Court of Appeals of Michigan.

Mary L. KALO, Plaintiff–Appellee,

v.

HOME OWNERS INSURANCE COMPANY, Defendant–Appellant.

 

Docket No. 316442.

Sept. 9, 2014.

 

Genesee Circuit Court; LC No. 12–097757–NO.

 

Before: HOEKSTRA, P.J., and WILDER and FORT HOOD, JJ.

 

PER CURIAM.

*1 Defendant appeals as of right an order granting summary disposition to plaintiff in this no-fault action. We reverse and remand for proceedings consistent with this opinion.

 

This action arises out of injuries suffered by plaintiff on September 13, 2011. On that day, plaintiff was helping her daughter, Ashley MacDonald, move her belongings into a rented U–Haul truck in preparation for MacDonald’s move to Chicago. After all of MacDonald’s items were packed, MacDonald approached the U–Haul and observed plaintiff standing on an aluminum ladder at the rear of the U–Haul. Plaintiff told MacDonald that the latch on the rear door of the U–Haul was stuck, and that she was attempting to fix the latch so the door would close. MacDonald saw plaintiff pulling on a fabric strip that was attached to the door with one hand, while attempting to free the latch with the other hand, as she was standing on the ladder. As plaintiff pulled on the fabric strip, she lost her balance and fell off the ladder. Plaintiff requested no-fault benefits and defendant denied her request. She brought suit against defendant, and filed a motion for summary disposition. The trial court granted summary disposition in favor of plaintiff, and defendant now appeals.

 

Defendant argues that the trial court erred when it granted plaintiff’s motion for summary disposition because plaintiff was not eligible for no-fault benefits pursuant to MCL 500.3105 and MCL 500.3106. We agree.

 

Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10). This Court reviews a trial court’s decision on a motion for summary disposition de novo. Hoffner v. Lanctoe, 492 Mich. 450, 459; 821 NW2d 88 (2012). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v. Detroit Bd of Ed, 470 Mich. 274, 278; 681 NW2d 342 (2004). This Court reviews a “motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.”   Latham v. Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008). Summary disposition is properly granted “if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. A genuine issue of material fact exists when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party. Allison v. AEW Capital Mgmt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008).

 

MCL 500.3105 of the No–Fault Act, MCL 500.3101 et seq. “sets forth the parameters of personal protection insurance coverage.” Frazier v. Allstate Ins Co, 490 Mich. 381, 384; 808 NW2d 450 (2011). MCL 500.3105(1) provides:

 

Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.

 

*2 MCL 500.3106 “explains when such liability attaches in the case of a parked vehicle.” Frazier, 490 Mich. at 384. MCL 500.3106(1) provides:

Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:

 

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

 

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

 

(c) … the injury was sustained by a person while occupying, entering into, or alighting from the vehicle. [MCL 500.3106(1).]

 

In Frazier, our Supreme Court discussed the relationship between MCL 500.3105 and MCL 500.3106. The Court stated:

MCL 500.3106 expressly delineates when “accidental bodily injury aris[es] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” if the vehicle is parked. Therefore, in the case of a parked motor vehicle, a claimant must demonstrate that his or her injury meets one of the requirements of MCL 500.3106(1) because unless one of those requirements is met, the injury does not arise out of the use of a vehicle as a motor vehicle, under MCL 500.3105(1). [ Frazier, 490 Mich. at 384.]

 

Based on Frazier, the appropriate analysis when considering whether a person is entitled to personal protection insurance in relation to a parked vehicle is first to consider whether the injury meets one of the requirements provided by MCL 500.3106, and then to consider whether plaintiff is entitled to benefits pursuant to MCL 500.3105.

 

The holding in Frazier was inconsistent with earlier decided cases, such as Miller v. Auto–Owners Ins Co, 411 Mich. 633; 309 NW2d 544 (1981). In Miller, the Court held that in cases involving a claimant performing maintenance on a parked vehicle, compensation is required pursuant to MCL 500.3105 without regard to MCL 500.3106(1) and the general parked vehicle exceptions. Id. at 641. Frazier never specifically overruled Miller or related cases. However, the Supreme Court later made clear that the Frazier holding controlled over Miller in LeFevers v. State Farm Mut Auto Ins Co, 493 Mich. 960; 828 NW2d 678 (2013). In LeFevers, the Court reversed a Court of Appeals decision that relied on Miller, holding, “[t]he Court of Appeals erred by failing to recognize that the decision in Frazier [ ], effectively disavowed Miller [ ], and Gunsell v. Ryan, 236 Mich.App 204; 599 NW2d 767 (1999), to the extent those decisions are inconsistent with Frazier.” LeFevers, 493 Mich. at 960. LeFevers made clear that, to the extent Miller is inconsistent with Frazier, Frazier must be followed.

