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Rednour v. Hastings Mutual Insurance Co.5/30/2003
r, courts may not assess credibility in considering whether to grant the motion. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). However, in this case, in reaching its holding, the majority construes the facts in defendant's favor.
At the hearing on defendant's motion for summary disposition, plaintiff argued that his injuries occurred while he was pinned between the cars. Defendant argued that plaintiff sustained his injuries before he came into contact with the insured auto. In support of their arguments, both parties relied on statements that plaintiff made in reporting the accident to the police. To determine whether this dispute regarding the mechanism of plaintiff's injuries presents an issue of material fact, we need only apply the majority's own interpretation of the policy language.
The majority asserts that the sole reasonable interpretation of "upon" in the context of this contract is that it means simply "on." Ante at 10 n 2. It then concludes that plaintiff did not suffer his injuries while he was "on" the car.
However, Random House Webster's College Dictionary (2000 ed) indicates that "on" means: "so as to be or remain supported by or suspended from . . . ." A person who is pinned between two automobiles is supported by them. Thus, plaintiff has alleged facts that, if believed by a jury, would support a finding that plaintiff was "on" the insured automobile at the time of the accident.
Given this analysis, I find unconvincing the majority's bald assertion that substituting the word "on" for "upon" necessitates a finding that the policy excludes coverage for plaintiff's injuries.
2. THE CONTINUED VIABILITY OF NICKERSON
The majority also holds that Nickerson was wrongly decided because it departed from the language of the insurance policy at issue there. It appears to me inappropriate for the Court to make that decision given the Citizens Mutual policy language.
That language differed significantly from the Hastings language at issue in this case. Thus, I would reserve judgment on the continuing viability of Nickerson until the Court is presented with an issue regarding the interpretation of the policy language in that case.
CONCLUSION
Plaintiff has presented a genuine question of material fact concerning whether he was an occupant of the insured vehicle at the time he was injured.
Viewing the evidence in the light most favorable to the plaintiff, defendant has not established that it is entitled to judgment in its favor as a matter of law. Regardless of the definition advanced by the majority, the evidence adduced at the hearing on defendant's motion for summary disposition failed in this respect: it did not conclusively establish that plaintiff was not "upon" the vehicle at the time of the accident.
If a jury believed the facts presented by plaintiff, it could conclude that plaintiff was on the car when injured, hence he was an occupant. It follows that summary disposition was improper.
Accordingly, I would remand the case to the circuit court for trial on the merits.
Marilyn Kelly
CAVANAGH, J.
I concur in the conclusion reached by Justice Kelly.
Michael F. Cavanagh
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