Djerdj Djeljaj v. American Alternative Insurance Corporation

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

DJERDJ DJELJAJ, also known as GEORGE MAX UNPUBLISHED

KOLA, May 18, 2023

Plaintiff-Appellant,

v No. 360314

Macomb Circuit Court

AMERICAN ALTERNATIVE INSURANCE LC No. 2021-003757-NF

CORPORATION,

Defendant-Appellee.

Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.

PER CURIAM.

In this action for personal protection insurance (PIP) benefits under the no-fault act, MCL

500.3101 et seq., plaintiff appeals as of right an order granting summary disposition under MCR

2.116(C)(10) in favor of defendant.1 Plaintiff argues that the trial court erred because there was at

least a question of fact regarding the availability of PIP benefits under two parked-vehicle

exceptions, to wit: MCL 500.3106(1)(b) and (c). We agree with plaintiff’s argument that the trial

court erred with respect to MCL 500.3106(1)(b), and decline to address plaintiff’s unpreserved

argument regarding subsection (1)(c). We reverse and remand for further proceedings.

I. BACKGROUND

This case arises from injuries sustained by plaintiff in February 2019. Plaintiff went to a

medical center for treatment of symptoms unrelated to the injuries at issue in this case. The facility

was unequipped to diagnose plaintiff’s complaints and opted to transfer him to a hospital. Plaintiff

testified that two emergency medical technicians (EMTs) came inside with a stretcher, strapped

1

In the same order, the trial court denied summary disposition under MCR 2.116(C)(7). Defendant

initiated a cross-appeal challenging the partial denial of summary disposition, but the cross-appeal

has since been dismissed by stipulation. Djeljaj v American Alternative Ins Co, unpublished order

of the Court of Appeals, entered August 9, 2022 (Docket No. 360314).

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him onto it, and wheeled him outside. The ambulance door was open, and the female EMT

attempted to push him inside, head first. In the process, the stretcher overturned and plaintiff

struck the pavement with his head and shoulder.

A report from the ambulance company described the incident similarly, explaining that one

of the EMTs attempted to lift the stretcher into the vehicle, but struggled to lift it high enough.

The second EMT came to the first EMT’s assistance and attempted to lift the stretcher further from

the side. This maneuver caused the stretcher to tilt and ultimately flip onto its side, with plaintiff

still attached. Plaintiff was purportedly injured in the fall.

Plaintiff sued defendant to recover PIP benefits. In lieu of answering the complaint,

defendant moved for summary disposition. Defendant explained that a related case brought by

one of plaintiff’s medical providers had recently been dismissed because the court determined that

plaintiff’s injuries were not compensable under MCL 500.3106(1). Defendant asked the court to

grant summary disposition under MCR 2.116(C)(7) on the basis of res judicata or under MCR

2.116(C)(10) because of the same absence of material factual dispute that led to summary

disposition in the provider case. Plaintiff opined that res judicata was inapplicable for several

reasons and that he had a viable claim for benefits under MCL 500.3106(1)(b). The trial court

agreed that res judicata did not bar this action, but granted summary disposition under MCR

2.116(C)(10) for the same reasons it announced in the provider action. The trial court granted

summary disposition in the provider case because it concluded that MCL 500.3106(1)(b) did not

apply and because the provider in that case—and, by implication, plaintiff in this case—did not

adequately brief the transportational function and causal relationship requirements for liability

under a parked-vehicle exception.

II. PRESERVATION AND STANDARDS OF REVIEW

Preliminarily, we note that an issue must generally be raised before or decided by the trial

court to preserve appellate review. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964

NW2d 809 (2020). Plaintiff’s claim of error regarding MCL 500.3106(1)(b) was properly

preserved, but his argument regarding MCL 500.3106(1)(c) is being raised for the first time on

appeal. In civil litigation, “Michigan generally follows the ‘raise or waive’ rule of appellate

review,” under which failure to timely raise an issue before the trial court constitutes waiver of

that issue on appeal. Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008). Although we

have discretion to overlook preservation requirements under appropriate circumstances, Smith v

Foerster-Bolser Const, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006), we decline to do so

in this case.

We review de novo a trial court’s summary disposition ruling. El-Khalil v Oakwood

Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion brought under MCR

2.116(C)(10) tests the factual sufficiency of the claim. Id. at 160. The standard of review for such

motions is well settled:

In evaluating a motion for summary disposition brought under this subsection, a

trial court considers affidavits, pleadings, depositions, admissions, and other

evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to

the party opposing the motion. Where the proffered evidence fails to establish a

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genuine issue regarding any material fact, the moving party is entitled to judgment

as a matter of law. [Trueblood Estate v P&G Apartments, LLC, 327 Mich App 275,

284; 933 NW2d 732 (2019), quoting Maiden v Rozwood, 461 Mich 109, 120; 597

NW2d 817 (1999).]

