Tamara Woodring v. Phoenix Insurance Company

STATE OF MICHIGAN

COURT OF APPEALS

TAMARA WOODRING, FOR PUBLICATION

June 28, 2018

Plaintiff-Appellee, 9:10 a.m.

v No. 324128

Muskegon Circuit Court

PHOENIX INSURANCE COMPANY, LC No. 14-049544-NI

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.

RONAYNE KRAUSE, P.J.

Defendant appeals as on leave granted, pursuant to an order of remand from our Supreme

Court, the trial court’s denial of summary disposition in defendant’s favor and grant of summary

disposition in plaintiff’s favor. For purposes of the instant appeal, the facts are undisputed.

Plaintiff’s employer provided her with a vehicle, which was insured by defendant. Plaintiff went

to a self-serve spray car wash in early February, parked but left the vehicle running, began

washing the vehicle, and as she worked her way around to the rear of the vehicle, she slipped and

fell, suffering serious injuries. It is unknown why plaintiff slipped, or what she slipped on, but

she believes it may have been ice. It is undisputed that plaintiff was not entering, occupying,

exiting, or touching the vehicle at the time of her fall, although she was using the car wash’s

sprayer wand. The trial court’s denial and grant of summary disposition was based in significant

part on the fact that precedent from our Supreme Court, which was confusing, had not clearly

overruled precedent from this Court, which was therefore still good law. We agree and affirm.

As an initial matter, the remand order from our Supreme Court reads, in its entirety, as

follows:

By order of September 27, 2016, the application for leave to appeal the

March 3, 2015 order of the Court of Appeals was held in abeyance pending the

decision in Spectrum Health Hospitals v Westfield Ins Co (Docket No. 151419).

On order of the Court, the case having been decided on June 30, 2017, 500 Mich

[1024; 897 NW2d 166] (2017), the application is again considered and, pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case

to the Court of Appeals for consideration as on leave granted. Among the issues

to be considered, the Court of Appeals shall address whether the causal

connection between the plaintiff’s injuries and the maintenance of a motor vehicle

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as a motor vehicle is more than incidental, fortuitous, or “but for.” Thornton v

Allstate Ins Co, 425 Mich 643, 659 (1986). [Woodring v Phoenix Ins Co, 501

Mich 883; 901 NW2d 887 (2017).]

The decision in Spectrum consisted entirely of an order remanding that case to this Court for

reconsideration in light of Convent Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191;

895 NW2d 490 (2017). That case addresses whether a healthcare provider has a statutory cause

of action against an insurer for the payment of PIP benefits; it does not appear to address any

issues relevant to the instant appeal.

Plaintiff argues that the issue specified for consideration by our Supreme Court was not

argued in the trial court and, therefore, is allegedly unpreserved. It is true that defendant only

mentioned the requirement in its brief and provided no supporting argument whatsoever.

However, defendant did argue at the motion hearing that plaintiff’s act of washing her vehicle

did not constitute a sufficient causal nexus, but rather “just merely a fortuitous location where the

accident happened.” Defendant clearly makes a significantly more thorough argument on

appeal, but that does not preclude appellate consideration where the issue itself is not wholly

novel. See Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002). In any event,

because we may not disregard explicit and comprehensible instructions given to us by our

Supreme Court, plaintiff’s argument is misplaced. We will address this issue second.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire

record to determine if the moving party is entitled to judgment as a matter of law. Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR

2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all

evidence submitted by the parties in the light most favorable to the non-moving party and grants

summary disposition only where the evidence fails to establish a genuine issue regarding any

material fact. Id. at 120. The interpretation and application of statutes, rules, and legal doctrines

is reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

Much of the instant appeal turns on whether this Court’s opinion in Musall v Golcheff,