 

*3 Here, plaintiff cannot recover pursuant to MCL 500.3105 alone. FN1 Any analysis of plaintiff’s claim involving her injury required a complementary analysis of MCL 500.3106(1), because plaintiff’s injury arose out of her contact with a parked vehicle. See LeFevers, 493 Mich. at 960; Frazier, 490 Mich. at 384, 387. Accordingly, we reject plaintiff’s argument on appeal that plaintiff can collect no-fault benefits for her vehicle pursuant to MCL 500.3105(1) without consideration of MCL 500.3106.

 

FN1. The trial court held that plaintiff was entitled to benefits pursuant to MCL 500.3105 and MCL 500.3106. It is unclear whether the trial court was granting plaintiff’s relief under the statutes alternatively or together. To the extent the trial court was granting plaintiff’s motion based on MCL 500.3105 alone, the decision constituted legal error.

 

It is undisputed that plaintiff’s vehicle was parked at the time of plaintiff’s injuries. Therefore, to determine whether plaintiff was entitled to no-fault personal protection benefits as a matter of law pursuant to MCL 500.3105(1) and MCL 500.3106(1), we first look to whether plaintiff’s injury meets one of the requirements of MCL 500.3106(1). Plaintiff did not argue that MCL 500.3106(1)(a) was applicable in this case. Accordingly, this issue hinges on the applicability of MCL 500.3106(1)(b) and MCL 500.3106(1)(c) to plaintiff’s injuries.

 

MCL 500.3106(1)(b) requires plaintiff to show that “the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used.” Our Supreme Court has stated, “MCL 500.3106(1)(b) centers on the distinction between ‘equipment’ and ‘the vehicle.’ “ Frazier, 490 Mich. at 384–385. The Court defined “equipment” as “the articles, implements, etc., used or needed for a specific purpose or activity.” Id. at 385. The Court defined “vehicle” as “any means in or by which someone or something is carried or conveyed: a motor vehicle,” or “a conveyance moving on wheels, runners, or the like, as an automobile.” Id. at 385 (emphasis in original). The Court observed that the constituent parts of a vehicle are not equipment for the purposes on MCL 500.3106(1)(b). Id. In Frazier, the Court held that the passenger door of a vehicle was not equipment for the purposes of MCL 500.3106(1)(b); rather, the door was a constituent part of the vehicle. Id. at 386. Conversely, this Court has held that a grain delivery truck’s auger system, used for unloading grain from the truck, constituted permanently mounted equipment for the purposes of MCL 500.3106(1)(b). Drake v. Citizens Ins Co of America, 270 Mich.App 22, 27; 715 NW2d 387 (2006).FN2

 

FN2. We note that in Gunsell, 236 Mich.App at 210 n 5, the Court found that a rear door of a semitrailer constituted equipment. However, LeFevers expressly abrogated that holding as it related MCL 500.3106(1)(b). LeFevers, 493 Mich. at 960.

 

At issue here is a latch and leather strap that were attached to the rear door of the U–Haul. The door was located on the rear cargo box of the U–Haul. Plaintiff argues, and the trial court held, that the latch and strap were permanently mounted equipment that were used or needed for a specific purpose or activity, which was carrying cargo in the U–Haul. We disagree. Based on our review of the record, we hold that the latch and strap were components of the rear door of the vehicle, not permanently mounted equipment. The strap was intended for use when pulling the door open or closed, and the latch was intended to secure the door in the closed position. Therefore, the latch and strap were constituent parts of the U–Haul. Additionally, it would be impracticable to drive the U–Haul with the rear door unsecured by the latch, and the rear cargo box of the U–Haul would be difficult to open and close without the strap. Further, the latch and strap are physically part of the sliding rear door, and vehicle doors are considered constituent parts. See Frazier, 490 Mich. at 386. Therefore, the trial court erred when it granted plaintiff’s motion for summary disposition pursuant to MCL 500.3106(1)(b). We further hold that summary disposition in favor of defendants is appropriate on this issue because, in viewing the evidence in a light most favorable to plaintiff, there is no genuine question of fact whether the latch and strap constituted permanently mounted equipment.

