Cobb v. Liberty Mutual Insurance
Cobb v. Liberty Mutual Insurance
Opinion of the Court
This case is part of the continuing
Plaintiff in this case was an intercity truck driver for United Parcel Service who was injured on May 7, 1983, when he had made a run from Ohio to the ups center in Livonia. Plaintiff’s statement and deposition indicated that he arrived at the center on a Saturday when no unloading would take place. Plaintiff backed his truck up to a security door, flush with the door to prevent anyone from gaining entry to the trailer over the weekend. He indicated that he would not be unloading the trailer, but that someone from the Livonia center would do the unloading on Monday. After plaintiff had backed up the truck, he exited from the tractor, leaving the motor running and the door open. Plaintiff then pulled a lever that dropped the legs that would support the trailer when the tractor was pulled away. He released the trailer from the tractor, removed the air and electrical connections between the trailer and tractor, then attempted to dismount from the tractor by stepping on one of the fuel tanks, but slipped and fell, injuring his back. Plaintiff also claimed in his counterstatement of facts on appeal that it was his job to haul trailers from one city to another. Every day he would attach and decouple a trailer to or from the tractor, but plaintiff did not unload or load goods inside the trailer. Trailers that he dropped off would frequently be attached to another tractor and hauled to another city without being unloaded.
Defendant was voluntarily paying plaintiff compensation benefits due to the injury. Plaintiff com
The statutory provision in effect at the time the incident occurred read as follows:
Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. [MCL 500.3106(2); MSA 24.13106(2).][1 ]
More recently, in the MacDonald case, decided in 1986, this Court held that § 3106(2) barred recovery of no-fault benefits when a plaintiff who was employed by a trucking company as a mechanic was injured during the process of placing a trailer axle in a different location on the trailer box. In dictum, the MacDonald Court dealt with the question of the loading or unloading language of § 3106(2) because plaintiff’s deposition testimony indicated that he was in the process of moving the trailer axle so that the trailer could more easily be backed into the loading dock to either load or unload. Judge T. M. Burns, who had been on the Marshall panel, dissented in the MacDonald case, stating that "plaintiff’s action in this case is more properly considered as a part of the delivery process than as a part of the unloading process.” 155 Mich App 661. We agree with Judge Burns’ dissent and affirm the trial court in this action._
We find that the instant case differs from both cases cited by defendant. In both of those cases a claimant in fact was involved in the process of loading or unloading, specifically dealing with the cargo or freight involved, while in the instant case plaintiff was not intending to deal in any way with the cargo or freight.
Defendant argues that the subjective intention of a particular claimant can create very difficult problems relative to evaluating each case; while we agree with that particular concern, it is necessary that the legislative intent be an important part of the consideration. In Bell, supra, this Court examined the legislative history of this subsection in depth, utilizing the House Legislative Analysis Section’s report on the legislation to discover the intended purpose of the amendment. The primary problem stemmed from double recovery permitted by the prior § 3106 where dock workers, warehouse workers and mechanics were able to collect both workers’ compensation benefits and no-fault benefits though they never operated a motor vehicle. We believe that the legislatively expressed
Defendant, while not raising the issue in the trial court, on appeal raises the question of the claimant’s doing "mechanical work.” The issue was not argued at the motion hearing but was included in plaintiff’s written motion. This Court has determined that, like the words "loading or unloading,” the phrase "doing mechanical work” must be liberally interpreted. Dowling v Auto Club Casualty Ins Co, 147 Mich App 482; 383 NW2d 233 (1985); Marshall, supra. In Marshall, this Court stated:
While a broad definition of that term may be appropriate, we do not feel that it should include activity which is not designed to maintain or repair the truck and is routinely performed in the truck’s operation. . . . We feel that "mechanical work” means that work normally done by a mechanic which is for the purpose of maintaining or repairing the vehicle. [Marshall, supra, p 757.]
Defense counsel also, in oral argument, referred to Yates v Hawkeye-Security Ins Co, 157 Mich App 711; 403 NW2d 208 (1987), arguing that this Court has adopted a broad definition of maintenance of a motor vehicle. Yates is easily distinguishable from the instant case. In Yates it is noted that the trial judge granted summary disposition based upon a finding that plaintiff’s injuries did not arise out of the maintenance of a motor vehicle as a motor vehicle. Under MCL 500.3105(1); MSA 24.13105(1), a claimant is entitled to personal protection benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” This Court disagreed with the trial court and held that be
Plaintiff in this case was not "engaged in repairing a defect, performing preventative maintenance or making an adjustment to alter operating characteristics . . . .” MacDonald, supra, p 656. We agree with the trial judge that the plaintiff was not doing mechanical work when injured and we are satisfied that the finding in Marshall controls in this case.
Affirmed.
In oral argument plaintiff’s counsel noted that the Legislature has amended MCL 500.3106(2); MSA 24.13106(2) by 1986 PA 318, effective June 1, 1987, which now provides:
(2) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the workers’ disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, or under a similar law of another state or under a similar federal law, are available to an employee who sustains the injury in the course of his or her employment while doing either of the following:
(a) Loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. As used in this subdivision, "another vehicle” does not include a motor vehicle being loaded on, unloaded from, or secured to, as cargo or freight, a motor vehicle.
*70 (b) Entering into or alighting from the vehicle unless the injury was sustained while entering into or alighting from the vehicle immediately after the vehicle became disabled. This subdivision shall not apply if the injury arose from the use or operation of another vehicle. As used in this subdivision, "another vehicle” does not include a motor vehicle being loaded on, unloaded from or secured to, as cargo or freight, a motor vehicle.
Concurring Opinion
(concurring). I concur with the result in this case and also with the reasoning of the majority opinion with one exception. I do not agree, as the majority indicates, that the Legislature’s expressed intent is necessarily entirely different when it relates to the actual operator of a motor vehicle. In this case, however, plaintiff had no involvement whatsoever with the freight that he was hauling and, therefore, even under the broadest interpretation of the statute, was entitled to no-fault benefits.
Reference
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