Negligence & Intentional Tort
The court held, inter alia, that because the facts of the case fell squarely within the circumstances contemplated in Gunsell and Miller, the tailgate on the plaintiff's dump trailer constituted "equipment permanently mounted on the vehicle," as stated in MCL 500.3106(1)(b) and that a question of fact existed as to whether plaintiff's injury occurred as a direct result of his physical contact with the tailgate. Thus, the court affirmed the trial court's order denying defendant-insurer's motion for summary disposition in this no-fault action. The case arose from an accident that occurred when plaintiff was trying to unload contaminated dirt into a landfill from a dump trailer. He backed the trailer toward the landfill, bringing his rear tires to a lip at the edge of the landfill. He walked to the back of the trailer to release a safety latch on the trailer's tailgate, and then walked back to the front axle of his truck to activate the tailgate release switch. When the tailgate did not swing open as it should have, plaintiff walked to the back of the trailer and attempted to force it open by pushing on the tailgate in the direction of the landfill. The tailgate broke free and opened, causing plaintiff to lose his balance and fall over the edge, into the landfill. He fell approximately 12 feet onto a concrete base covered by 1 inch of dirt, injuring his back. Defendant claimed that subsection (b) was inapplicable because the tailgate did not constitute "equipment" within the meaning of that provision. Subsection (b) provides that accidental bodily injury arises out of the operation and use of a parked vehicle as a motor vehicle if the injury was a direct result of physical contact with equipment permanently mounted on the vehicle while the equipment was being used. The court held that the tailgate on the trailer in this case constituted "equipment" within the meaning of subsection (b). Similar to the rear door of the semitrailer in Gunsell, plaintiff here was injured while attempting to open the rear tailgate of his dump trailer. Also, the Miller court recognized that the lift of a delivery truck constituted equipment. Defendant argued that the tailgate is an integral part of the dump trailer in the same way that a trunk is an integral part of a car and that, to allow tailgates and trunks to qualify as "equipment" would allow the exception to swallow the rule. Defendant's argument was misguided because the exception set forth in subsection (b) further requires that the equipment be in operation or use when the injury occurred. Affirmed.