                            STATE OF MICHIGAN

                            COURT OF APPEALS



BRYAN GALLAGHER,                                                     UNPUBLISHED
                                                                     July 14, 2015
               Plaintiff-Appellant,

v                                                                    No. 321976
                                                                     Clinton Circuit Court
NORTHLAND FARMS, LLC,                                                LC No. 12-011030-NO

               Defendant,
and

BRISTOL WEST PREFERRED INSURANCE
COMPANY and FARM BUREAU GENERAL
INSURANCE COMPANY OF MICHIGAN,

               Defendants-Appellees.


Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ.

PER CURIAM.

       In this dispute over first party no-fault insurance benefits, plaintiff, Bryan Gallagher,
appeals by right the trial court’s order granting the motions for summary disposition by
defendants, Bristol West Preferred Insurance Company and Farm Bureau General Insurance
Company of Michigan. Because we conclude there were no errors warranting relief, we affirm.

                                        I. BASIC FACTS

        Gallagher testified at his deposition that he and his brother took jobs hauling loads using
a semi that they jointly owned. In April 2012, he drove to the business owned by defendant,
Northland Farms, L.L.C., to pick up a load of plants. He drove up to the dock, hooked up the
trailer he was to deliver, which had already been loaded with plants by Northland Farms’
employees, pulled forward a bit, and closed the trailer’s doors. After inspecting the trailer to
ensure that the lights were working properly, he left to deliver the load.

        Gallagher stated that his first stop was at a florist’s business. He arrived there at around
seven in the morning and knocked on the florist’s door, but no one answered. He did not know
where the florist’s employees would want to unload that day. Nevertheless, he returned to his
semi and decided to open the trailer’s doors to get ready to unload. As soon as he unlatched the
doors, the doors forced him back: “Well, as soon as I unlatched it . . . as soon as I did that it
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pushed me back and I tried to get out of the way.” About a half-dozen boards fell through the
opening and struck him on the head, back, and shoulders. Gallagher testified that Northland
Farms’ employees used the boards to create make-shift shelving on the trailer and would
normally stack the excess boards on the floor of the trailer, but the boards were not stacked that
way on this day.

        Gallagher said he was forced to the ground by the falling boards, but got up and placed
the boards back onto the trailer. A few minutes later, one of the florist’s employees came out
and told him where they wanted to unload. Gallagher backed the truck into the parking lot, but
told the employees that he could not help unload because he had been hit by falling boards. He
proceeded to deliver the remaining loads over the course of the day, but he did not help unload
any of the deliveries because of the pain; each time he just lay in the truck while the customer’s
employees unloaded the plants.

       In June 2012, Gallagher sued Northland Farms for negligently loading the trailer and
sued Farm Bureau and Bristol West for refusing to pay him the first-party benefits required
under the no-fault act. Farm Bureau insured Gallagher’s semi and Bristol West insured his
personal automobile.

        Bristol West moved for summary disposition in April 2013. It argued that it had no
obligation to pay no-fault benefits to Gallagher or on his behalf because any injury that he
suffered on the day at issue did not arise out of the ownership, operation, maintenance or use of a
motor vehicle as a motor vehicle. See MCL 500.3105(1). Specifically, Bristol West maintained
that the undisputed evidence showed that the semi was parked at the time of the incident at issue
and that none of the exceptions to the limitation on coverage for parked vehicles applied. See
MCL 500.3106(1).

       In May 2013, Farm Bureau filed a motion concurring with Bristol West’s motion for
summary disposition and asking the trial court to dismiss Gallagher’s claim against it for the
same reason.

         In response to Bristol West’s motion, Gallagher argued that opening the trailer’s doors
was part of the “process of unloading the truck.” Moreover, because he came into direct contact
with items used to secure the load—the boards used as shelving—he maintained that the
exception stated under MCL 500.3106(1)(b) applied. In the alternative, Gallagher argued that he
intended to assist with the unloading and had to open the doors to enter the trailer. Thus,
opening the doors was part of the process of entering the vehicle within the exception stated
under MCL 500.3106(1)(c). For these reasons, he asked the trial court to deny the motions by
Bristol West and Farm Bureau and instead enter an order determining that Gallagher was entitled
to first-party benefits.

        The trial court held a hearing on the motions later that same month. At the close of the
hearing, the court determined that there was no question of fact that Gallagher was injured by the
boards, which were not going to be unloaded. Further, the court stated that the undisputed
evidence showed that Gallagher did not intend to enter the trailer at the time he opened the door;
rather, he intended to “confer” with the florist’s employees to determine where they wanted to
unload. Because it was undisputed that Gallagher’s injuries did not occur while unloading or

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entering the vehicle for purposes of the exceptions to the exclusion stated under MCL
500.3106(1)(b) and (c), the trial court granted the motions for summary disposition by Bristol
West and Farm Bureau.

