anyone, in virtually any location. The fact that the
events triggering this exchange began in the parked bus and concluded near the parked bus was,
without question, merely “incidental, fortuitous, or ‘but for.’ ” So, although the bus was the
backdrop of the assault, the connection in this case between plaintiff’s alleged injuries and the
use of the bus as a motor vehicle was insufficient to impose liability under the no-fault act.
Summary disposition was therefore properly granted.2

       Affirmed.



                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Michael J. Riordan
                                                              /s/ Michael F. Gadola




2
  We decline to reach defendant’s additional argument, as did the trial court, that plaintiff’s claim
for PIP benefits also is barred by the one-year-back rule, MCL 500.3145(1).


                                                -6-