“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to

the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen

Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

This Court also reviews issues involving statutory interpretation de novo. Kemp v Farm

Bureau Gen Ins Co of Mich, 500 Mich 245, 252; 901 NW2d 534 (2017). The primary goal of

statutory interpretation is to give effect to the Legislature’s intent as conveyed by the plain

language of the statute. Id. “When a statute’s language is unambiguous, the Legislature must have

intended the meaning clearly expressed, and the statute must be enforced as written.” Id.

(quotation marks and citation omitted).

III. ANALYSIS

Subject to the provisions of the no-fault act, an insurer that provides PIP coverage “is liable

to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance

or use of a motor vehicle as a motor vehicle . . . .” MCL 500.3105(1). But MCL 500.3106(1)

provides that “[a]ccidental bodily injury does not arise out of the ownership, operation,

maintenance, or use of a parked vehicle as a motor vehicle” (emphasis added), and thus does not

give rise to PIP benefits under MCL 500.3105(1), unless an exception applies. The so-called

parked-vehicle exclusion does not apply if any of the following exceptions occur:

(a) The vehicle was parked in such a way as to cause unreasonable risk of

the bodily injury which occurred.

(b) Except as provided in subsection (2),[2] the injury was a direct result of

physical contact with 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.

(c) Except as provided in subsection (2), the injury was sustained by a

person while occupying, entering into, or alighting from the vehicle. [MCL

500.3106(1)(a) through (c).]

In determining whether PIP benefits are available for injuries related to parked motor

vehicles, courts must first consider whether the claimant’s “conduct fits one of the three exceptions

of subsection 3106(1).” Kemp, 500 Mich at 253 (quotation marks and citation omitted). “Second,

the claimant must show that the injury arose out of the ownership, operation, maintenance, or use

2

MCL 500.3105(2) concerns injuries that qualify for worker’s compensation benefits and is not

applicable in this case.

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of the parked motor vehicle as a motor vehicle[.]” Id. (quotation marks, citation, and emphasis

omitted; alteration in original). Lastly, “the claimant must demonstrate that the injury had a causal

relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for.” Id.

(quotation marks and citation omitted).

The principal point of contention in this appeal is whether the trial court erred by

concluding that MCL 500.3106(1)(b) did not apply to the circumstances at issue. We agree with

plaintiff that the trial court’s analysis of this exception, incorporated from its decision in a related

provider lawsuit, was flawed and inconsistent with the plain statutory language and controlling

caselaw.

The trial court’s decision was premised on the Supreme Court’s discussion of this statutory

exception in Kemp, 500 Mich at 254-256. In that case, the plaintiff, upon arriving home from work

and exiting his vehicle, reached into the backseat to retrieve several personal items. Id. at 249. He

sustained an injury as he removed the items from the vehicle. Id. The Court opined that there was

a question of fact as to whether the plaintiff was injured as he lowered the items from his vehicle

during the unloading process. Id. at 254. The Court began by noting that the items the plaintiff

was retrieving—a briefcase, overnight bag, thermos, and lunch box—constituted property because

they were “things ‘owned or possessed’ by [the] plaintiff.” Id. Additionally, the plaintiff’s

testimony regarding the sudden onset of his injury upon twisting to set the items down was

sufficient to create a factual question regarding whether the injury was a direct result, or in other

words caused by, his contact with the property being loaded or unloaded. Id. at 255.

The trial court interpreted this precedent as requiring plaintiff to prove that (1) he owned

or possessed the property, (2) he was in physical contact with the property and either lifting it from

or onto the vehicle, and (3) he was injured due to physical contact with that property. Concerning

the first “requirement,” the trial court misconstrued Kemp. The critical issues before the Kemp

Court were whether the plaintiff’s injury was closely related to the transportational function of his

motor vehicle and whether the injury had the requisite causal relationship to the parked motor

vehicle. Id. at 251. There is no indication that whether the plaintiff’s personal items constituted

property was ever in dispute. Rather, it appears that the Supreme Court commented on that matter

in the interest of complete analysis and without any intention to establish a binding rule of law

requiring that the property at issue be owned or possessed by the plaintiff. See Griswold Props,

LLC v Lexington Ins Co, 276 Mich App 551, 557-558; 741 NW2d 549 (2007) (“It is a well-settled

rule that statements concerning a principle of law not essential to determination of the case are

obiter dictum and lack the force of an adjudication.”) (quotation marks and citation omitted).