        In June 2013, the trial court entered an order dismissing Gallagher’s claims for first-party
benefits against Bristol West and Farm Bureau.

       Gallagher and Northland Farms later stipulated that Gallagher’s suit against Northland
Farms should be “discontinued with prejudice.” The trial court entered an order dismissing
Gallagher’s claim against Northland Farms with prejudice in May 2014.

       Gallagher then appealed the trial court’s order dismissing his claims against Bristol West
and Farm Bureau in this Court.

                                       II. JURISDICTION

                                 A. STANDARD OF REVIEW

        On appeal, Farm Bureau argues that this Court does not have jurisdiction to consider
Gallagher’s appeal because Gallagher stipulated to the dismissal of his complaint and did not
reserve the right to appeal. Whether this Court has jurisdiction is a question of law that this
Court reviews de novo. Chen v Wayne State University, 284 Mich 172, 191; 771 NW2d 820
(2009).

                                         B. ANALYSIS

        Generally, a party cannot appeal from a judgment, order, or decree to which the party
consented. See Dora v Lesinski, 351 Mich 579, 582; 88 NW2d 592 (1958). This is because the
parties’ error, “ ‘if there is any, is their own, and not the error of the court.’ ” Id., quoting
Chapin v Perrin, 46 Mich 130, 131; 8 NW 721 (1881). However, a party may appeal from a
consent judgment where the party has reserved the right of appeal. See Travelers Ins v Nouri,
456 Mich 937; 575 NW2d 561 (1998).

        Gallagher stipulated to the dismissal of his claim against Northland Farms and did not
reserve any right to appeal. However, Gallagher stipulated to the dismissal after the trial court
had already entered an order dismissing his claims against Bristol West and Farm Bureau.
Because the trial court entered its order dismissing Gallagher’s claims against the insurers after a
contested motion for summary disposition, any error in the entry of the order was not necessarily
the parties’ own error. Chapin, 46 Mich at 131. Further, Bristol West and Farm Bureau were
not parties to the stipulation. In the stipulation, Gallagher and Northland Farms stated that the
stipulation was “by and between” them and applied to the remaining “cause.” Accordingly, the
stipulation did not amount to a consent judgment as to Gallagher’s claims against Bristol West or
Farm Bureau. Under these circumstances, Gallagher retained his right to appeal the trial court’s
order dismissing his claims against Bristol West and Farm Bureau. See Dybata v Kistler, 140
Mich App 65, 68; 362 NW2d 891 (1985).

       Gallagher’s claims of error are properly before this Court.


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                                III. SUMMARY DISPOSTION

                                 A. STANDARD OF REVIEW

        On appeal, Gallagher argues that the trial court erred when it concluded that none of the
exceptions to the parked-vehicle exclusion for no-fault coverage applied under the undisputed
facts of his case. This Court reviews de novo a trial court’s decision on a motion for summary
disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362,
369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly
interpreted and applied the no-fault. In re Carroll (On Remand), 300 Mich App 152, 159; 832
NW2d 276 (2013).

                                         B. ANALYSIS

        A person’s no-fault insurance carrier is generally “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). Accidental bodily injury does not, however, arise “out
of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle” unless
an exception applies. MCL 500.3106(1). That is, parked vehicles are generally excluded from
the coverage provided under the no-fault act.

        The purpose of the parked motor vehicle exclusion from coverage is to “ensure that an
injury that is covered by the no-fault act involves use of the parked motor vehicle as a motor
vehicle.” Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 633; 563 NW2d 683
(1997). “ ‘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.’ ” Id.,
quoting Miller v Auto-Owners Ins Co, 411 Mich 633, 639; 309 NW2d 544 (1981). However,
under MCL 500.3106(1)(a) to (c), the Legislature has defined a narrow subset of incidents
involving parked vehicles that have a sufficiently close nexus to the use of the vehicle as a motor
vehicle to justify recovery under the no-fault act. Putkamer, 454 Mich at 635. The Legislature
established exceptions from the exclusion for those injuries that fall within one of these
categories. Accordingly, in order to be entitled to first-party no-fault benefits—commonly
referred to as PIP benefits—for injuries related to a parked motor vehicle, the injured party “must
establish that the injury arose out of the ownership, operation, maintenance, or use of the parked
vehicle by establishing that he falls into one of the three exceptions to the parking exclusion in
subsection 3106(1).” Id.

