Fisher v. Lowe

333 N.W.2d 67, 122 Mich. App. 418

• Court: Michigan Court of Appeals
• Decided: January 10, 1983
• Docket: Docket 60732
• Status: Published

Opinion

J. H. Gillis, J.

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court’s decree.

Affirmed. 1

1 Plaintiff commenced this action in tort against defendants Lowe and Moffet for damage to his "beautiful oak tree” caused when defendant Lowe struck it while operating defendant Moffet’s automobile. The trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). In addition, the trial court denied plaintiff’s request to enter a default judgment against the insurer of the automobile, defendant State Farm Mutual Automobile Insurance Company. Plaintiff appeals as of right.

The trial court did not err in granting summary judgment in favor of defendants Lowe and Moffet. Defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act. MCL 500.3135; MSA 24.13135.

The trial court did not err in refusing to enter a default judgment against State Farm. Since it is undisputed that plaintiff did not serve process upon State Farm in accordance with the court rules, the court did not obtain personal jurisdiction over the insurer. GCR 1963, 105.4.