Kemp v. Farm Bureau General Insurance Company of Michigan
Docket No. 151719
Trial Lawyers' Bottom Line: Removing goods from a car counts as using a motor vehicle "as a motor vehicle" for the parked vehicle exception for PIP benefits.
Kemp hurt himself when removing items from his car. He sought no-fault benefits, but the insurance company moved for summary disposition, arguing that his injury didn’t arise out of the ownership, operation, maintenance, or use of the parked vehicle; he didn’t meet the parked vehicle exception; and his injury didn’t have a causal relationship to the vehicle. The trial court granted the motion, and the Court of Appeals affirmed. The question was whether Kemp had created a genuine issue of material fact under the parked-motor-vehicle exception in MCL 500.3106(1)(b).
Typically, an injured person cannot recover for an injury involving a parked car unless he or she demonstrates that one of the three statutory exceptions in MCL 500.3106(1) applies. Kemp argued that his injury fell under 3106(1)(b), which permits recovery if “the injury was a direct result of physical contact with the 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.” In Putkamer v Transamerica Insurance Corporation of America, 454 Mich 626 (1997), the Court described its three-element test for injuries related to parked cars: (1) the conduct must fit one of the three exceptions in 3106(1); (2) the injury must have arisen “out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle; (3) the injury must have “had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for.”
Justice Viviano authored the majority opinion and was joined by Justices Larsen, McCormack, and Bernstein. The majority first found that kemp had created a genuine issue of material fact under 3106(1)(b) about whether he was injured as he was lowering his “property” from the car. The Court said this left the question of whether a reasonable jury could find that his injury was the “direct result” of his physical contact with the property. The Court said yes, because Kemp had testified: “I leaned in the vehicle, picked up my items, brought them outside as I twisted to set them down. That’s when I heard bang, stuff fell to the ground, I fell in the truck.”
The Court cited a number of cases for the proposition that a plaintiff’s injury can be caused “by the kinetic energy, weight, or some other physical property associated with the thing being loaded or unloaded from a parked motor vehicle.” The Court said it was for the jury to decide whether Kemp’s property—a “bundled-together briefcase, overnight bag, thermos, and lunch box—was heavy enough to cause this.
Next the Court turned to what it called the “transportational function requirement,” which comes from the statute’s requirement that the injury result from use of a motor vehicle “as a motor vehicle.” It pulled from its decision in McKenzie v Auto Club Insurance Association, 458 Mich 214 (1998), which outlined the contours of this rule. The Court held that “conveyance of one’s belongings” is “closely related” (the test articulated in McKenzie) to using a motor vehicle as a motor vehicle. In reaching this conclusion, the Court rejected the analysis in Shellenberger v Insurance Company of North America, 182 Mich App 601 (1990).
Lastly, the Court turned to causation. The Court said, “We believe that plaintiff’s injury—suffered while he was unloading his property from his vehicle upon his arrival home—was foreseeably identifiable with the normal use of the vehicle.” For all these reasons, the Court held that Kemp had established a genuine issue of material fact and reversed.
Justice Zahra, joined by Justices Markman and Wilder, dissented. The dissent’s disagreement stemmed from the language of 500.3106(1)(b), which requires that “the injury was a direct result of physical contact . . . with property.” The dissent rejected the majority’s “kinetic energy” argument and thus did not agree that Kemp established a question of fact that his injury was a “direct result” of physical contact with his property.
Justice Zahra also disagreed with Putkamer’s causation test, which he thought departed from the statute’s text. Put simply, the Putkamer causation test speaks to proximate causation. Justice Zahra thought that the statute, which requires the injury be a “direct result,” spoke only to cause-in-fact or but-for causation and thus this is all that should be required.
Full opinion here.