        On appeal, Gallagher has not reiterated his claim that he was entitled to PIP benefits
under the exception for injuries “sustained by a person while occupying, entering into, or
alighting from the vehicle.” MCL 500.3106(1)(c).1 He also did not claim that the exception for


1
  Gallagher does refer to some authorities discussing the exception stated under MCL
500.3106(1)(c), but he argues that those authorities apply by analogy to his argument that
opening the trailer doors is part of the loading and unloading process for purposes of the

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dangerously parked vehicles stated under MCL 500.3106(1)(a) applies to the facts of his case.
As such, the only exception at issue is the exception stated under MCL 500.3106(1)(b).

        Under MCL 500.3106(1)(b), an accidental bodily injury arises out of the ownership,
operation, maintenance, or use of a parked vehicle as a motor vehicle, with an exception not
relevant here, if “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.” This exception “actually
embodies two distinct exceptions to the parking exclusion.” Royston v State Farm Mut Auto Ins
Co, 130 Mich App 602, 606; 344 NW2d 14 (1983). It applies when “the injury is the direct
result of physical contact with equipment permanently mounted on the vehicle” and “when the
injury results from property which is lifted onto or lowered from the vehicle during the loading
or unloading process.” Id.

        Gallagher argues, in part, that this exception applies because he was injured by the falling
boards as he opened the trailer’s doors. More specifically, he maintains that he was injured
while in direct physical contact with the door, which is equipment permanently mounted on the
vehicle, as he was using the door. However, our Supreme Court has held that, by referring to
equipment permanently mounted on the vehicle, the Legislature necessarily excluded the
“constituent parts of ‘the vehicle’ itself” from the definition of equipment. Frazier v Allstate Ins
Co, 490 Mich 381, 385; 808 NW2d 450 (2011). Consequently, as constituent parts of the trailer,
the trailer’s doors are not equipment permanently mounted on the trailer for purposes of the
exception stated under MCL 500.3106(1)(b). Id. at 386.

       Gallagher also argues that the exception to the exclusion stated under MCL
500.3106(1)(b) applies because he was engaged in the “loading or unloading process” when he
was injured. In making this argument, Gallagher maintains that this Court must liberally
construe the phrase “loading or unloading process” to cover any injury that arises during any part
of the loading or unloading process. Because he was injured while opening the trailer door,
which was a prerequisite to unloading the plants, Gallagher maintains that the exception applies
and he is entitled to PIP benefits.

        This Court has held that the terms loading or unloading, as used under MCL 500.3106(2),
should be broadly construed to include the entire process of loading or unloading in order to give
effect to the Legislature’s decision to prevent the duplication of benefits. Bell v FJ Boutell
Driveway Co, 141 Mich App 802, 809; 369 NW2d 231 (1985). But the Court in Bell specifically
stated that it was not construing the terms consistent with those authorities examining MCL
500.3106(1)(b), because that section had limiting language that altered the meaning of the phrase
“in the loading or unloading process.” Bell, 141 Mich App at 808. Since the decision in Bell,
this Court has recognized that the broad construction applied to the terms loading and unloading
under MCL 500.3106(2) does not apply to the proper construction of the same terms in MCL

exception stated under MCL 500.3106(1)(b). To the extent that he can be said to have impliedly
raised the exception under MCL 500.3106(1)(c), he has abandoned that claim of error by failing
to properly argue and support it on appeal. Johnson Family Ltd Partnership v White Pine
Wireless, LLC, 281 Mich App 364, 374; 761 NW2d 353 (2008).


                                                -5-
500.3106(1)(b). See Perez v Farmers Ins Exchange, 225 Mich App 731, 735; 571 NW2d 770
(1997). Therefore, Gallagher’s reliance on decisions where this Court construed and applied
MCL 500.3106(2) is inapposite.2

