            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



PATRICK A. COULTER,                                                 UNPUBLISHED
                                                                    August 13, 2019
              Plaintiff-Appellee,

v                                                                   No. 343868
                                                                    Washtenaw Circuit Court
AUTO CLUB INSURANCE ASSOCIATION,                                    LC No. 17-000660-NF

              Defendant-Appellant.


Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

FORT HOOD, J. (dissenting).

       Because I would conclude that plaintiff was engaged in an activity closely related to the
transportational function of a motor vehicle, and that there was a sufficient causal connection
between plaintiff’s injury and his use of the motor vehicle, I respectfully dissent.

      As the majority notes, the initial scope of coverage for PIP benefits is set forth in MCL
500.3105(1), which provides:

       Under personal protection insurance 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.

In Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich 245; 901 NW2d 534 (2017), our
Supreme Court wrote:

       [T]he phrase “use of a motor vehicle ‘as a motor vehicle’ ” would appear to invite
       contrasts with situations in which a motor vehicle is not used “as a motor
       vehicle.” This is simply to say that the modifier “as a motor vehicle” assumes the
       existence of other possible uses and requires distinguishing use “as a motor
       vehicle” from any other uses. While it is easily understood from all our
       experiences that most often a vehicle is used “as a motor vehicle,” i.e., to get from
       one place to another, it is also clear from the phrase used that 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


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       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 . . . . It seems then that when we are applying the statute, the phrase “as
       a motor vehicle” invites us to determine if the vehicle is being used for
       transportational purposes. [Kemp, 500 Mich at 257-258 (quotation marks and
       citation omitted).]

The Kemp Court emphasized that, to determine whether a motor vehicle was being used as a
motor vehicle at the time of an injury, the proper inquiry “appropriately focuses on the activity
the plaintiff was engaged in,” and “whether that activity was closely related to the vehicle’s
transportational function.” Id. at 260. It is not “require[d] that the type of movements made or
the injuries suffered be unique to motor vehicles or that they [] only occur in a motor vehicle,”
and importantly, is it not a requirement “that the activity at issue ‘result from’ the vehicle’s
transportational function.” Id. at 260-262.

        In this case, plaintiff testified at his deposition that his injury occurred while he and
Ybarra were engaged in the transportation of pallets of donated canned goods. Plaintiff and
Ybarra were utilizing a delivery truck as a delivery truck. It is my opinion that the activity
plaintiff was engaged in at the time of his injury—facilitating the pick-up and delivery of
charitable goods—was closely related to the transportational function of the box truck at issue.

        In Drake v Citizens Ins Co of America, 270 Mich App 22, 22-24; 715 NW2d 387 (2006),
the plaintiff was injured while attempting to unclog a grain delivery truck’s auger system for
unloading animal feed into a silo. The plaintiff was outside the vehicle attempting to unclog the
truck’s auger system when the auger system was unintentionally activated, causing the plaintiff
to lose a finger. Drake, 270 Mich App at 24. Despite the defendant’s arguments that the
circumstances constituted one of the “rare instances” in which a motor vehicle was not being
used as a motor vehicle when the injury occurred, we held that “[t]he vehicle involved [was] a
delivery truck, and it was being used as such when the injury occurred.” Id. at 26. Accordingly,
the plaintiff’s injury “closely related to the motor vehicle’s transportational function, and
therefore arose out of the operation, ownership, maintenance, or use of a motor vehicle as a
motor vehicle.” Id.

        Similarly, in Walega v Walega, 312 Mich App 259, 266; 877 NW2d 910 (2015), the
plaintiff tied a rope around a gun safe and his wife used a truck to pull the safe out of a garage so
that it could then be loaded onto the truck. As the safe dragged across the driveway, it hit a
raised portion of pavement and tipped over onto the plaintiff’s leg. Walega, 312 Mich App at
263. We determined that the plaintiff’s injury was closely related to the transportational function
of the vehicle because using “a truck to transport an item is consistent with a truck’s inherent
nature and in accordance with its intended purpose.” Id. at 271. Thus, the plaintiff’s “injury
occurred while the truck was being used as a motor vehicle.” Id. at 271.

        Finally, in Kemp, the plaintiff placed several items behind the driver’s seat of his truck,
and proceeded to drive home from work. Kemp, 500 Mich at 249. When plaintiff arrived and
went to retrieve the items, plaintiff reached into the vehicle “and sustained an injury as he was
lowering [the items] from the vehicle.” Id. The Michigan Supreme Court noted: “We have little
difficultly concluding that a person who is engaged in the activity of unloading his or her

                                                -2-
personal effects from a vehicle upon arrival at a destination is using the vehicle for its
transportation function, i.e., for the conveyance of persons or objects from one place to another.”
Id. at 260.