174 Mich App 700; 436 NW2d 451 (1989), remains precedential. Defendant argues that it is not

binding pursuant to 7.215(J)(1), the “first-out rule,” while citing an unpublished opinion that is

clearly not binding pursuant to MCR 7.215(C)(1). Unpublished cases are significantly less

persuasive; this Court may not be strictly bound to follow older published cases, but traditionally

regards them as retaining some authority, at least where they are not disputed by some other

contemporaneous case. Indeed, MCR 7.215(J)(1) does not state, as does MCR 7.215(C)(1), that

older cases are not precedentially binding, only that later ones must be followed. In contrast,

MCR 7.215(C)(1) explicitly states that unpublished opinions “should not be cited for

propositions of law for which there is published authority,” whereas no similar restriction applies

under MCR 7.215(J)(1). Defendant’s argument is therefore, disingenuous.

Our Supreme Court “recognizes the maxim expressio unius est exclusio alterius; that the

express mention in a statute of one thing implies the exclusion of other similar things.” Bradley

v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 677 (1997).

Interpretation of a court rule follows the general rules of statutory construction. Grievance

Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000). We think it

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reasonable to draw the negative inference that we are not strictly required to follow

uncontradicted opinions from this Court decided prior to November 1, 1990, but we think they

are nevertheless considered to be precedent and entitled to significantly greater deference than

are unpublished cases. Consequently, we are not impressed by the suggestion that Musall has no

precedential effect simply because it is an older case.

That being said, this Court may not follow any opinion previously decided by this Court,

no matter when, to the extent that opinion conflicts with binding precedent from our Supreme

Court, which may be any essentially anything it issues that conforms to Const 1963, Art 6, § 6.

DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369-370; 817 NW2d 504 (2012). This

includes peremptory orders to the extent they can theoretically be understood, even if doing so

requires one to seek out other opinions, notwithstanding, with all due respect, the enormous

confusion they sow and the frustration they generate. Id.; see also People v Crall, 444 Mich 463,

464 n 8; 510 NW2d 182 (1993); Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650

NW2d 364 (2002). Defendant thus relies on the argument that Lefevers v State Farm Mut

Automobile Ins Co, 493 Mich 960; 828 NW2d 678 (2013), and Frazier v Allstate Ins Co, 490

Mich 381; 808 NW 2d 450 (2011), because they partially “disavowed” Miller v Auto-Owners Ins

Co, 411 Mich 633; 309 NW2d 544 (1981), upon which Musall relied. This convoluted chain

thus depends on what exactly “disavowal” means and whether the peremptory orders are

comprehensible.

Although no published cases have defined the difference, “disavowal” must mean

something distinct from “overruling.” See, e.g., Renny v Dep’t of Transportation, 478 Mich 490,

505 n 36; 734 NW2d 518 (2007). It appears clear from usage that disavowal is a pronouncement

that a rule of law stated in a case no longer applies without otherwise touching the result of the

prior judgment. See Ray v Swager, 501 Mich 52, 72 n 49; 903 NW2d 366 (2017); Kidder v

Ptacin, 284 Mich App 166, 171; 771 NW2d 806 (2009). Disavowal is, therefore, a repudiation

that recognizes that a rule of law has been overruled as a consequence of some other decision,

holding, or pronouncement, without itself constituting that overruling.

Because Lefevers can be comprehended, it is precedent binding on this Court and thus

precludes this Court from relying on any prior decisions in conflict with it. Lefevers

unambiguously held that Miller was disavowed to the extent it conflicts with Frazier, which did

not itself mention Miller at all. However, Lefevers only stated that the exact portion of Miller

that was “disavowed as dicta” was as follows:

Section 3106(b) recognizes that some parked vehicles may still be operated as

motor vehicles, creating a risk of injury from such use as a vehicle. Thus a parked

delivery truck may cause injury in the course of raising or lowering its lift or the

door of a parked car, when opened into traffic, may cause an accident. Accidents

of this type involve the vehicle as a motor vehicle. [Lefevers, 493 Mich at 960,

quoting Miller, 411 Mich at 640.]