         The second exception under MCL 500.3106(1)(b) applies when the “injury was a direct
result of physical contact with . . . property being lifted onto or lowered from the vehicle in the
loading or unloading process.” A plain reading shows that this exception applies when the
injured person’s injury was directly caused by “physical contact” with property that was “being
lifted onto or lowered from the vehicle” and which was being lifted or lowered as part of “the
loading or unloading process.” Id.; Winter v Automobile Club of Michigan, 433 Mich 446, 460;
446 NW2d 132 (1989) (stating that the exception did not apply even though the slab was being
lifted because it was not being lifted onto the truck); see also Adanalic v Harco National Ins Co,
___ Mich App ___, slip op at 5; ___ NW2d ___ (2015) (Docket No. 317764) (stating that the
exception requires “that there be ‘physical contact’ with the property being loaded and that such
physical contact ‘directly result’ in injury”). Because the injured person must be in “physical
contact” with the property while the property is “being lifted onto or lowered from the vehicle,”
MCL 500.3106(1)(b), this Court has repeatedly held that this exception does not apply to acts
which are merely preparatory to the act of lifting or lowering property onto or from the vehicle.
See Frohm v American Motorists Ins Co, 148 Mich App 308, 311; 383 NW2d 604 (1985)
(stating that the exception did not apply to an injury that occurred while loading containers that
would eventually be loaded onto the truck because the injury had to occur while actually lifting
the containers onto the truck); Royston, 130 Mich App at 606 (stating that the exception did not
apply because the plaintiff was not injured while in contact with the property actually being
loaded); Block v Citizens Ins Co, 111 Mich App 106, 109; 314 NW2d 536 (1981) (stating that
the exception did not apply even though the plaintiff was carrying the box to her van because she
was not lifting it into the van at the time of the injury); Dembinski v Aetna Casualty Co, 76 Mich
App 181, 183; 256 NW2d 69 (1977) (carrying property toward the truck is merely preparatory to
loading and not covered by the exception). Similarly, the exception does not apply to injuries
that occur after the property has been lifted onto the vehicle, but before it is ready for transport.
See Perez, 225 Mich App at 736 (holding that the exception did not apply to an injury that
occurred while securing a load because it did not involve contact with property that was being
lifted onto the vehicle during the loading process). By providing that the injury must occur
during the lifting or lowering of the property, the Legislature plainly limited the exception to that
specific phase of the loading or unloading process. Dowdy v Motorland Ins Co, 97 Mich App
242, 246; 293 NW2d 782 (1980) (holding that the loading process for purposes of this exception
consists only of the lifting of property into the vehicle); Dembinski, 76 Mich App at 183 (“Thus,
it is clear that the loading process consists only of the lifting of property into the vehicle.”).
Consequently, we are not at liberty to construe the exception to broadly apply to all phases of the
loading or unloading process.



2
 These include: Crawford v Allstate Ins Co, 160 Mich App 182; 407 NW2d 618 (1987); Gibbs v
United Parcel Service, 155 Mich App 300; 400 NW2d 313 (1986); Gray v Liberty Mut Ins Co,
149 Mich App 446; 386 NW2d 210 (1986).


                                                -6-
       In this case, the undisputed evidence shows that no one from the florist’s business
responded to Gallagher’s knocks when he first arrived. As such, he did not know where the
employee’s wanted him to position the trailer for unloading. Indeed, without further instruction,
he did not even know when he would be able to unload the trailer. Despite this, Gallagher
decided to open the trailer’s doors in anticipation of unloading. He was then injured when
boards that were apparently leaning against the inside of the doors fell from the trailer and struck
him.

        The act of opening the trailer’s doors is—in the broadest sense—part of the unloading
process. But it does not itself involve “physical contact” with property “being lifted onto or
lowered from the vehicle in the loading or unloading process.” MCL 500.3106(1)(b). Rather, it
is merely preparatory to the unloading of property. Block, 111 Mich App at 109; Dembinski, 76
Mich App at 183. Moreover, the undisputed evidence showed that the boards were not being
delivered to the florist and that they were not “being . . . lowered from the vehicle” at the time of
Gallagher’s injuries. Stated another way, the evidence showed that the lowering process had not
yet begun when Gallagher was injured. Although property that falls from a trailer is in some
sense “being . . . lowered,” we conclude that the Legislature’s requirement that the injury directly
arise from contact with property that is “being . . . lowered from the vehicle” requires that the
lowering process be initiated by some actor and that the contact be with the property actually
being unloaded. MCL 500.3106(1)(b). In this case, the undisputed evidence was that the boards
were not intended to be delivered and that they were not being lowered at the time of Gallagher’s
injury. Because Gallagher’s injuries were not “a direct result of physical contact with . . .
property being lifted onto or lowered from the vehicle in the loading or unloading process”
within the meaning of MCL 500.3106(1)(b), that exception to the parked motor vehicle
exclusion for no-fault coverage did not apply.

                                       IV. CONCLUSION

        The trial court did not err when it determined that, under the undisputed facts, none of the
exceptions to the parked motor vehicle exclusion for no-fault coverage applied. Consequently, it
did not err when it dismissed Gallagher’s claims against Bristol West and Farm Bureau for no-
fault PIP benefits.

     Affirmed. As the prevailing parties, Bristol West and Farm Bureau may tax their costs.
MCR 7.219(A).



                                                              /s/ Peter D. O'Connell
                                                              /s/ Donald S. Owens
                                                              /s/ Michael J. Kelly




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