 

*4 MCL 500.3106(1)(c) is another potential avenue for a plaintiff to demonstrate eligibility for benefits in the context of a parked vehicle. Pursuant to MCL 500.3106(1)(c), plaintiff must show that “the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.” FN3 Plaintiff asserts that she was entering into the vehicle at the time of her injury. This Court has held that a person who places her hand on a passenger vehicle door, opens the door, and takes a small step towards the open door, enters into the vehicle for the purposes of MCL 500.3106(1)(c). Shanafelt v. Allstate Ins Co, 217 Mich.App 625, 628, 632–633; 552 NW2d 671 (1996). Here, plaintiff was attempting to close the U–Haul door at the time she fell. There was no evidence presented that plaintiff was attempting to enter the cargo box at the time of her fall. Therefore, there is no evidence that plaintiff was entering into the vehicle. On appeal, plaintiff argues that she may have incidentally reached inside the cargo box of the U–Haul as she attempted to close the rear door, but there was no evidence presented to support that assertion. Accordingly, there was no genuine issue of material fact regarding whether plaintiff was entering into the U–Haul at the time she fell, and summary disposition on that basis would be erroneous.

 

FN3. We note that the trial court did not specifically address MCL 500.3106(1)(c) as a ground for its decision. On appeal, plaintiff argues that MCL 500.3106(1)(c) applies as an alternative theory for recovery.

 

To recover no-fault benefits, plaintiff must next show that her injury arose from the ownership, operation, maintenance, or use of the vehicle. MCL 500.3105(1). However, because we hold that plaintiff cannot establish that her injury meets one of the requirements of MCL 500.3106(1), plaintiff’s injury did not arise out of the use of a vehicle as a motor vehicle, under MCL 500.3105(1). Frazier, 490 Mich. at 384. Therefore, we do not consider whether plaintiff was maintaining the vehicle for the purposes of MCL 500.3105(1).

 

In summary, the trial court erred when it granted plaintiff’s motion for summary disposition. First, we note that case law clearly establishes that in order to recover no-fault benefits for injuries relating to a parked car pursuant to MCL 500.3105, plaintiff must demonstrate that her injury meets one of the requirements of MCL 500.3106(1). Id. Second, the trial court erred in granting summary disposition in favor of plaintiff on the basis of MCL 500.3106(1) because the strap and latch at issue did not constitute equipment that was permanently mounted to the vehicle and plaintiff was not occupying, entering, or alighting from the vehicle at the time of her injuries. MCL 500.3106(1). Further, because there is no genuine issue of material fact regarding plaintiff’s ability to recover pursuant to MCL 500.3106(1), summary disposition should be granted in favor of defendant. Finally, plaintiff cannot demonstrate that her injury meets one of the requirements of MCL 500.3106(1), so we do not consider whether plaintiff’s injury arose from the ownership, operation, maintenance, or use of the vehicle.

 

*5 Reversed and remanded for proceedings consistent with this opinion. Defendant, the prevailing party, may tax costs. MCR 7.219. We do not retain jurisdiction.

United States District Court,

S.D. Ohio,

Western Division.

TOTAL QUALITY LOGISTICS, LLC, Plaintiff,

v.

MACKTOON, INC., dba Arrow Transportation, Defendant.

 

No. 1:12–cv–620.

Signed Sept. 9, 2014.

 

Raymond William Lembke, Cincinnati, OH, for Plaintiff.

 

Juan Jose Gonzales Perez, Laura Monsivais Jurcevich, Sarah Crabtree Perez, Perez & Morris, Columbus, OH, for Defendant.

 

ORDER GRANTING PLAINTIFF’S MOTION FOR AN AWARD OF ATTORNEY’S FEES (Doc. 62) AND MOTION FOR AN AWARD OF COSTS (Doc. 63)

TIMOTHY S. BLACK, District Judge.