        Drake, Walega, and Kemp all stand for the proposition that an injury stemming from the
use of a motor vehicle to transport property from one place to another satisfies the statutory
requirement that an injury arise out of the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle. I do not believe the present case is one of the rare instances in which
a motor vehicle was used for a separate, nontransportational purpose, see id. at 257, and
although it was unnecessary for the majority to address this issue because of their causality
analysis, I would have concluded that plaintiff sufficiently established that his injury was
sustained while he was using the charity’s box truck as a motor vehicle.

        Next, separate from the question of whether an activity sufficiently relates to a vehicle’s
transportational purpose is the question of whether “the causal connection between the injury and
the use of the motor vehicle as a motor vehicle ‘is more than but for, incidental, or fortuitous.’ ”
Kemp, 500 Mich at 263, quoting Thornton v Allstate Ins Co, 425 Mich 643, 659-660; 391 NW2d
320 (1986). The causal connection must be more than incidental for a plaintiff to recover PIP
benefits. Id. Our Supreme Court first adopted this particular standard in Thornton, wherein the
Court determined that our Legislature intended “a causal relation greater than mere ‘but for’
cause between the injury and the use of a motor vehicle.” Id. at 646, 652-659. Thornton held
that the “[t]he involvement of the car in the injury should be directly related to its character as a
motor vehicle,” or, stated differently, the causation inquiry must determine whether the motor
vehicle was the “instrumentality” of the injury. Id. at 659-660 (quotation marks and citation
omitted).

         The majority relies upon Morosini v Citizens Ins Co, 461 Mich 303; 602 NW2d 828
(1999) and Mueller v Auto Club Ins Ass’n, 203 Mich App 86; 512 NW2d 46 (1993) to hold that
plaintiff failed to establish a sufficient causal connection between his injury and his use of the
box truck. In Morosini, the plaintiff was rear ended while driving, and after exiting his vehicle to
assess whether it was damaged, the plaintiff was assaulted by the driver of the other vehicle.
Morosini, 461 Mich at 305. Our Supreme Court concluded that PIP benefits were unavailable
because the plaintiff “was injured by another person’s rash and excessive response” to a minor
traffic accident, and thus, the injury was merely incidental to the use of the motor vehicle. Id. at
311. In Meuller–perhaps the quintessential example of a fortuitous and unexpected injury—the
plaintiff was the occupant of a pickup truck and was struck in the head by a stray bullet during
deer hunting season. Mueller, 203 Mich App at 90-91. We aptly concluded in that case that the
injury was merely but for, fortuitous, and incidental to the plaintiff’s use of the motor vehicle,
and thus PIP benefits were not available. Id. The majority likens plaintiff’s injury by a garage
door to the incidental injuries in Morosini and Mueller, finding the reasoning from Mueller that,
in that case, the “[p]laintiff was simply in the wrong place at the wrong time,” particularly
persuasive. Id. at 92.

       I respectfully disagree with the majority’s characterization of plaintiff’s injury. Plaintiff
was injured by a garage door while engaged in an activity closely related to the transportational
function of his vehicle. This was not a stray bullet. In Mueller, we noted the “extraordinary risk


                                                -3-
of stray gunfire striking a motor vehicle” when we concluded that the plaintiff’s injuries were
incidental to his operation of a motor vehicle. Id. at 92 n 2. We further wrote:

       Plaintiff could have been injured as easily if he were hiking, skiing, or hunting.
       The vehicle was not the instrumentality of the injury, Thornton, supra, p 660, nor
       was the injury caused by the inherent nature of the vehicle, id., p 661. Nor is the
       risk of a stray bullet passing through an automobile ‘within the ordinary risks of
       driving a motor vehicle.’ Marzonie [v Auto Club Ins Ass’n, 441 Mich 522, 534;
       495 NW2d 788 (1992)]. [Id. at 91-92.]

Unlike stray bullets, garage doors are closely associated with the use and operation of motor
vehicles, and I would think this to be particularly true with respect to the transportation of goods
via box trucks. Indeed, plaintiff was not simply in the wrong place at the wrong time, he was
standing on a loading dock guiding Ybarra, who was driving the box truck, solely because the
two were engaged in transporting goods.

        Similarly, I do not believe plaintiff’s injury is comparable to the injury in Morosini,
which was the result of an intentional tort. Morosini, 461 Mich at 305. The majority notes that
plaintiff’s “injury was the result of negligence on the part of the Walmart employee, not the use
of the box truck as a motor vehicle.” In actuality, however, it is quite typical in a no-fault case
that a plaintiff’s injury is in some way the result of negligence by a third party. Because the only
proper inquiry is whether a plaintiff’s injury was related to that plaintiff’s use of a motor vehicle
as a motor vehicle, negligence by a third party ordinarily does not keep plaintiffs from
recovering PIP benefits. Moreover, in Drake, we permitted a plaintiff to recover PIP benefits
under very similar circumstances despite a third party’s involvement in causing the injury.

