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Gunsell v. Ryan6/15/1999
FOR PUBLICATION 9:00 a.m.
Defendant Frank Ryan appeals as of right from a judgment entered pursuant to the jury's verdict in favor of plaintiffs. Because we find that plaintiff should have brought this suit as a third-party claim under the no-fault act, MCL 500.3135; MSA 24.13135, we reverse.
I.
Plaintiff Edward Gunsell injured his back while working as a mail dispatcher for the United States Postal Service. Defendant is an independent contractor hired by the postal service to deliver mail. Plaintiff injured his back when he lifted the rear door of defendant's small semi-truck, which was not working properly. Plaintiff recovered his lost wages and medical expenses under the Federal Employees Compensation Act, 5 USC 8101 et seq. He also filed a first-party claim for personal injury protection benefits with his automobile insurance carrier. His carrier apparently denied the claim under the parked vehicle provision of the no-fault act, MCL 500.3106(2)(a); MSA 24.13106(2)(a).
Plaintiff then brought this lawsuit against defendants Frank Ryan, the owner of the delivery company, and Wayne Fenlon, the truck's driver, claiming that their failure to properly maintain the semi-truck door caused his injuries. Initially, plaintiff appeared to bring this suit as a third-party claim under the no-fault act. MCL 500.3135(1); MSA 24.13135(1). However, after plaintiff filed suit, federal authorities filed a lien to recover the cost of plaintiff's federal benefits from any tort recovery. See 5 USC ยง 8132. Plaintiff then moved to change the case designation from "NI," which signifies a personal injury claim arising out of the use of a motor vehicle, to "NO," which signifies all other personal injury claims. MCR 8.117(3)(a),(h). He also moved to dismiss those portions of his complaint concerning the no-fault act, so that he could proceed under a general negligence principle.
The trial court granted plaintiff's motion. Its ruling eased plaintiff's burden at trial, because plaintiff no longer had to prove a serious impairment of body function, and allowed him to pursue economic damages he could not have recovered under the no-fault act. MCL 500.3135(1); MSA 24.13135(1). Following a trial, the jury awarded plaintiff economic damages for lost wages and medical expenses (the amount of the federal lien) and non-economic damages. The jury found defendant Fenlon not negligent.
On appeal defendant Ryan argues that the trial court erred when it allowed plaintiff to bypass the strictures of the no-fault act, because defendant's liability was premised on its ownership, operation, maintenance, or use of a motor vehicle. Whether the trial court erred in granting plaintiff's motion to amend his complaint to bring this action as a straight negligence suit is a question of law; as such, we review it de novo. Fredericks v Highland Twp, 228 Mich App 575, 583; 579 NW2d 441 (1998). We agree with defendant and hold that this case should have been decided under the no-fault statute with its attendant limitations on third-party liability. Consequently, the trial court erred in permitting plaintiff to bring this suit outside of the no-fault act.
Under the no-fault act, a person's personal insurer stands primarily liable for all economic damages stemming from injuries arising out of the ownership, operation, maintenance, or use of a motor vehicle. Lee v Detroit Auto Inter-Insurance Exchange, 412 Mich 505, 515; 315 NW2d 413 (1982). The party whose ownership, operation, maintenance or use of a motor vehicle causes injury is liable to the injured party for non-economic damages only if the injured party sustained a serious impairment of body function, permanent serious disfi
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