Indeed, such a conclusion would be at odds with the plain language of MCL 500.3106(1)(b), which

contains no language mandating an interest in the property beyond the requirement of “physical

contact” with “property being lifted or lowered from the vehicle in the loading or unloading

process.”

It is also notable that the “owned or possessed” language quoted by the Kemp Court came

from a dictionary definition of “property” that does not itself restrict the thing owned or possessed

to a particular person. Kemp, 500 Mich at 254 & n 27, quoting Merriam-Webster’s Collegiate

Dictionary (11th ed). In fact, under the same definitional sense of property, that very dictionary

also defines property as “something to which a person or business has a legal title.” Merriam-

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Webster’s Collegiate Dictionary (11th ed). This additional definition makes clear that the owner

or possessor of the item is not dispositive of whether it constitutes property.

The trial court also found MCL 500.3106(1)(b) inapplicable because plaintiff was not

actively engaged in lifting the property—that is, the stretcher—into the ambulance. This reasoning

is again unavailing because neither the plain statutory language nor Kemp imposes such a

requirement. The exception in subsection (1)(b) states only that the injury must be “a direct result

of physical contact with . . . property being lifted onto or lowered from the vehicle in the loading

or unloading process.” MCL 500.3106(1)(b). If the Legislature intended to limit the availability

of PIP benefits to parties who were injured in the act of lifting or lowering property from the

vehicle, it could surely have chosen more precise language to reflect that intent. The Legislature

did just that in subsection (2)(a) by providing that certain work-related injuries are excluded from

PIP benefits if the employee sustains an injury “while doing” certain tasks, including “[l]oading,

unloading, or doing mechanical work on a vehicle . . . .” MCL 500.3106(2)(a). Rather than using

similar language in MCL 500.3106(1)(b), the Legislature mandated only that the injury must be a

direct result of physical contact with property being lifted onto or lowered from the vehicle.

“When the Legislature uses different words, the words are generally intended to connote different

meanings.” United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On

Rehearing), 484 Mich 1, 14; 795 NW2d 101 (2009). As explained in Kemp, this condition only

requires proof the “injury was caused by contact with the property being loaded or unloaded.”

Kemp, 500 Mich at 255.

Defendant urges this Court to reach a contrary result because caselaw construing and

comparing MCL 500.3106(1)(b) and MCL 500.3106(2)(a) has found that the latter provision

encompasses “activities preparatory to the actual loading or unloading,” in part because the

“loading” and “unloading” language in subsection (2)(a) does not contain the same limitation

regarding physical contact with property being lifted onto or lowered from the vehicle in the

loading or unloading process. Bell v FJ Boutell Driveaway Co, 141 Mich App 802, 807-809; 369

NW2d 231 (1985).3 Defendant’s reliance on this distinction is misplaced because the evidence,

viewed in the light most favorable to plaintiff, indicates that the EMTs were not merely preparing

to load the stretcher into the ambulance. Rather, the EMTs were physically lifting the stretcher to

push it into the ambulance when it overturned. In other words, the stretcher was being lifted onto

the ambulance in the loading process when plaintiff was injured.

The trial court’s final reason for granting summary disposition with respect to this issue

was that plaintiff’s injuries were caused not by his contact with the stretcher, but by his contact

with the ground when the stretcher overturned. This Court has already rejected the same flawed

reasoning. In Adanalic v Harco Nat’l Ins Co, 309 Mich App 173, 177-178; 870 NW2d 731 (2015),

the plaintiff was injured in the process of transferring a loaded pallet from a disabled vehicle to his

own semi-trailer. The plaintiff used straps attached to the pallet to pull it across a ramp from one

vehicle to the other. Id. at 178. When the pallet fell from the ramp while the plaintiff remained

3

Opinions of this Court issued before November 1, 1990, are not strictly binding under MCR

7.215(J)(1), but are generally afforded some deference unless contradicted by more recent caselaw.

Woodring v Phoenix Ins Co, 325 Mich App 108, 114; 923 NW2d 607 (2018).

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attached to it by the straps, he too fell. Id. The trial court rejected the defendant’s contention that

the plaintiff was not entitled to PIP benefits because his injuries arose from contact with the

ground, rather than the pallet. Id. at 182. Concluding that the trial court’s analysis was consistent

with the statutory language, this Court affirmed. Id. It reasoned that the defendant’s position

attempted to “fundamentally rewrite the statute to state that a plaintiff’s injury must occur as a

result of being struck by the property being loaded or unloaded,” when the plain language required

only that “there be ‘physical contact’ with the property being loaded and that the physical contact

‘directly result’ in injury.” Id. The Court agreed that the plaintiff’s injury was a direct result of

contact with the pallet, explaining, “While hitting the ground when falling occurs at a different

instant than the moment the fall begins, it begs credulity (and the law of gravity) to suggest that a

fall ending in impact with the ground is not a direct process.” Id. at 183.

