Where a defendant insurance company moved for summary disposition, that motion should have been allowed because the plaintiff driver was not “getting in” her own vehicle at the time she struck by another.
“These consolidated appeals arise from two successive automobile accidents in which plaintiff was rear-ended by defendant Niles, exited her truck to examine the damage, then was struck by defendant Stone. In Docket No. 362922, defendant Fremont Insurance Company (Fremont) appeals by leave granted the trial court’s order denying its motion for summary disposition made pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). Fremont argues that plaintiff is not entitled to underinsured motorist coverage because she was not occupying the truck when defendant Stone hit her. We reverse.
“In Docket No. 363654, defendant Fred Niles appeals by leave granted the trial court’s separate order denying his motion for summary disposition made pursuant MCR 2.116(C)(8) (failure to state a claim on which relief can be granted) and MCR 2.116(C)(10). Niles argues that he did not play any role in causing the second accident and therefore cannot be found liable. We affirm.
“Fremont argues that the trial court erred by denying its motion for summary disposition because plaintiff was not ‘getting in’ the truck at the time of the accident. We reverse.
“There does not appear to be any caselaw defining ‘getting in’ for the purposes of an insurance contract, but there is useful guidance to be found in the caselaw regarding Section 3106 of The Insurance Code of 1956, MCL 500.1 et seq .
“It is clear that if the caselaw interpreting Section 3106(1)(c) is used to interpret this agreement then plaintiff was not getting in the truck at the time of the accident and, therefore, was not an occupant. However, the statute uses the term ‘entering into’ whereas the contract uses the term ‘getting in.’ Thus, to determine whether to apply the above-described caselaw, we must determine whether ‘entering into’ is synonymous with ‘getting in.’ At the outset, it is important to note that the above-described caselaw involves the interpretation of a statute while this case involves the interpretation of a contract. However, undefined terms in both statutes and contracts are interpreted consistent with their plain meanings. Because the plain meaning of ‘entering into’ is the same regardless of whether it is used in a statute or contract, it is appropriate for us to ascertain whether the plain meaning of the term used in Section 3106 is synonymous with the term used in this contract. There does not appear to be any caselaw that has examined this particular issue. Nevertheless, we can discern no basis upon which to conclude that the term ‘getting in’ has a broader meaning than ‘entering into.’ Rather, it seems apparent that the terms are synonymous, with ‘getting in’ being a quicker, less formal way to say it.
“In conclusion, the term ‘getting in’ from this contract is synonymous with the term ‘entering into’ from Section 3106 of The Insurance Code. In accordance with the caselaw applying Section 3106, it is clear that plaintiff was not getting in the truck at the time of the accident. Rather, she was preparing to get in the truck. Therefore, the trial court erred by denying Fremont’s motion for summary disposition.
“Niles argues that he was entitled to summary disposition pursuant to MCR 2.116(C)(8) because plaintiff failed to bring any allegations against him in her complaint. We disagree.
“In Docket No. 362922, we reverse the trial court’s order denying Fremont’s motion for summary disposition because plaintiff was not occupying the truck at the time of the accident. Therefore, pursuant to the terms of the insurance contract, she was not entitled to uninsured motorist coverage. Fremont, being the prevailing party, may tax costs. MCR 7.219(A). In Docket No. 363654, we affirm the trial court’s order denying Niles’s motion for summary disposition because the complaint apprised Niles of the nature of the claims against him and because a rational trier of fact could find that Niles failed to safely park his car. Plaintiff, being the prevailing party, may tax costs arising from the appeal against Niles. MCR 7.219(A). This case is remanded for additional proceedings consistent with this opinion.”
Lynch v. Stone; MiLW 08-108105, 9 pages; Michigan Court of Appeals unpublished per curiam; Maldonado, J., K. F. Kelly, J., Redford, J.; on appeal from Manistee Circuit Court; Bradley L. Putney for appellant; Ryan T. Glanville for appellee.
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