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Elder v. Pioneer State Mutual Insurance Co.6/17/2003
UNPUBLISHED
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Decedent James E. Elder was riding a motorcycle owned by his son southbound in the center lane on US-31. In anticipation of moving into the left lane he looked over his left shoulder. When he looked ahead he saw that traffic had slowed to a stop or a near stop. Decedent laid the motorcycle down in the road in an attempt to avoid striking the vehicle in front of him. The motorcycle did not come into contact with the vehicle, but instead struck the guardrail. Decedent sustained injuries from which he died two days later.
Pioneer, decedent's automobile insurer, and Citizens Insurance Company, the motorcycle owner's insurer, denied plaintiff's claim for benefits. Plaintiff filed suit naming as defendants Pioneer, Citizens, and the Assigned Claims Facility. Plaintiff moved for partial summary disposition pursuant to MCR 2.116(C)(10), arguing that the accident arose out of the operation or use of a motor vehicle as a motor vehicle, and that pursuant to MCL 500.3114(5)(c) Pioneer was first in priority for payment of any personal injury protection (PIP) benefits due. Pioneer moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that no evidence showed that decedent's death arose out of the operation or use of a motor vehicle as a motor vehicle. The Assigned Claims Facility concurred in Pioneer's motion, and sought summary disposition pursuant to MCR 2.116(I).
Initially, the trial court granted plaintiff's motion for partial summary disposition, denied Pioneer's motion, and granted summary disposition in favor of the Assigned Claims Facility. The trial court found that while no evidence created a question of fact as to whether the vehicle immediately in front of decedent was involved in the accident, the concrete truck was involved in the accident because it stalled on the road. The trial court concluded that plaintiff was entitled to recover benefits from Pioneer under MCL 500.3114(5)(c).
Pioneer moved for rehearing, arguing that while the trial court correctly found that the vehicle immediately in front of decedent was not involved in the accident, discovery had revealed that the truck did not stall until after decedent's accident occurred. In an amended opinion the trial court granted the motion for reconsideration, removed all language dealing with the concrete truck from its original decision, and affirmed the remainder of the decision. The trial court denied plaintiff's motion for reconsideration of the amended decision. The trial court thereafter granted summary disposition in favor of Pioneer and the Assigned Claims Facility, thus resolving all pending claims.
We review a trial court's decision on a motion for summary disposition de novo. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
An insurer is obligated to pay PIP benefits for accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL 500.3105(1). A motorcycle is not a motor vehicle. MCL 500.3101(2)(e). However, a motorcyclist may collect PIP benefits if he is injured in an accident involving a motor vehicle. Underhill v Safeco Ins Co, 407 Mich 175, 186; 284 NW2d 463 (1979). In order for an injury to arise out of the operation or use of a motor vehicle as a motor vehicle, the injury must be closely related to the vehicle's function as a means of transportation. McKenzie v Auto Club Ins Ass'n, 458 Mich 214, 225-226; 580 NW2d 424 (1998). The vehicle need
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