Mull v. Equitable Life Assurance Society

510 N.W.2d 184, 444 Mich. 508

• Court: Michigan Supreme Court
• Decided: January 25, 1994
• Docket: 95200, (Calendar No. 10)
• Status: Published

Opinions

Mat,t.ett, J.

In this negligence action, we granted leave to determine whether a front-end loader is a motor vehicle for purposes of the owner’s liability statute, MCL 257.401; MSA 9.2101. The trial court and the Court of Appeals concluded, as a matter of law, that a front-end loader is a motor vehicle. We affirm.

i

On Sunday, November 15, 1987, the plaintiff, William Mull, suffered serious personal injuries as a result of an accident that occurred while standing in the bucket of a front-end loader at the Southland Mall.¹

A front-end loader is a motor driven, four-wheeled machine, whose rear tires are approximately four feet in diameter, and are much larger than the front tires. A front-end loader has a cab with windshield, a steering wheel to which the accelerator lever is attached and brake and clutch pedals located on the floor. In short, a front-end loader is a self-propelled machine.

At the time of the accident, Mull was an employee of The Center Companies (tcc), which has operated and maintained malls since June, 1970. Tcc was not affiliated with Midwest Malls. Other tcc employees present at the time of the accident were Todd Wilkerson, Jeanette Ramik, and Michael Koss.

On this day, Mr. Koss was in charge and instructed the Wilkerson, Ramik, and Mull work crew to install the mail’s Christmas wreaths on the side of the shopping center. The mall owned a piece of equipment called a "televator” available for the Christmas wreath project. The televator is a four-wheeled device designed to raise a worker up to fifty feet in the air. It is controlled by the worker, who pushes buttons to raise or lower the platform. However, if used outside, a truck is required to tow the televator into position.

The televator often proved cumbersome and was never used for maintenance on the outside walls of the building. Instead, the workers were routinely instructed by the "lead man” to use the front-end loader as an elevator by raising the workers in the bucket.² This occasion was no different.

To accomplish the task, Mr. Koss drove the front-end loader from the garage through the Midwest Mall’s public parking lot to the work site. He instructed the work crew to stand in the bucket of the front-end loader and install the Christmas wreaths.

The loader was positioned on the lawn and sidewalk area, immediately adjacent to the wall where Mull and Ramik were to install the Christmas wreaths. As Wilkerson extended the wreaths over the roof and down the wall, Mull and Ramik were elevated up the side of the wall to the wreath. At that point, Ramik pushed the wreath into position, and Mull attached the wreath to the wall._

Seconds later, Mull gave Koss a "thumbs up” sign, which indicated that he wanted the bucket raised so that he could fasten the top of the wreath to another stud attached to the wall. However, rather than going straight up, the loader lurched forward causing the bucket to suddenly move forward and up.³ As a result, Mull’s right foot was crushed between the edge of the bucket and the wall.

The Mulls filed this negligence action pursuant to the civil liability act, MCL 257.401; MSA 9.2101. They sought damages incurred as a result of William Mull’s injuries, including Dorothy Mull’s loss of her husband’s love, society, companionship, and consortium.

Midwest Malls moved for summary disposition under MCR 2.116(0(10), on the grounds that the front-end loader was not a motor vehicle for purposes of MCL 257.401; MSA 9.2101, and, alternatively, that the machine was not being used as a motor vehicle at the time of the accident.⁴ The trial court found that the front-end loader was a motor vehicle for purposes of the owner’s liability statute,⁵ and denied defendants’ motions for summary disposition and for a rehearing or reconsideration.

Subsequently, the jury found that Koss was negligent in the operation of the front-end loader and that his negligence was a proximate cause of William Mull’s injuries. The trial court entered judgment in the Mulls’ favor consistent with the jury verdict. Consequently, Midwest Malls moved for judgment notwithstanding the verdict, a mistrial, and a new trial. The trial court denied these motions. The Court of Appeals affirmed. 196 Mich App 411; 493 NW2d 447 (1992).

