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### STATE OF MICHIGAN

COURT OF APPEALS

DAVID L. KULL,

Plaintiff-Appellant, UNPUBLISHED January 31, 2017

v No. 329748 Livingston Circuit Court UNITED SERVICES AUTOMOBILE ASSOCIATION, LC No. 15-028492-NF

Defendant-Appellee.

Before: M. J. K ELLY , P.J., and S TEPHENS and O’B RIEN , JJ.

P ER C URIAM

. Plaintiff David Kull appeals as of right an order granting sum mary disposition under MCR 2.116(C)(10) in favor of defe ndant Unites Services Automobi le Association (USAA). The trial court determined that Kull was not entitled to personal p rotection insurance (PIP) benefits under Michigan’s no-fault act, MCL 500.3101 et seq ., because his conduct did not fit any of the parked vehicle exceptions in MCL 500.3106(1) and because the mo tor vehicle at issue, a boat trailer, did not cause his injur y. We reverse and remand for e ntry of an order granting summary disposition in f avor of Kull.

I. BASIC FACTS

On May 23, 2014, Kull’s ring finger was seriously injured whil e he was getting off a boat on a boat trailer. According to K ull’s deposition testimony, h e had towed the boat and boat trailer to a lake in order t o launch it. When he arrived, he p arked his vehicle and began preparing to launch the boat. As part of that process, he was on or in t he boat, retrieved a plug for the boat, and then slid down the side of the boat with the immediate inte nt of retrieving a wrench from inside his vehicle. As he was sliding off the boat, his weddin g ring caught on a snap on the boat and was “ripped off.” 1 After USAA denied his claim for no-fault benefits, Kull filed the instant lawsuit. The parties filed competing motions for summary dispo sition, and, as indicated above, the circuit court gran ted USAA’s motion.

1 Kull explained that his finge r was “degloved” and had to be am putated.-2- II. PARKED VEHICLE EXCEPTION

A. STANDARD OF REVIEW

Kull argues that the trial court erred in denying his motion f or summary disposition and granting USAA’s motion for summary disposition. We review de n ovo a trial court’s decision to grant or deny summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc , 285 Mich App 362, 369; 775 NW2d 618 (2009). In doing so, we view the record in the light most favorable to the nonmoving party. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008). Further, we review de novo questions of law , including the application and interpretation of statutes. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 116; 839 NW2d 223 (2013).

B. ANALYSIS

Under the no-fault act, Kull’s trailer is defined as a motor v ehicle. See MCL 500.3101(1)(h) (“ ‘Motor vehicle’ means a vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels. . . .”). MCL 500.3105(1) provides that “an insu rer is liable to pay benefits for accidental bodily injury arising out of the ownership, operatio n, maintenance or use of a motor vehicle as a motor vehicle . . . .” With regard to a parked mo tor vehicle, MCL 500.3106(1) provides that “[a]ccidental bod ily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle,” ex cept in the following three situations:

(a) The vehicle was parked in such a way as to cause unreasona ble risk of the bodily injury which occurred.

(b) . . . [T]he injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was bei ng operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process.

(c) . . . [T]he injury was sustained by a person while occupyi ng, entering into, or alighting from the vehicle.

In this case, the parties agree that the trailer was parked whe n Kull was injured. To be covered for an injury involving a parke d vehicle, a claimant must estab lish the following:

(1) his conduct fits one of the three exceptions of subsection 3106(1); (2) the injury arose out of the ownership, operation, maintenance, or u se of the parked motor vehicle as a motor vehicle, and (3) the injury had a caus al relationship to the parked motor vehicle that is more than incidental, fortuito us, or but for. [ Putkamer v Transamerica Ins Corp of America , 454 Mich 626, 635-636; 563 NW2d 683 (1997).]-3- Kull argues that his conduct f its the exception in 3106(1)(c) because he was alighting from the vehicle when his injury occurred. In Frazier v Allstate Ins Co , 490 Mich 381, 385-386; 808 NW2d 450 (2011), our Supreme Cour t addressed what it means to alight from a vehicle:

With respect to MCL 500.3106(1)(c), “alight” means “to dismoun t from a horse, descend from a vehicle, et c.” or “to settle or stay afte r descending; come to rest.” Random House Webster’s College Dictionary (1997). See also New Shorter Oxford English Dictionary (defining “alight” as “ to descend and settle; come to earth from the air”). Moreover, the injury must be sus tained “while” alighting indicates that “aligh ting” does not occur in a single moment but occurs as the result of a process. The process begins when a person i nitiates the descent from a vehicle and is completed when an individual has effectiv ely “descend[ed] from a vehicle” and has “come to rest”—when one has successfull y transferred full control of one’s movement from reliance upon the vehicle t o one’s body. This is typically accomplished when “both feet are planted firm ly on the ground.” Krueger v Lumbermen’s Mut Cas Co , 112 Mich App 511, 515; 316 NW2d 474 (1982). [Alterations in original; footnotes omitted.]

