Auto Club Ins. Ass'n v. STATE AUTO. MUT. INS. CO.

671 N.W.2d 132, 258 Mich. App. 328
CourtMichigan Court of Appeals
DecidedOctober 29, 2003
Docket239489
StatusPublished
Cited by22 cases

This text of 671 N.W.2d 132 (Auto Club Ins. Ass'n v. STATE AUTO. MUT. INS. CO.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auto Club Ins. Ass'n v. STATE AUTO. MUT. INS. CO., 671 N.W.2d 132, 258 Mich. App. 328 (Mich. Ct. App. 2003).

Opinion

671 N.W.2d 132 (2003)
258 Mich. App. 328

AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant,
v.
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Docket No. 239489.

Court of Appeals of Michigan.

Submitted July 8, 2003, at Detroit.
Decided September 2, 2003, at 9:00 a.m.
Released for Publication October 29, 2003.

*133 Schoolmaster, Hom, Killeen, Siefer & Arene (by Renee Ballard), Detroit and John A. Lydick, of counsel, Bingham Farms, for the plaintiff.

Condit, McGarry & Schloff, P.C. (by Michael F. Condit), Bloomfield Hills, for the defendant.

Before: HOEKSTRA, P.J., and FITZGERALD and WHITE, JJ.

WHITE, J.

Plaintiff Auto Club Insurance Association (ACIA) appeals by leave granted the circuit court's order granting summary disposition in favor of defendant State Automobile Mutual Insurance Company (SAMIC) in this action for declaratory relief involving no-fault insurance. ACIA argues it presented sufficient evidence that the vehicle insured by SAMIC was involved in the collision with the injured claimant's motorcycle to withstand summary disposition on the question whether SAMIC is obligated to pay a pro rata share of the motorcyclist's no-fault personal injury protection (PIP) benefits. We agree, and reverse and remand for further proceedings.

I

This case arises out of a motorcycle accident that occurred on northbound M37, *134 in a construction zone. A line of approximately five to six vehicles was stopped where a flagperson was holding a stop sign. A vehicle driven by Donald Karel and insured by SAMIC pulled up and stopped behind the northbound line of vehicles, a pickup truck, driven by Debra Embury and insured by ACIA, pulled up and stopped behind Karel. A northbound motorcycle, driven by Robert Bateman and traveling at a high rate of speed, was unable to stop behind the line of vehicles and collided with Embury's pickup truck. The motorcycle slid down the driver's side of Embury's pickup truck and eventually slid into the southbound lane of traffic. It is disputed whether Bateman also hit Karel's vehicle before sliding into the oncoming lane of traffic. Bateman sustained severe injuries.

Plaintiff ACIA paid PIP benefits to Bateman for the injuries he sustained in the accident. ACIA then commenced this action seeking declaratory relief and recoupment from SAMIC for PIP benefits paid to Bateman on the basis that Bateman also struck Karel's car. SAMIC moved for summary disposition, arguing that Karel's vehicle was not struck by Bateman. SAMIC also argued that even if Bateman struck Karel's vehicle, under Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 528 N.W.2d 681 (1995), Karel's vehicle was still not "involved" in the accident to the extent that SAMIC is obligated to pay no-fault benefits. ACIA responded to the motion by submitting evidence that Bateman struck Karel's vehicle and by arguing that Karel's vehicle was therefore involved in the accident. The circuit court granted SAMIC's motion.

II

On appeal, a circuit court's grant of summary disposition is reviewed de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. Summary disposition is appropriate when, except for the amount of damages, there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). When deciding a motion under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999).

M.C.L. § 500.3105(1) 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 [[1]] as a motor vehicle, subject to the provisions of this chapter.

M.C.L. 500.3114(5) and (6) provide:

(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.
*135 (b) The insurer of the operator of the motor vehicle involved in the accident.
(c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.
(d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident.
(6) If 2 or more insurers are in the same order of priority to provide personal protection insurance benefits under subsection (5), an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among all of the insurers.

The question is whether Karel's vehicle was "involved" in the accident within the meaning of M.C.L. § 500.3114(5). SAMIC claims that Karel's car was not "involved" in the accident because (1) Bateman did not collide with Karel's car, and (2) even if Bateman did collide with Karel's car, Karel's car played a passive role in the accident, and a passive role is not enough to constitute involvement under Turner, supra.

A

The first question, whether Bateman collided with Karel's car, is a question of fact. The party moving for summary disposition has the initial burden of supporting its position by affidavits, depositions, or other documentary evidence. Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999). The party opposing the motion then has the burden of showing by evidentiary materials that a genuine issue of disputed fact exists, id., and the disputed factual issue must be material to the dispositive legal claim, State Farm Fire & Cas. Co. v. Johnson, 187 Mich.App. 264, 267, 466 N.W.2d 287 (1990). While SAMIC concedes in its brief that for purposes of this appeal this Court should assume that the accident happened as asserted by ACIA, it nevertheless attacks the sufficiency of ACIA's showing in this regard. We therefore address whether ACIA established a genuine issue regarding whether Bateman hit Karel's vehicle.

SAMIC, in support of its motion below, submitted excerpts from Embury's deposition and Karel's affidavit. Karel stated in his affidavit that Bateman did not hit his car and that the damage to his taillight and windshield was caused by flying debris.

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Bluebook (online)
671 N.W.2d 132, 258 Mich. App. 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-club-ins-assn-v-state-auto-mut-ins-co-michctapp-2003.