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Auto Club Insurance Association v. State Automobile Mutual Insurance Co.9/2/2003
FOR PUBLICATION
Plaintiff Auto Club Insurance Association (ACIA) appeals by leave granted the circuit court's order granting summary disposition in favor of defendant State Automobile Mutual Insurance Company (SAMIC) in this declaratory no-fault insurance case. ACIA argues it presented sufficient evidence that the vehicle insured by SAMIC was involved in the collision with the injured claimant's motorcycle to withstand summary disposition on the question whether SAMIC is obligated to pay a pro rata share of the motorcyclist's no-fault personal injury protection (PIP) benefits. We agree, and reverse and remand for further proceedings.
I.
This case arises out of a motorcycle accident that occurred on northbound M-37, at a construction zone. A line of approximately five to six vehicles was stopped where a flagperson was holding a stop sign. A vehicle driven by Donald Karel and insured by SAMIC pulled up and stopped behind the northbound line of cars; and a pickup truck, driven by Debra Embury and insured by ACIA, pulled up and stopped behind Karel. A northbound motorcycle, driven by Robert Bateman and going at a fast rate of speed, was unable to stop behind the line of cars and collided with Embury's pickup truck. The motorcycle slid down the driver's side of Embury's pickup truck and eventually slid into the southbound lane of traffic. It is disputed whether Bateman also hit Karel's vehicle before sliding into the oncoming lane of traffic. Bateman sustained severe injuries.
Plaintiff ACIA paid PIP benefits to Bateman for the injuries sustained in the accident. ACIA then commenced this action seeking declaratory relief and recoupment from SAMIC for PIP benefits paid to Bateman on the basis that Bateman also struck Karel's car. SAMIC moved for summary disposition, arguing that Karel's vehicle was not struck by Bateman. SAMIC also argued that even if Bateman had struck Karel's vehicle, under Turner v Auto Club, 448 Mich 22; 528 NW2d 681 (1995), Karel's vehicle would still not have been involved in the accident to the extent that defendant would be obligated to pay no-fault benefits. ACIA responded to the motion with evidence that Bateman struck Karel's vehicle, and with argument that if he did, Karel's vehicle was involved in the accident. The circuit court granted SAMIC's motion.
II.
On appeal, a circuit court's grant of summary disposition will be reviewed de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. Summary disposition is appropriate when, except for the amount of damages, there is no genuine issue as to a material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). When deciding a motion under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the light most favorable to the nonmoving party. Ritchie-Gamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999).
MCL 500.3105(1) provides:
Under personal protection insurance an insurer 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, subject to the provisions of this chapter.
MCL 500.3114(5) and MCL 500.3114(6) provide:
(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insur
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