WHITBECK, J.
In this declaratory judgment action involving underinsured motorist coverage, the circuit court granted summary disposition pursuant to MCR 2.116(C)(10) for plaintiff, Westfield Insurance Company. Defendants, Ken's Service and Mark Robbins, appeal as a matter of right. On appeal, they assert that the trial court erred by misinterpreting the language in the insurance contract to deny them coverage. We affirm.
On December 19, 2009, defendant Ken's Service, a tow truck company, dispatched one of its employees, Mark Robbins, to assist a police officer, Roderick Vessey, in removing his vehicle from a ditch on US-131. When he arrived at the scene, Robbins got out of the tow truck and connected the tow cables to the police vehicle. While he was operating the control levers positioned on the driver's side of the tow truck, another driver, Ashley See, sideswiped
Harold Ingersoll owned the car that Ashley See was driving. Ingersoll's insurance company, Auto-Owners Insurance Company, agreed to tender the full $100,000 limits of the policy to settle the claim. However, Robbins sought additional compensation from Westfield Insurance, Ken's Service's insurer, based on underinsured motorist coverage obtained for the tow truck. Ken's Service had underinsured motorist coverage in the amount of $1,000,000. The uninsured/underinsured motorist endorsement to the Westfield Insurance policy provided for underinsured coverage for the "insured," which the policy defined, in relevant part, to include "[a]nyone [besides the named insured or a family member] `occupying' a covered `auto'...." Further, the endorsement defined "occupying" to mean "in, upon, getting in, on, out or off."
Westfield Insurance refused to pay on the basis of its determination that Robbins was not "occupying" the vehicle at the time of the accident. Westfield Insurance then commenced this action for a determination of its obligations to Ken's Service and Robbins under the insurance contract.
Ken's Service and Robbins moved for summary disposition. They claimed that Robbins was leaning on the tow truck for balance and support when See struck him and that this occurred while he was operating the towing controls, which were located on the driver's side of the truck. Ken's Service and Robbins asserted that Westfield Insurance owed Robbins additional compensation because his injuries greatly exceeded the negligent driver's $100,000 policy limit, and Robbins was an "insured" under the terms of the underinsured motorist endorsement to the policy because he was "occupying" the insured vehicle by leaning "upon" it.
Westfield Insurance responded, arguing that Robbins was not occupying the tow truck when See struck him. Westfield Insurance asserted that Robbins clearly had both feet on the ground and had been outside the truck for several minutes when he was hit and injured. Westfield Insurance claimed that the term "upon" can only be properly interpreted in the context of the word "occupying." Westfield Insurance maintained that Robbins's physical contact with the truck needed to be "in the context" of being physically inside the truck, that his actions were not "in the context" of being an occupant, and that he therefore was not insured under the policy.
The trial court interpreted the contract to mean that Robbins could only prevail if he could demonstrate that he was "occupying" the vehicle by being "upon" it when he was struck. The trial court focused on the word "occupying" and determined that coverage depended on a person's connectedness with the activity of being a driver or passenger of the vehicle. According to the trial court, if the activity or physical contact was incidental to being a driver or passenger, then the person was occupying the vehicle and therefore would be insured. The trial court said that physical contact with the vehicle alone was not relevant. According to the trial court, the dispositive issue was whether Robbins's actions were the natural and probable result of being a driver or passenger. Thus, on the basis of the fact that Robbins was operating the vehicle as a towing machine when he was struck, the trial court concluded that his use was unrelated to being a driver or passenger of the truck. Accordingly, the
Ken's Service and Robbins now appeal.
This Court reviews de novo a trial court's grant of summary disposition.
Courts treat insurance contracts no differently than any other contract. Accordingly, we should give contractual language that is clear and unambiguous full effect according to its plain meaning unless it violates the law or is in contravention of public policy.
The Michigan Supreme Court interpreted the identical contractual language at issue in this case in Rednour v. Hastings Mut. Ins. Co.
The Michigan Supreme Court noted in Rednour that its prior decision in Rohlman
While the Rednour Court agreed with the Rohlman II statement that a person did not need to be physically inside the vehicle to be "upon" it, it nevertheless held that physical contact alone is insufficient to show that "the person was `upon' the vehicle so as to be `occupying' the vehicle."
Here, the parties focused on the word "upon" and the meaning of that word. In Rednour, the Supreme Court interpreted the meaning of "upon" to mean "on or up and on." Robbins alleged that he was "upon" the truck because he had both hands on it and was leaning against the tow truck for balance and support at the moment of impact. But, as the Michigan Supreme Court stated in Rednour, "physical contact alone may [not] be sufficient to show that the person was `upon' the vehicle so as to be `occupying' the vehicle."
