# Drake v. Citizens Insurance Co. of America

> Michigan Court of Appeals · May 11, 2006 · 270 Mich. App. 22

URL: https://www.frixlaw.com/law-library/cases/9522180

## Case

- **Full name:** Drake v. Citizens Insurance Company of America
- **Court:** Michigan Court of Appeals
- **Decided:** May 11, 2006
- **Citations:** 270 Mich. App. 22; 715 N.W.2d 387
- **Precedential status:** Published
- **Opinion:** Dissent by Zahra
- **Judges:** Zahra, Murphy, Neff
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9522180

## How later opinions describe it (automated extraction)

- holding that the plaintiff’s injury, sustained while he was helping the delivery truck’s driver unclog the truck’s auger system so that the feed delivered by the truck could be dropped into a silo, was closely related to the vehicle’s transportational purposes

## Opinion text

ZAHRA, EJ.
(dissenting). I respectfully dissent. Contrary to the majority, I find no inconsistency between McKenzie v Auto Club Ins Ass’n, 458 Mich 214 ; 580 NW2d 424 (1998), and the express language of MCL 500.3105 and 500.3106. I conclude plaintiffs injuries did not arise out of the use of a motor vehicle as a motor vehicle. I would reverse and remand for entry of a judgment in favor of defendant.
Sections 3105 and 3106 must be satisfied in order for plaintiff to prevail. Section 3105(1) precludes personal protection insurance unless the “accidental bodily injury aris[es] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . . ” Section 3106 expressly precludes recov *40 ery for accidental bodily injury arising out of the “ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle” unless one of three statutorily defined exceptions exists. That § 3106 defines limited situations in which the Legislature permitted recovery for accidental injury that arose while interacting with a parked vehicle does not eviscerate the threshold question whether the injury arises out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. The majority would, in essence, ignore § 3105 whenever an injury relates to a parked vehicle. Such an interpretation flies in the face of the well-established rules of statutory construction cited by the majority and embraced by McKenzie .
I also disagree with the majority’s conclusion that plaintiffs injury arose out of the use of a motor vehicle as a motor vehicle. The facts of this case cannot be distinguished from Bialochowski v Cross Concrete Pumping Co, 428 Mich 219 ; 407 NW2d 355 (1987), which McKenzie squarely rejected. Bialochowski involved a cement truck with a
[plermanently attached . .. concrete pump and a thirty- to thirty-five-foot boom... , which was used to pump concrete up to the elevated levels. [The] [p]laintiff was injured in the course of his employment when the concrete pump exploded, causing the boom to collapse upon [the] plaintiff, crushing him. At the time of the accident, the truck was parked and stabilized. [Bialochowski, supra at 222-223 .]
The majority opinion concludes there is “a fundamental difference between Bialochowski and the case at bar” solely because the vehicle in Bialochowski was stabilized. This distinction is insignificant, particularly given that McKenzie found the holding in Bialochowski “utterly antithetical to the language of § 3105 ....” *41 McKenzie, supra at 224 . Further, the vehicle here first had to hydraulically extend its boom to the top of a silo, and only then, using three independently powered augers, did it move feed through the boom and into the silo. “Where the Legislature explicitly limited coverage under § 3105 to injuries arising out of a particular use of motor vehicles — use ‘as a motor vehicle’ — a decision finding coverage for injuries arising out of any other use, e.g., to pump cement, is contrary to the language of the statute.” Id. Here, the majority has improperly found coverage for injuries that arose out of use of a vehicle to pump feed into a silo.
I would reverse the judgment entered in favor of plaintiff and remand for entry of judgment in favor of defendant because plaintiffs injury clearly did not arise out of the use of a motor vehicle as a motor vehicle. MCL 500.3105; McKenzie, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9522180. Public record. Not legal advice.