We granted leave to appeal on June 16, 1993.⁶

ii

A

The following statutory provisions are germane to the question under consideration:

The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the motor vehicle whether the negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in the operation of the motor vehicle as the rules of the common law requires [sic]. [MCL 257.401(1); MSA 9.2101(1). Emphasis added.]

The act defines motor vehicle as follows:

"Motor vehicle” means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from over-head trolley wires, but not operated upon rails. [MCL 257.33; MSA 9.1833. Emphasis added.]

For present purposes, the key word in the above definition is vehicle, which is defined in the code as follows:

"Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws. [MCL 257.79; MSA 9.1879. Emphasis supplied.]

Defendant Midwest Malls contends that the Legislature, in enacting the owner’s liability statute, intended to provide for liability exclusively for those vehicles that are either operated on a public highway or that may be lawfully operated on a public highway. In addition, defendant posits Frazier v Rumisek, 358 Mich 455; 100 NW2d 442 (1960), for the proposition that the owner’s liability statute was enacted solely in response to the rising number of injuries resulting from automobile accidents, and concludes that it does not apply in this case. We disagree.

B

In the case before us, we must once again define the term "motor vehicle” and construe the phrase "may be.” This language has received conflicting interpretations in lower court decisions. See Calladine v Hyster Co, 155 Mich App 175; 399 NW2d 404 (1986); Jones v Cloverdale Equipment Co, 165 Mich App 511; 419 NW2d 11 (1987); Mull v Equitable Life Assurance Society, supra. Accordingly, well-recognized rules of statutory construction must be employed.⁷

Acknowledged authorities have declared that "motor vehicle” has a broader meaning than automobile.⁸ It is a generic term for all classes of self-propelled vehicles not operated on stationary rails or tracks. Jernigan v Hanover Fire Ins Co of New York, 235 NC 334, 335-336; 69 SE2d 847 (1952).⁹ Michigan’s owner liability statute provides that a motor vehicle is any vehicle that is self-propelled and any vehicle that is propelled by electric power.¹⁰ As explained below, we think it clear that, under the owner’s liability statute, every machine that is self-propelled and could be used to transport people or property on a highway, is a motor vehicle.

Both parties agree that this Court interpreted the legislative intent in enacting the owner’s liability statute in Frazier, supra. The Court stated:

The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v Palmer, 350 Mich 363 [86 NW2d 585 (1957)], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use. [Id. at 457. Emphasis added.]

In Frazier, we impliedly refused to narrowly construe the owner’s liability statute. Instead, we held that an owner is liable for the negligent operation of the machine owned by him when he had consented to its use. Id. Similarly, in Ladner v Vander Band, 376 Mich 321, 327; 136 NW2d 916 (1965), we ruled that the ownership liability statute included motor vehicles operated upon the highway and other vehicular traffic.

We reasoned:

Nothing in the present title or in the act limits application of the ownership liability section to motor vehicles "operated upon the public highways of this State.” The title of PA 1949, No 300, provides as follows (2A CLS 1961, p 90 [8 Stat Ann 1960 Rev, p 52]):

"An act to provide for the registration, titling, sale and transfer, and regulation of vehicles operated upon the public highways of this State; to provide for the licensing of vehicle dealers and wreckers; to provide for the examination, licensing and control of operators and chauffeurs; to provide for the giving of proof of financial responsibility and security by owners and operators of vehicles; to provide for the imposition, levy and collection of specific taxes on vehicles, and the levy and collection of sales and use taxes, license fees and permit fees; to provide for the regulation and use of streets and highways; to provide penalties for violation of any of the provisions of this act; to provide for civil liability of owners and operators of vehicles and service of process on nonresidents; and to repeal all other acts or parts of acts inconsistent herewith or contrary hereto.” (Emphasis supplied.)

It would appear from an analysis of the title that the intent of the legislature was not to limit the civil liability provisions to "public highways” or it would have so provided within the civil liability portion of the title.