We affirm.
SAWYER, P.J., concurred with WHITBECK, J.
M.J. KELLY, J. (dissenting).
Because I believe that the trial court erred in its interpretation of the word "upon" in the subject underinsured motorist insurance policy, I would reverse its decision to grant summary disposition in favor of plaintiff, Westfield Insurance Company, and instead grant summary disposition in favor of defendants, Ken's Service and Mark Robbins. Therefore, I must respectfully dissent.
Robbins worked for Ken's Service as a tow truck driver. On the evening of the accident, Robbins was sent to tow a police vehicle out of a ditch. After pulling his tow truck to the shoulder of the highway, Robbins activated the emergency lights, got out of the tow truck, hooked cables to the police cruiser, and walked back to the truck's bed. He then began the process of pulling the police vehicle from the ditch by activating the levers on a control panel located on the driver's side of the truck. He averred in an unrebutted affidavit that he was leaning on the tow truck for balance and support with both his hands touching the truck; his right hand was on the control panel, and with the left he grasped the truck's railing. It was then that a passing motorist struck him and caused him serious injuries.
At issue is Robbins's entitlement to underinsured motorist coverage under Westfield's policy insuring the tow truck. Under the policy, an "insured" is entitled to uninsured or underinsured motorist coverage resulting from "bodily injury" caused by "an accident." The policy provides that, if the named insured is an individual, the insureds are the "Named Insured and any `family members'" as well as anyone "else `occupying' a covered `auto' or a temporary substitute for a covered `auto.'"
As noted by the majority, our Supreme Court has interpreted this identical language. See Rednour v. Hastings Mut. Ins. Co., 468 Mich. 241, 661 N.W.2d 562 (2003). In Rednour, the plaintiff was struck by an oncoming vehicle while changing a flat tire on the insured vehicle. Id. at 242, 661 N.W.2d 562. The plaintiff was approximately six inches away from the insured vehicle when he was struck by the other car. He had loosened the lug nuts on the wheel and was moving toward the rear of the vehicle when he was hit. Id. The plaintiff claimed that he was an insured entitled to no-fault benefits because he was "occupying" the vehicle, as defined by both the no-fault act and the language of the policy. He argued that he was "upon" the vehicle because he was pinned between the two vehicles during the collision. Id. at 249, 661 N.W.2d 562. The Court noted that it had already interpreted
On remand, this Court noted that physical contact with the insured vehicle is required to be "upon" the vehicle, although the person need not be completely physically supported by the vehicle. Rohlman v. Hawkeye-Security Ins. Co. (On Remand), 207 Mich.App. 344, 357, 526 N.W.2d 183 (1994) (Rohlman II) (noting that a child could be "upon" a scooter by having one foot on it and another on the ground). While the Rednour Court agreed with the Rohlman II statement that a person did not need to be physically inside the vehicle to be "upon" it, the Court nevertheless held that physical contact alone is insufficient to show that "the person was `upon' the vehicle so as to be `occupying' the vehicle." Rednour, 468 Mich. at 250, 661 N.W.2d 562. The Court explained: "The relevant dictionary definitions... clarify that one must be on or up and on a vehicle in order to be `upon' it." Id.
More recently still, this Court analyzed the identical contractual language in Bledsoe v. Auto Owners Ins. Co. (On Remand), unpublished opinion per curiam of the Court of Appeals, issued December 4, 2003 (Docket No. 236735), 2003 WL 22871321. There the plaintiff's foot was run over by a truck while he was stopped at a toll booth to pay the toll. While he was leaning on the insured vehicle and bending over to locate some dropped change, the truck attempted to pass him and ran over his foot. Id. at 2. This Court noted that the insurance policy provided greater coverage than that guaranteed under the no-fault act. Id. After distinguishing Rednour, the Court in Bledsoe concluded that the plaintiff was insured because he was "upon" the truck:
Although not binding precedent, I find this reasoning persuasive. Robbins's unrebutted affidavit indicates that he was leaning on the tow truck for balance and support at the time he was struck by the passing automobile. Therefore, like the plaintiff in Bledsoe, he was "on" ("supported by") or "upon" and thus "occupying" the vehicle in accordance with the policy. And because there is no evidence to rebut that Robbins was being supported by the vehicle, the trial court should have granted summary disposition in favor of defendants.
If Westfield wanted a more restrictive definition for "occupying," it could have chosen to insert a different definition into its policy. As it is, the words it chose were "in, upon, getting in, on, out or off." And, because the definition of "on" is "so as to be or remain supported by or suspended from," Robbins plainly demonstrated that he comes within the policy's definition of "occupying" and coverage should have been afforded him.
For this reason, I respectfully dissent.