That is as far as the order went. We cannot comprehend any holding beyond that, and we think it

would be inappropriate to imply anything additional to the order. The fact that Miller was only

partially “disavowed” necessarily means that the trial court properly found Miller to also remain

“good law” in part. Indeed, our Supreme Court has even recently cited Miller as remaining

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binding precedent at least in part. See Kemp v Farm Bureau Gen Ins Co of Michigan, 500 Mich

245, 542 n 36; 901 NW2d 534 (2017).

In Miller, our Supreme Court observed that it was incongruous for MCL 500.3105(1) to

provide PIP benefits for, inter alia, maintenance of a motor vehicle as a motor vehicle, but for

MCL 500.3106(1) to simultaneously provide that parked vehicles were generally excluded,

because maintenance was usually not performed on vehicles while they are in motion and the

exceptions seemed irrelevant to maintenance. Miller, 411 Mich at 637-638. This is completely

logical. Consequently, the Miller Court turned to an analysis of the policies underlying the No-

Fault Act and the various provisions of it. Id. at 638-641.

In so doing, the Court concluded that the parking exclusion reflected a policy decision

that parked cars were generally not operating as motor vehicles except in three general

circumstances in which “an accident is nonetheless directly related to its character as a motor

vehicle.” Id. at 640-641. Thus:

The policies underlying § 3105(1) and § 3106 thus are complementary rather than

conflicting. Nothing of the policy behind the parking exclusion to exclude

injuries not resulting from the involvement of a vehicle as a motor vehicle

conflicts with the policy of compensating injuries incurred in the course of

maintaining (repairing) a motor vehicle. The terms of the parking exclusion

should be construed to effectuate the policy they embody and to avoid conflict

with another provision whose effect was intended to be complementary. […]

[The plaintiff’s] injury while replacing his shock absorbers clearly involved the

maintenance of his vehicle as a motor vehicle. Compensation is thus required by

the no-fault act without regard to whether his vehicle might be considered

‘parked’ at the time of injury.” [Id. at 641.]

Plaintiff accurately points out that the plaintiff in Frazier was not engaged in any kind of

maintenance, but rather simply closing the door of the vehicle after having alighted from the

vehicle. Frazier, 490 Mich at 386-387. Likewise, it is apparent from this Court’s opinion in

Lefevers, to which we must refer in order to fully comprehend our Supreme Court’s order, that

the plaintiff in that case was also not engaging in maintenance, but rather attempting to open a

trailer liftgate. Lefevers v State Farm Mut Automobile Ins Co, unpublished opinion per curiam of

the Court of Appeals, decided December 13, 2011 (Docket No. 298216), slip op at p 2.

Nothing in either Frazier or Lefevers directly undermines the holding in Miller that the

parked-vehicle exception in MCL 500.3106(1) is simply not triggered if an injury is caused by

the maintenance of a vehicle as a motor vehicle, whether or not the vehicle is in fact parked.

Plaintiff’s claim is not that her Jeep was being operated as a motor vehicle, but rather maintained

as a motor vehicle. The portion of Miller holding that the “parked vehicle” exception is not

triggered was, therefore, not apparently affected.

Defendant argues that Frazier and Lefevers are not the only cases from our Supreme

Court that have the effect of overruling the relevant holding of Miller. Defendant relies

extensively on our Supreme Court’s holding that scraping ice off a vehicle’s windshield was

unrelated to, inter alia, maintenance of a motor vehicle as a motor vehicle. Willer v Titan Ins

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Co, 480 Mich 1177; 747 NW2d 245 (2008). Notably, however, nothing in Willer stated that

scraping ice was or was not maintenance; rather, it only addressed causation, which would be a

function of MCL 500.3105. Even more notably, it was an appeal from an order of this Court

denying an application for leave with no factual discussion. Our Supreme Court’s peremptory

orders are, after all, only binding to the extent they can be comprehended. Because there are no

facts in either our Supreme Court’s order or this Court’s order from which any hints may be

gleaned, nothing in that order can be comprehended as contributing any value whatsoever to an

understanding of what does, or does not, constitute “maintenance.” It did not mention Miller

except in a concurring opinion, and therefore it appears to have no precedential relevance to

Miller or any holding relevant in it.