Here, at the time Kull was injured, he was in mid-slide and his feet were not yet planted firmly on the ground. Thus, he was clearly alighting at the time he w as injured. Further, although USAA argues that Kull was alighting from the boat, not the trai ler, we do not find that fact dispositive. Kull’s testimony shows that his intent was to ali ght from the trailer, retrieve a wrench from another vehicle, and walk around to the rear of the boat to continue preparing the boat for launch. Thus, when he alighted from the boat he was a lso alighting from the trailer. 2 The trial court erred in f inding that MCL 500.3106(1)(c) did no t apply.

The next question is whether Kull’s injury arose out of the ow nership, operation maintenance, or use of the parked motor vehicle as a motor vehi cle. The “nexus between the injury and the use of the vehicle as a motor vehicle” must be “ sufficiently close” to justify recovery of benefits. Putkamer , 454 Mich at 635 (citation omitted). In other words, “[w]heth er an injury arises out of the use of a motor vehicle ‘as a motor vehicle’ ” for purposes of MCL 500.3106 “turns on whether the injury is closely related to the transportational function of automobiles.” McKenzie v Auto Club Ins Ass’n , 458 Mich 214, 215; 580 NW2d 424 (1998). In analyzing whether a motor vehicle was being used “as a motor ve hicle,” the McKenzie Court noted that “the Motor Vehicle Code states in pertinent part, “ ‘Vehicle’ means every device in, upon, or by which any person or property is or may be transport ed or drawn upon a highway. . . .’ ” Id . at 219, quoting MCL 257.79. Further, the Court stated that t he dictionary definition of “vehicle” is “any device or cont rivance for carrying or conveyi ng persons or objects, esp. over land or in space. . . .” Id ., quoting Webster’s New World Dictionary (3rd College Edition).

2 It would be a different situation if Kull intended to slide fr om the boat to the trailer and then stay on the trailer. In that situation, alighting from the boa t would not be the equivalent of alighting from the trailer because the trailer, not the ground, would be Kull’s intended end destination.-4- The Court gave two examples of when a plaintiff’s injury was c losely related to a vehicle’s transportational f unction. First, and most obviously , the Court held that “moving motor vehicles are quite obviously engaged in a transportational func tion.” Id . at 221. The Court added, however, a motor vehicle does not have to be in motion i n order for an injury to arise from its transportational function. Id . at 219 n 6. 3 Second, with regard to parked vehicles, the Court reasoned that a person entering a vehicle in order to tra vel in it was an action that was closely related to the motor veh icle’s transportational functio n. Id . at 221, citing Putkamer , 454 Mich at 636-637.

The Court also gave several examples of when an injury was not closely related to a vehicle’s transportational func tion. First, the Court explaine d that a vehicle was not being used “as a motor vehicle” if it was being used as housing, as an adv ertising display, as a mobile public library, or as a museum display. Id . at 218-219. Additionally, the Court noted that injuries arising from assaults on people in motor vehicles were not inju ries closely related to the transportational function of a motor vehicle. Id . at 222, citing Thornton , 425 Mich 643, 660-661; 391 NW2d 320 (1986) and Bourne v Garmers Ins Exch , 449 Mich 193, 203; 534 NW2d 491 (1995). Likewise, an injury caused by a cement slab falling fr om a crane attached to a parked tow truck was also not closely related to the transportational function of a motor vehicle because the truck in that example was being used as a foundation for co nstruction equipment. Id . at 221, citing Winter v Auto Club of Mich , 433 Mich 446; 446 NW2d 132 (1989). The Court also overruled the holding in Bialochowski v Cross Concrete Pumping Co , 428 Mich 219; 407 NW2d 355 (1987). McKenzie , 458 Mich at 223-224. In Bialochowski , the plaintiff was injured when a concrete pump permanently mounted to a motor vehicle exploded w hile it was being used to pump cement. Bialochowski , 428 Mich at 222-223, 228. The Bialochowski Court held that because the cement truck was being used for one of its intended purposes, it was being used “as a motor vehicle” as required by MCL 500.3105(1). Id . at 228-229. In overruling Bialochowski

, the McKenzie Court held that a dual-purpose vehicle cannot simply be used f or an intended purpose it must be used for its transportational purpose. McKenzie , 428 Mich at 223-226. Thus, the McKenzie Court held that an injury occu rring while unloading a cement t ruck was not closely related to the vehicle’s tr ansportational function.