Here, plaintiff’s contact with the ground was inextricably tied to his physical contact with

the stretcher. But for having been secured to the stretcher, plaintiff would never have fallen to the

ground and sustained injuries upon impact. His injury was caused by a “single, unbroken, and

immediate course of events,” id. at 182-183, that occurred because plaintiff was in contact with,

and indeed strapped to, the stretcher as it was being loaded onto the ambulance. Because the

evidence suggests that plaintiff’s injury was a direct result of physical contact with the stretcher as

it was being lifted onto the ambulance in the loading process, the trial court erred by concluding

that MCL 500.3106(1)(b) was inapplicable as a matter of law.

Having determined that the trial court erred by ruling that MCL 500.3106(1)(b) was

inapplicable, the next question is whether “the injury arose out of the ownership, operation,

maintenance, or use of the parked motor vehicle as a motor vehicle[.]” Kemp, 500 Mich at 253

(quotation marks and citation omitted; alteration in original). Concerning this “transportational

function requirement,” the Supreme Court explained:

[T]he phrase “use of a motor vehicle ‘as a motor vehicle’ ” would appear to

invite contrasts with situations in which a motor vehicle is not used “as a motor

vehicle.” This is simply to say that the modifier “as a motor vehicle” assumes the

existence of other possible uses and requires distinguishing use “as a motor vehicle”

from any other uses. While it is easily understood from all our experiences that

most often a vehicle is used “as a motor vehicle,” i.e., to get from one place to

another, it is also clear from the phrase used that the Legislature wanted to except

those other occasions, rare as they may be, when a motor vehicle is used for other

purposes, e.g., as a housing facility of sorts, as an advertising display (such as at a

car dealership), as a foundation for construction equipment, as a mobile public

library, or perhaps even when a car is on display in a museum. . . . It seems then

that when we are applying the statute, the phrase “as a motor vehicle” invites us to

determine if the vehicle is being used for transportational purposes. [Id. at 257-

258, quoting McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 218-219; 580 NW2d

424 (1998) (alteration in original).]

The critical inquiry is thus “whether the injury is closely related to the transportational function of

motor vehicles.” Kemp, 500 Mich at 258 (quotation marks and citation omitted).

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The trial court concluded that plaintiff’s claim failed on this element, not for lack of a

factual dispute, but because plaintiff did not adequately brief it. See Houghton v Keller, 256 Mich

App 336, 339; 662 NW2d 854 (2003) (“An appellant may not merely announce his position and

leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues

cursory treatment with little or no citation of supporting authority.”) (citations omitted). We

disagree. A party moving for summary disposition under MCR 2.116(C)(10) “must first

specifically identify the issues as to which [it] believes there is no genuine issue as to any material

fact, and has the initial burden of supporting its position with affidavits, depositions, admissions,

or other admissible documentary evidence.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich

App 466, 475; 776 NW2d 398 (2009) (quotation marks and citations omitted; alteration in

original). The nonmoving party is only tasked with establishing a genuine issue of material fact

after the moving party has met its initial burden. Id.

Defendant’s dispositive motion noted that, in addition to meeting an exception outlined in

MCL 500.3106(1), plaintiff had to establish that the injury arose from the ownership, operation,

maintenance, or use of a motor vehicle as a motor vehicle (i.e., the transportational function

element) and that the injury had a causal relationship to the parked motor vehicle that was more

than incidental, fortuitous, or but for (i.e., the causal relationship element). Defendant argued that

plaintiff’s injuries were merely incidental to the ambulance because he was receiving medical

services at the time and was not in contact with the ambulance. Defendant concluded, “The fact

Plaintiff fell near an ambulance is simply incidental and is insufficient to establish he was using a

motor vehicle as a motor vehicle.” Defendant’s single-paragraph argument incorporated language

implicating both the transportational function and causal relationship elements, leaving it unclear

whether defendant believed there was no genuine issue of material fact as to just one or both of

these elements, and thus unclear which element or elements plaintiff had a duty to respond to.4

Assuming, without deciding, that plaintiff’s duty to respond was triggered by defendant’s

vague position, the trial court’s adoption of its decision in the provider action failed to account for

the fact that plaintiff’s response in this action was more detailed with respect to the transportational

function and causal relationship elements. Concerning the transportational function element,

plaintiff cited caselaw regarding the primary purpose of vehicles being for conveyance of people

or objects and maintained that the conveyance of the stretcher to which he was attached was closely

related to this transportational function. Because plaintiff presented a sound argument regarding

this element, the trial court erred by treating it as abandoned.