Likewise, in analyzing the ownership liability provisions of the statute, again the legislature did not see fit to so limit the liability to "vehicles operated upon the public highways,” but provided as follows:

"Sec. 401. Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the State or in the failure to observe such ordinary care in such operation as the rules of the common law requires [sic].” (Emphasis supplied.)

Had the legislature intended to limit ownership liability to "vehicles operated upon the public highways” it would have used language to carry out such intent.

We conclude, therefore, that the ownership liability statute is not restricted to the operation of motor vehicles upon public highways. [Id. at 326-328.]

Later, in Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968), lv den 382 Mich 754 (1969), the plaintiff evoked the owner’s liability statute for an accident involving a bulldozer that occurred on the highway. The Court held that a bulldozer was a motor vehicle for the purpose of uninsured motor vehicle coverage because it is a self-propelled device that is or may be transported or driven upon a highway. Id. at 339-340.

Moreover, the Motor Vehicle Registration Act, MCL 257.216; MSA 9.1916 states:

Every motor vehicle ... is subject to the registration and certificate of title provisions of this act except the following:

(d) Special mobile equipment ....

"Special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including farm tractors, road construction or maintenance machinery .... The foregoing enumeration shall be considered partial and shall not operate to exclude other vehicles which are within the general terms of this deñnition. [MCL 257.62; MSA 9.1862. Emphasis supplied.]

We believe that the Legislature’s special mobile equipment exemption from the Motor Vehicle Registration Act makes it unmistakable that a front-end loader is encompassed in the definition of a motor vehicle and thus supports this Court’s broad construction of the owner’s liability statute and the classification of all self-propelled vehicles not operated upon stationary rails or tracks as motor vehicles. See Frazier, supra. Consequently, we find that the owner’s liability statute imposes liability for a broad set of risks, caused by motor vehicles of all types, whether used on public highways or other areas open to the public at large, and, accordingly, it is that purpose that must be considered in resolving this dispute.

c

Further, the defendants urge this Court to construe the "is or may be” language to impose a requirement that a motor vehicle be capable of lawful operation on a highway in order to be considered a vehicle for ¿he purpose of the owner’s liability statute. As a general rule, the word "may” will not be treated as a word of command unless there is something in the context or subject matter of the act to indicate that it was used in such a sense. Bloom v Texas State Bd of Examiners of Psychologists, 475 SW2d 374, 377 (Tex Civ App, 1972), rev’d on other grounds.¹¹ Accordingly, the term "may be” is equivalent to possibly, perhaps, by chance. State v Howland, 153 Kan 352, 360; 110 P2d 801 (1941). The defendants interpretation of "is or may be” runs afoul of fundamental principles of statutory construction. A statute must be construed without violating the plain wording of the act so as to accomplish the intent and purpose of the Legislature.

The amici curiae, The Associated General of Contractors of America, et al, along with defendants, claim that a front-end loader is not a motor vehicle because it is incapable of lawful operation upon a highway. They point out that construction equipment is not designed to be driven over the highways and that such equipment lacks the safety requirements applicable to other motor vehicles.¹² Amici curiae also claim that the Court of Appeals decision has erroneously transformed construction equipment into motor vehicles under the Motor Vehicle Code.

MCL 257.62; MSA 9.1862 and MCL 257.216(d); MSA 9.1916(d), were enacted in 1949. Since their enactment, construction equipment as well as other types of special mobile equipment enumerated in the statute have been considered to be motor vehicles under the Motor Vehicle Code. Therefore, amici curiae’s assertion is simply incorrect because all such equipment is capable, under limited circumstances, of being lawfully operated on the public highways of this state. See Woods v Progressive Mutual Ins Co, supra at 337, n 3,¹³ and Harder v Harder, 176 Mich App 589; 440 NW2d 53 (1989).

