Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  June 7, 2019                                                                     Bridget M. McCormack,
                                                                                                 Chief Justice

  158213                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                      Stephen J. Markman
                                                                                           Brian K. Zahra
  TAMARA WOODRING,                                                                   Richard H. Bernstein
          Plaintiff-Appellee,                                                        Elizabeth T. Clement
                                                                                     Megan K. Cavanagh,
                                                                                                      Justices
  v                                                        SC: 158213
                                                           COA: 324128
                                                           Muskegon CC: 14-049544-NI
  PHOENIX INSURANCE COMPANY,
            Defendant-Appellant.

  ____________________________________/

        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
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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.
                                                                                                               3


       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.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St.
Paul: Thomson/West, 2012), p 237, quoting 1 Story, Commentaries on the Constitution
of the United States (2d ed), § 427, p 303.

       MARKMAN, J., joins the statement of ZAHRA, J.




                         I, Larry S. Royster, 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.
                         June 7, 2019
       a0604
                                                                             Clerk