In this case, Kull testified that he had towed the boat traile r to the lake so that he could launch it. While the trailer was moving, it was plainly being used for its transportational purpose, i.e., conveying objects over land. Further, the trans portational function of a vehicle does not have a set beginning and a set end because, as recogni zed by the Supreme Court in McKenzie , the motor vehicle does not have to be in motion in order for an injury to arise from its transportational function. Id . at 219 n 6. Kull testified that after arriving at the lake, he started preparing the boat for launch and that he intended to back the trailer up to the water in order to do so. Thus, it is clear that the transportational function of the trailer, conveying the boat over land to its end destination, had not yet ended when Kull was in jured while alighting from the

3 A requirement that a motor vehicle must be moving in order to function as a motor vehicle would be contrary to the legislative intent expressed in 3106, i.e., that a parked vehicle can be used as a motor vehicle. See MCL 500.3106(1).-5- trailer. As a result, his use of the trailer was closely relat ed to the transportati onal function of the trailer. 4

USAA argues that Kull’s injury w as not caused by the trailer. In Thornton , 425 Mich at 659-660, our Supreme Court explained that the mere involvement of a motor vehicle in an injury is not sufficient to entitle a claimant to PIP benefits. Inste ad, the plain language of MCL 500.3105(1) reflects the Legislatur e’s intent “to provide cover age only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.’ ” Id . at 659. That is, “[t]he involvement of the car in the injury should be directly related to its character as a motor v ehicle.” Id . at 659-660 (citation omitted).

Kull’s attempt to alight from the boat by sliding down the sid e may have been unorthodox, but it does not appear to have been unreasonable. In Krueger v Lumberman’s Mut Cas Co , 112 Mich App 511, 516-518; 316 NW2d 474 (1982), this Court fo und coverage under 3106(1)(c) when a plaintiff was alighting from a delivery van a nd stepped into a pothole. We explained that there was a sufficient causal connection because “an injury caused by stepping into a hole in the road is foreseeably identifiable with the pr ocess of alighting from a vehicle” and “[s]uch road hazards are ha rdly unusual or unexpected.” Id . at 516-517. Likewise, we found coverage when a plaintiff slippe d on a plastic bag in the stair way of the exit of a city bus while alighting from it. Harris v Grand Rapids Area Transit Auth , 153 Mich App 829, 832; 396 NW2d 554 (1986). And in Putkamer , when the plaintiff slipped on a patch of ice while entering her vehicle, we found coverage, reasoning:

In the instant case, there is no dispute that plaintiff was en tering the vehicle when she slipped on some ice and was injured. Moreover , there is no dispute that plaintiff was entering the vehicle with the intent ion of traveling to her brother’s home. Hence, as a matter of law, she was using the p arked motor vehicle as a motor vehicle when she was entering the vehicle. [ Putkamer , 454 Mich at 636.]

Similarly, the involvement of the trailer in Kull’s injury was not merely incidental, fortuitous, or but for. Under the circumstances of this case, Kull was alighting from the boat while using it for its transporta tional function. Thus, like t he plaintiff in Harris who slipped on a plastic bag while alighting and like the plaintiff in Krueger who tripped on a pothole while alighting, there was a sufficien t causal connection between the injury and the trailer’s character as a motor vehicle.

In sum, applying the Putkamer test to the instant facts, Kull was entitled to PIP benefits under 3105(a) and 3106(1)(c).

4 The dissent’s reliance on the McKenzie Court’s treatment of Bialochowski is misplaced. Unlike the cement truck in Bialochowski which had reached its end destin ation and was being unloaded, the trailer was still engaged in its transportational function at the time Kull was injured because the trailer and its cargo had not yet reached its end destinati on.-6- Reversed and remanded for entry of an order granting summary d isposition in favor of Kull. We do not retai n jurisdiction.

/s/ Michael J. Kelly /s/ Cynthia Diane Stephens