The controversy in this case exists because the Court of Appeals panel in Calladme, supra, erroneously interpreted the language of this Court’s decision in Frazier and failed to look at Ladner. The Calladme panel ruled that because the forklift could not be lawfully operated on a highway and was not being driven upon the highway at the time of the accident, the Legislature did not intend that the forklift fall within the purview of the owner’s liability statute. Id. at 181. Later, in Jones v Cloverdale Equipment Co, supra, the Court of Appeals addressed the same issue again. The trial court granted summary disposition for the defendant, quoting the Calladme panel’s interpretation of the "is or may be” language found in the definition of vehicle. The Jones panel determined that a forklift was incapable of lawful operation on a highway. Consequently, under Calladme, a forklift is not a vehicle and therefore not a motor vehicle for purposes of the owner’s liability statute. Id. at 514.

In view of general rules of statutory construction, the Calladme and Jones panels’ rulings were impermissibly narrow, especially in light of Frazier and Ladner. Section 401 of the civil liability act has been in existénce since 1949. It has been amended three times in the last forty-four years, and the Legislature has never seen fit to add language to that chapter that says, "This provision applies only to accidents occurring on the highway,” or "This provision pertains only to vehicles capable of lawful operation on the highway.”

Conversely, if you look at § 601, which is the beginning section of the chapter on obedience to traffic laws, there the Legislature specifically stated, "The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a given section.” MCL 257.601; MSA 9.2301.

The defendant also argues that the no-fault act should be considered in pari materia with the Motor Vehicle Code definition of motor vehicle for confirmation and clarification. However, we find that no clarification is gained by attempting to consider the two acts in pari materia.¹⁴

The definitions of MCL 257.33; MSA 9.1833 and MCL 257.79; MSA 9.1879 clearly include within their purview the vehicle involved in the accident that injured the plaintiff. Furthermore, there is nothing in either definition to suggest that vehicles that meet the definition must be capable of lawful operation on the highway. If the Legislature had intended to limit ownership liability to those devices that could lawfully be operated on a highway, it would have used such language to carry out its intent. Therefore, we find that a front-end loader is a motor vehicle.

Comprehensive liability insurance is akin to "all risk insurance.”¹⁵ All-risk insurance is a special type of insurance policy that, as a rule, covers every loss that may occur, except as a result of fraudulent acts of the insured.¹⁶ Midwest Malls purchased a comprehensive liability insurance policy to cover risks. The risk of injury from the negligent operation of the front-end loader is a risk that should have been covered under that policy.

CONCLUSION

In summary, we hold that MCL 257.401; MSA 9.2101 applies to the present action. The phrase "may be” connotes possibility; it does not connote certainty or lawfulness. The front-end loader involved in the accident is a motor vehicle because it is self-propelled and capable of transporting people or property upon a highway. We affirm the decision of the Court of Appeals.

Cavanagh, C.J., and Levin and Brickley, JJ., concurred with Mallett, J.

1 On November 15, 1987, the date of plaintiff’s injury, defendant Midwest Malls Limited Partnership was the owner of Southland Mall. Midwest Malls was also the owner of the front-end loader involved in the accident.

2 This was done even though using the loader in that fashion violated miosha regulations as well as the front-end loader safety manual.

3 Mr. Mull testified that the front-end loader rolled back while the bucket moved forward and up.

4 The requirement of the no-fault act that a vehicle be used "as a motor vehicle” has no application in this case because the case is brought exclusively under the owner’s liability statute.

5 In denying defendants’ motion for summary disposition, the trial court relied on Harder v Harder, 176 Mich App 589; 440 NW2d 53 (1989).

6 442 Mich 926.

7 It is well settled in Michigan that when construing statutes, courts must ascertain and give effect to the Legislature’s intent. Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590, 595; 339 NW2d 470 (1983). This is accomplished by interpreting statutory language according to its commonly accepted meaning. Production Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301; 273 NW2d 10 (1978), rev’g 68 Mich App 409; 242 NW2d 794 (1976), and aff ’g 72 Mich App ; 250 NW2d 85 (1976). Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. Gardner-White Co v State Bd of Tax Administration, 296 Mich 225, 230; 295 NW 624 (1941).

8 The term "motor vehicles,” although sometimes regarded as synonymous with or limited to automobiles, often has a broader meaning. Black’s Law Dictionary (4th ed), pp 1164-1165. See also 1 Long, Liability Insurance, § 4.07, pp 4-28 to 4-30.