Moreover, it is clear upon de novo review that the evidence proffered in support of and in

opposition to defendant’s motion weighed against granting the motion with respect to the

transportational function element. When a person is injured while entering a parked vehicle with

the intention of traveling, the vehicle is being used as a motor vehicle as a matter of law. Putkamer

v Transamerica Ins Corp of America, 454 Mich 626, 636; 563 NW2d 683 (1997). Plaintiff was

injured while the EMTs were in the process of loading the stretcher to which he was strapped into

4

That said, we acknowledge that the transportational function and causal relationship inquiries are

not necessarily discrete inquiries and “bear an obvious logical relationship to one another.” Kemp,

500 Mich at 264 n 52.

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the ambulance so as to transport him from the medical center to a hospital that was better equipped

to diagnose his ailment. The ability to “get from one place to another” is the essence of the

transportational function of a motor vehicle. Kemp, 500 Mich at 257; McKenzie, 458 Mich at 218-

219. Because plaintiff was being loaded into the ambulance for purposes of transportation, he was

clearly using the vehicle for its transportational function. See Putkamer, 454 Mich at 636.

The final step for determining whether an injury involving a parked vehicle is compensable

under the no-fault act is to consider whether “the injury had a causal relationship to the parked

motor vehicle that is more than incidental, fortuitous, or but for.” Kemp, 500 Mich at 253

(quotation marks and citation omitted). In other words, “[t]he injury must be foreseeably

identifiable with the normal use, maintenance and ownership of the vehicle.” Id. at 263 (quotation

marks and citation omitted).

The trial court again found this element lacking because of plaintiff’s inadequate briefing

of the issue. But as he did with transportational function element, plaintiff likewise provided a

more detailed argument regarding the requisite causal relationship, albeit one that focused almost

entirely on factual causation with little mention of proximate causation or foreseeability beyond

citation to Kemp. See Patrick v Turkelson, 322 Mich App 595, 616; 913 NW2d 369 (2018)

(describing distinction between factual and legal causation). The trial court erred by treating this

issue as abandoned without giving consideration to plaintiff’s expanded position regarding

causation.

Viewing the evidence in the light most favorable to plaintiff, a factfinder could conclude

that plaintiff was injured while being loaded into the ambulance for transportation to a hospital.

The primary purpose of an ambulance is to provide transportation to people in need of medical

attention. It is axiomatic that in order to provide such transportation, the person in need of medical

attention will need to enter the ambulance, often by way of a stretcher. It would be unreasonable

to conclude that mishaps in that process are not a foreseeable result of the normal use of an

ambulance.

Defendant argues that the fortuitous proximity of the ambulance at the time of plaintiff’s

fall should not result in liability for PIP benefits when the “inherent nature of the ambulance to

transport persons for medical care was not the cause of [plaintiff’s] injuries.” We find this position

unpersuasive. Defendant’s theory might hold more weight if the stretcher had fallen because of a

mechanical failure or some defect in the pavement, but the undisputed evidence indicates that the

stretcher tipped because of the manner in which the EMTs attempted to load it into the ambulance.

These circumstances clearly implicate the primary purpose of an ambulance acknowledged by

defendant, i.e., the transportation of persons for medical care. Plaintiff’s injury fell squarely within

the exception set forth in MCL 500.3106(1)(b) and established, at minimum, a question of fact as

to whether his injury was causally related to the parked ambulance.5

5

It is unnecessary to address defendant’s argument regarding the admissibility of plaintiff’s

affidavit because the foregoing analysis is well supported by plaintiff’s deposition testimony and

the ambulance report regarding the incident.

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IV. CONCLUSION

The trial court erred by granting defendant’s motion for summary disposition. MCL

500.3106(1)(b) provides an exception to the parked-vehicle exclusion if “the injury was a direct

result of physical contact with . . . property being lifted onto or lowered from the vehicle in the

loading or unloading process.” Plaintiff sustained injuries when the stretcher he was strapped to

fell over as it was being loaded into an ambulance. A jury could conclude that this satisfied the

exception set forth in MCL 500.3106(1)(b). The evidence further demonstrated that his injuries

arose from use of the ambulance as a motor vehicle and that there was a sufficient causal

relationship between his injuries and such use of the ambulance.

Reversed and remanded for further proceedings consistent with this opinion. We do not

retain jurisdiction.

/s/ Sima G. Patel

/s/ Mark J. Cavanagh

/s/ James Robert Redford

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