Otherwise, far from overturning it, our Supreme Court has reiterated that Miller had

found “that because the injury arose out of ‘maintenance’ of the vehicle, it was unnecessary to

consider whether the vehicle was parked,” but rather cautioned “that the Miller holding is limited

to the narrow circumstances of that case.” Winter v Automobile Club of Michigan, 433 Mich

446, 457; 446 NW2d 132 (1989); Putkamer v Transamerica Ins Corp of America, 454 Mich 626,

632 n 5; 563 NW2d 683 (1997). It is only otherwise that “[w]here the motor vehicle is parked,

the determination whether the injury is covered by the no-fault insurer generally is governed by

the provisions of subsection 3106(1) alone.” Putkamer, 454 Mich at 632. Our Supreme Court

further clarified that the No-Fault Act was fundamentally intended to restrict payment of PIP

benefits under MCL 500.3105 to injuries related to the “transportational function” of a motor

vehicle, but the vehicle did not necessarily need to be in motion. McKenzie v Auto Club Ins

Ass’n, 458 Mich 214, 220-226; 580 NW2d 424 (1998).

Obviously, Miller is no longer binding precedent in its entirety. However, its essential

holding that “maintenance” of a parked vehicle will, at least under some circumstances, avoid

triggering MCL 500.3106(1) does not appear to have been implicitly or explicitly overruled. If

anything, it has been reaffirmed, subject only to whatever our Supreme Court meant by “the

narrow circumstances of that case.” In the absence of any clarification of that statement, the

most rational interpretation is to rely on the policy discussion in Miller itself, filtered through the

policy discussion in McKenzie. The gravamen of Miller is that because most forms of vehicular

maintenance literally cannot be performed unless a vehicle is parked, the word “maintenance” in

MCL 500.3105(1) would be rendered nugatory by MCL 500.3106 unless that maintenance

avoided triggering MCL 500.3106 altogether. McKenzie would suggest that any such

maintenance must have some bearing on the “transportational function” of the vehicle.

Clearly, just as Michigan residents are completely expected to have some awareness of

the practical implications of snow and ice, any Michigan resident would be aware that keeping

their cars clean keeps them running longer and without danger. Considering the condition of our

roads and the salt used for snow and ice on our roads, cleaning a car is essential to be able to see

while driving. Nothing in McKenzie, Winter, Putkamer, Willer, Frazier, or Lefevers is

inconsistent with this Court’s finding in Musall that washing a car does indeed constitute the

kind of maintenance that will avoid the operation of MCL 500.3106(1). Consequently, they do

not implicitly or explicitly overrule Musall. It is essential to see out of the windows and

windshield while driving or risk injury or death to the driver or others.

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We additionally note that the word “parked” is not defined in the No-Fault Act, and in

fact only occurs in two sections out of the entirety of Chapter 500, those being MCL 500.3106

and MCL 500.3123. This necessarily implicates the question of whether plaintiff’s vehicle was

even “parked” at all. While it may seem intuitively obvious, almost every intuitively obvious

categorization scheme inevitably breaks down into “I know it when I see it,” which is precisely

the opposite of a definition and thus an open invitation to capriciousness and unpredictability.