9 See also Gibbs v Mayo, 81 So 2d 739, 740 (Fla, 1955) (a motor vehicle is a self-propelled vehicle that in or on which a person or thing is or may be carried); Zuber v Clarkston Construction Co, 315 SW2d 727, 733-734 (Mo, 1958) (self-propelled earth moving machines designed and intended to carry materials were motor vehicles within the meaning of the statute prohibiting any person from operating, tampering with, or climbing upon any motor vehicle or setting machinery thereof in motion without permission of owner or person in charge).

10 MCL 257.33; MSA 9.1833.

11 See also Buttles v Navarro, 766 SW2d 893, 894 (Tex App, 1989) (the word "may” is a word of permission rather than a word of command unless there is something in the subject or the context of the statute to indicate a legislative intent that it was used as a word of command); Cowen v Bd of Water Comm’rs, 411 Mass 744, 751; 585 NE2d 737 (1992) (the word "may” is one of permission and not of command; it should be construed, if possible, in accordance with the legislative intent); Smith v School Dist No 6, Fractional, Amber Twp, 241 Mich 366, 369; 217 NW 15 (1928) (a court should give to the permissive word "may” its ordinary and accepted meaning unless to do so would frustrate the legislative intent).

12 The front-end loader lacked the following: backup lights, turn signals, flashing hazard lights, speedometer, and headlights (although it did have lights on top of the cab).

13 [1915 PA 302], § 1, excepted from the definition of "motor vehicles,” "traction engines, road rollers . . . and such vehicles as run only upon rails or tracks.” That act was amended by [1941 PA 162], to except also "vehicles not designed for or employed in general highway transportation of persons or property and occasionally operated or moved over the public highway, including road construction or maintenance machinery, well-boring apparatus, ditch-digging apparatus and implements of husbandry.” The 1915 act as so amended was repealed by [1949 PA 300], which enacted the present motor vehicle code containing the definitions of "motor vehicle” and "vehicle” previously quoted in this opinion.

In Haveman v [Kent Co Rd Comm’rs, 356 Mich 11, 24; 96 NW2d 153 (1959)], the Michigan Supreme Court considered these definitions and declared that a road maintenance machine was not a motor vehicle under the 1915 act, as amended, but was a motor vehicle under the 1949 act.

In OAG 1933-1934 [pp 122-124 (November 29, 1932)] Attorney General Voorhies ruled that a tractor road grader was a motor vehicle after considering the definition in [1915 PA 302] and the definitions of "vehicle” and "motor vehicle” in [1929 CL] 4693, and in [1931 PA 91], which latter definitions are in all relevant respects the verbatim antecedents of the definitions in presently governing [1949 PA 300],

See, also, Behling v County of Los Angeles, 139 Cal App [2d] 684; 294 P2d 534 (1956), Lambert v Southern Counties Gas Company of California, 52 Cal 2d 347; 340 P2d 608 (1959); Zuber v Clarkston Const Co [n 9 supra]; Peterson v King County, 199 Wash 106; 90 P2d 729 (1939). [Id. at 339, n 5.]

14 It is important to note that neither the trial court nor the Court of Appeals addressed this issue. The doctrine of in pari materia is simply an interpretative tool to be used in determining the meaning of ambiguously worded statutes. The two definitions of "motor vehicle” under the Motor Vehicle Code and in the no-fault act are separate and independent. Furthermore, the premise of our holding is that the statute is not ambiguous. Instead, the controversy in this matter exists only because of the erroneous interpretation of this Court’s decision in Frazier by the Court of Appeals panel in Calladme, and its failure to look at this Court’s decision in Ladner. Therefore, we find it is unnecessary to address the issue whether the owner’s liability statute was modified by the no-fault act because this case was brought solely under the owner’s liability statute.

15 See Black’s Law Dictionary (6th ed), p 802.

16 Id. at 802. See also 13A Couch, Insurance, 2d (rev ed), § 48:141, p 139.