        As described above, in Drake, the plaintiff was injured while attempting to unclog an
auger system on a delivery truck. Drake, 270 Mich App at 24. Plaintiff was reaching his hand
through an inspection door on the truck in order to clean animal feed from the augers when the
driver of the delivery truck, “apparently unintentionally,” activated the augers and caused
plaintiff to lose a finger. Id. Despite the plaintiff’s injuries being the result of the negligence of
a third party, we concluded that the plaintiff was entitled to bring a claim for PIP benefits
because the vehicle involved in the injury was a delivery truck and the plaintiff was using it as
such when he was injured. Id. at 26. We took no issue with the delivery truck driver’s
involvement in causing the plaintiff’s injury. See id. at 25-29.

        More recently, in Walega, we held that the plaintiff was entitled to PIP benefits even
though he was outside the motor vehicle and the motor vehicle was being operated by his wife.
Walega, 312 Mich App at 271. We held that, even despite the fact that “the particular method
used to transport the safe, i.e, dragging it, may not have been contemplated,” there was a
sufficient causal connection between the injury and the use of the vehicle because “the use of a
truck to transport an item is a normal use.” Id. See also Thornton, 425 Mich at 661 (“[T]he
mere absence of foreseeability [does] not necessarily preclude coverage.”). One could have
argued in Walega that the plaintiff was simply in the wrong place at the wrong time, or that his
injury was actually the result of his wife’s heavy foot or negligence. Instead, those concepts had
no bearing on our analysis. The Walega plaintiff was entitled to PIP benefits because his injury
arose out of the use of a motor vehicle as a motor vehicle, and because it was foreseeable that a

                                                 -4-
person might “use a truck, fitted with a trailer hitch, to move heavy objects.” Walega, 312 Mich
App at 272.

        On page five of the majority opinion, the majority appears to distinguish Drake and
Walega by noting that, in this case, plaintiff was not injured by an item attached to or being
transported by the box truck. Indeed, in Drake, the auger system was permanently mounted to
the delivery truck, Drake, 270 Mich App at 390, and in Walega, conflicting testimony indicated
that the safe was either attached or partially loaded onto the truck when it injured the plaintiff,
Walega, 312 Mich App at 261. I would not conclude that those were the operative facts in those
cases, and moreover, the majority’s argument controverts other precedent set by this Court.

        In Musall v Golcheff, 174 Mich App 700, 703; 436 NW2d 451 (1989),1 we permitted the
recovery of PIP benefits even where the plaintiff was injured by an object unattached to his
vehicle. This Court held that the necessary causal relationship existed between the plaintiff’s
injury and the use of a motor vehicle when the plaintiff was injured by a malfunctioning wash
wand at a self-serve auto wash. Id. The plaintiff suffered injury while in the process of
maintaining his truck, and in this Court’s view, “[t]he wash wand was merely the tool needed to
accomplish the task.” Id. Accordingly, the motor vehicle “was not merely ‘incidental’ to the
circumstances” and “the relation between the functional character of the motor vehicle and [the]
plaintiff’s injuries was indeed direct.” Id. It is notable that, in Musall, an assertion was made
that the requisite causal connection between the plaintiff’s injury and maintenance of the vehicle
did not exist because the plaintiff’s injury arose from contact with the wash wand rather than
direct contact with the vehicle. Id. at 704. We explicitly rejected that idea, concluding that our
caselaw did not support such a narrow interpretation of the statute. Id. at 704. Indeed, we have
noted that, generally, the no-fault act “is to be construed liberally because it is remedial in
nature.” Walega, 312 Mich App at 266 (quotation marks and citation omitted). “Where
appropriate, the act should be broadly construed to effectuate coverage.” Id. (quotation marks
and citation omitted).

       With that in mind, I would have concluded that plaintiff established a causal relationship
between his injury and his use of the box truck as a motor vehicle sufficient to overcome
summary disposition. Plaintiff testified that he was in the process of directing Ybarra as Ybarra
attempted to back the box truck into the loading bay. The garage door attached to the loading
bay was an object that would necessarily need to be engaged in order to continue to utilize the
box truck for its transportational purpose, and I would think the potential for injury from such an




1
 Court of Appeals cases decided before November 1, 1990, are not binding. MCR 7.215(J)(1).
Although this Court is not “ ‘strictly required to follow uncontradicted opinions from this Court
decided prior to November 1, 1990,’ those opinions are nonetheless ‘considered to be precedent
and entitled to significantly greater deference than are unpublished cases.’ ” People v Bensch,
___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 341585); slip op at 3 n 6, quoting
Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018) (emphasis
omitted).


                                                -5-
object would be an ordinary risk associated with utilizing delivery box trucks as delivery trucks.
I would have affirmed the trial court’s order.




                                                            /s/ Karen M. Fort Hood




                                               -6-