In particular, it should be clear that a vehicle is not necessarily “parked” just because it is

stopped, halted, standing, or otherwise not presently in motion. Indeed, our Supreme Court has

indicated that a lack of vehicular movement merely triggers a requirement to consider whether

the vehicle is therefore “parked.” Winter, 433 Mich at 455. In that case, a tow truck “positioned

perpendicular to the street with the front wheels against the curb” with the hand brake set was

deemed “parked” while it was being used to assist the plaintiff in lifting and leveling concrete

slabs. Id. at 448-449, 456. In contrast, it would seem completely unreasonable to conclude that

a vehicle that is unambiguously still within the flow of traffic but temporarily motionless should

not be considered a “parked” vehicle under the No-Fault Act. Indeed, this Court has explicitly

noted that a vehicle stopped at a traffic light does not constitute a “parked vehicle.” Bachman v

Progressive Cas Ins Co, 135 Mich App 641, 642-643; 354 NW2d 292 (1984).

This Court subsequently applied the definition of “parking” found in MCL 257.38 of the

Motor Vehicle Code, which defines it as “standing a vehicle, whether occupied or not, upon a

highway, when not loading or unloading except when making necessary repairs.” United

Southern Assurance Co v Aetna Life & Cas Ins Co, 189 Mich App 485, 488-490; 474 NW2d 131

(1991). This Court further noted that this definition was similar to the dictionary definition, and

opined that parking, standing, and stopping at the edge of a highway were synonymous. Id. This

latter definition is, however, extremely troublesome because it obviously has no application

anywhere other than on an expressway; it would also seem to hold that a vehicle is by definition

not parked “when making necessary repairs” even if it is not moving. It would also seem to

indicate that a vehicle is “parked” while motionless at a traffic light. It is not workable to rely on

MCL 257.38 anywhere other than on a highway, given its intended exclusive application to the

regulation of vehicles on highways. See Kudek v Detroit Auto Inter-Insurance Exch, 100 Mich

App 635, 640-641; 300 NW2d 350 (1980), rev’d on other grounds 414 Mich 956 (1982). It is

likewise unworkable simply to treat any vehicle not presently in motion as “parked.”

The most coherent and succinct definition of what constitutes a “parked” vehicle is

whether it was “in use as a motor vehicle” or more “like ‘other stationary roadside objects that

can be involved in vehicle accidents.’” Heard v State Farm Mut Auto Ins Co, 414 Mich 139,

145; 324 NW2d 1 (1982). Ironically, in Heard, neither our Supreme Court nor this Court

analyzed why the car, which was at a gasoline station where the plaintiff was pumping gasoline

into it, was considered “parked” in that case; rather, both Courts appear to have presumed so and

instead discussed whether it was “involved” in the accident. Insofar as we can determine, the

plaintiff in Heard asserted that the vehicle had been parked, and the issue was never disputed.

Similarly, in Musall, this Court treated the vehicle as parked but never analyzed the issue.

A somewhat less clear case is MacDonald v Michigan Mut Ins Co, 155 Mich App 650;

400 NW2d 305 (1986). Superficially, this Court apparently held that if the wheels were not

moving, the vehicle was “parked.” Id. at 655-656. However, a more careful reading of the case

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and its context reveals that the trailer was in the process of having its wheels and axle adjusted,

and it was fundamental to that particular operation that the wheels were supposed to be

stationary while the trailer box was moved. Id. at 653. The plaintiff contended on appeal that

the vehicle was not really parked because some slight shifting back and forth of the trailer box

occurred; it was in that context that this Court focused on the movement of the wheels. Id. at

654-656. It therefore appears that the vehicle in question was in no state whatsoever to be

operated and, consequently, was transportationally indistinguishable from any other piece of

heavy equipment undergoing maintenance. This Court never addressed the maintenance

exception pursuant to Miller, however, because the plaintiff was denied benefits under MCL

500.3106(2), not MCL 500.3106(1). Id. at 654.

Notably, of the cases that have expressly analyzed what constitutes “parked,” the tow

truck in Winter was being used as a mobile tool, not a vehicle. In Davis v Auto Owners Inc Co,

116 Mich App 402, 406-408; 323 NW2d 418 (1982), another tow truck was deemed “parked”

while it was in the process of winching a stranded car out of a ditch; again, clearly being used as

a tool. The car at the traffic light in Bachman, however, was clearly still being used as a car, and

in contrast, the trailer in MacDonald was immobilized. The only obvious definition that can be

assembled from the above is whether the vehicle is both motionless and either being used as

something unrelated to being a vehicle or being incapable of readily put back into motion.

Plaintiff’s vehicle was indeed motionless here, but it was also still running and clearly not

intended to be left alone or to be unoccupied for very long. In the event the maintenance

exception were to be deemed inapplicable, we would hold that whether the vehicle was “parked”

can only be resolved by posing the question to the trier of fact, because that is the only proper

way to resolve a factual question where no bright-line rule can be easily established and where

human intuition must be relied upon. Thus, even if summary disposition in plaintiff’s favor were

to be found improper, the trial court’s refusal to grant summary disposition in defendant’s favor

must still be affirmed.

Thus, we now turn to our Supreme Court’s order to consider “whether the causal

connection between the plaintiff’s injuries and the maintenance of a motor vehicle as a motor

vehicle is more than incidental, fortuitous, or ‘but for.’” As discussed, Willer is utterly barren of

any worth to this analysis. It makes a specific reference to “on this record,” however, no record

exists that may be readily found. It sets forth essentially no facts, and it is a reversal of an order

of this Court denying leave to appeal, which also set forth no facts. Again, our Supreme Court’s

peremptory orders are only binding to the extent they are comprehensible, and Willer simply is

not. All we know is that on the facts of that case, whatever they were, the plaintiff in Willer

failed to persuade our Supreme Court that there was a more-than-but-for causal connection

between her injuries and the scraping of her windshield.

Defendant additionally cites several cases in which the plaintiffs in those cases allegedly

slipped and fell “in the general vicinity of a vehicle” and were deemed to lack the requisite

causal connection. Such a conclusion is obvious and irrelevant. It would naturally follow that

merely being near to a vehicle will not spontaneously generate a causal connection to that

vehicle. In contrast, plaintiff was actively engaged in performing essential maintenance to the

vehicle pertinent to its use as a motor vehicle. It may have been routine maintenance and not

necessarily of immediate urgency to permit it to move at all, but essential maintenance

nonetheless. Because Musall remains controlling precedent and has already determined that

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such a causal nexus exists on highly similar facts, we would follow that conclusion even if we

did not agree with it.

We respectfully disagree with our dissenting colleague’s estimation of Williams v

Pioneer State Mut Ins Co, 497 Mich 875; 857 NW2d 1 (2014). As the Court held in that matter,

the tree branch in that case was not causally linked to any act or omission of the plaintiff. It was

not one of the branches plaintiff removed from the car, it was not struck by or otherwise caused

to fall by plaintiff or one of the branches plaintiff removed from the car, it was not struck by the

car, and in general plaintiff did not put into motion any chain of events that influenced the branch

falling. In contrast, our dissenting colleague here appears to dismiss the strong likelihood that

the slippery patch on the floor was directly caused by the physical acts of maintenance

performed by plaintiff, and even if it was not, those physical acts of maintenance directly

impaired plaintiff’s ability to detect or avoid it, or to prevent herself from actually falling or

getting hurt even if avoidance of the slippery patch was impossible. It stands to reason that the

tree branch that struck the plaintiff in Williams was outside any chain of causation involving the

plaintiff or her car. Plaintiff’s maintenance of her car here did not simply happen to be

performed in the wrong place at the wrong time, but in fact had a direct causal influence on her

fall and resulting injury.

In summary, we find that the maintenance exception is still “good law,” that it applies to

the facts in this case, that there would necessarily be a genuine question of material fact for the

jury even if the maintenance exception did not apply here, and that there is a sufficient causal

nexus “between the plaintiff’s injuries and the maintenance of a motor vehicle as a motor

vehicle.” We therefore affirm.

/s/ Amy Ronayne Krause

/s/ Jane E. Markey

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