*1 This civil action is currently before the Court on Plaintiff Total Quality Logistics, LLC’s Motion for an Award of Attorney’s Fees (Doc. 62) and Motion for an Award of Costs (Doc. 63), and the parties’ responsive memoranda. (Docs. 64 and 65).

 

I. BACKGROUND

The facts of this case are set forth in the Court’s Findings of Fact and Conclusions of Law entered on February 19, 2014. (Doc. 60). Pertinent to the present motion, there was a written Broker/Carrier Agreement between Plaintiff and Defendant. (Id. at 3). Paragraph 16 of that agreement sets out the parties’ dispute resolution procedure: for disputes involving $10,000 or less, the parties are to confer and engage in binding arbitration if they cannot agree on a resolution. (Doc. 24–1 at 4). “For disputes whose amount in controversy exceeds $10,000.00 the Parties will seek litigation.” (Id.) Paragraph 16 further states that if a dispute arises between the parties resulting in litigation, “CARRIER agrees to pay all reasonable expenses, attorney fees and costs (including court costs) that BROKER incurs in any such litigation.” (Id.)

 

Shortly after removing this action to this Court, despite the explicit limitation of arbitration to disputes involving $10,000 or less in the Broker/Carrier Agreement, and despite Defendant’s express acknowledgement that “[t]he alleged actual loss or injury to the property in question is in excess of Ten Thousand Dollars,” Defendant filed a motion to dismiss or stay pending arbitration on August 22, 2012, arguing that this action was subject to arbitration. (Doc. 24–1 at 4; Doc. 1 at 2; Doc. 5). The Court concluded in its Order denying Defendant’s motion that “the motion must fail based on the express language of the agreement.” (Doc. 11 at 2).

 

In the course of discovery in this action, Plaintiff served Defendant with Requests for Admissions. (Doc. 62–2 at 6–11). Defendant’s responses were served February 21, 2013. (Id. at 12–16). Plaintiff’s Request No. 4 asked Defendant to “[a]dmit that the cargo transported by Defendant during the Utah Trip was in a good and frozen condition when that cargo was loaded into Defendant’s Truck at the beginning of the Utah Trip.” FN1 (Id. at 9). Defendant’s response was “Deny.” (Id. at 15). Plaintiff’s Request No. 5 asked Defendant to “[a]dmit that not all of the cargo transported by Defendant during the Utah Trip was in a good and frozen condition when the cargo was unloaded from Defendant’s Truck at the end of the Utah Trip.” (Id. at 9). Again, Defendant’s response was “Deny.” (Id. at 15).

 

FN1. The “Utah Trip” was defined in the Requests as “Defendant’s transportation of cargo from Malvern, Pennsylvania to Clearfield, Utah as alleged in paragraph 7 of TQL’s Complaint and admitted in paragraph 7 of Defendant’s Answer in this action.” (Doc. 62–2 at 6).

 

Because Defendant did not admit that the cargo was in good and frozen condition when it went into Defendant’s truck, Plaintiff deposed Daryl Moats, a designated representative of the Americold facility in Malvern, Pennsylvania, from which the cargo originated. (Doc. 23). Citing to Mr. Moats’s deposition, the Court found that “[t]he undisputed testimony is that the cargo was in good condition and frozen when it was loaded onto Defendant’s truck.” (Doc. 60 at 3). Similarly, because Defendant did not admit that not all of the cargo was delivered in good and frozen condition, Plaintiff deposed Drew Dunifer, who observed the cargo when it was unloaded in Clearfield, Utah. (Doc. 21). Citing to Mr. Dunifer’s deposition, the Court found that the temperature of the cargo was above freezing at the time it was unloaded. (Doc. 60 at 7).

 

*2 In addition to Mr. Moats and Mr. Dunifer, Plaintiff also took the depositions of Dick Powell and Keith Macktoon. (Docs. 22 and 24). This action was submitted to the Court for trial on depositions, and the testimony of all four of these witnesses was utilized by the Court in its Findings of Fact and Conclusions of Law. (Doc. 60). The Court entered judgment against Defendant in the amount of $36,589.08. (Id. at 14).

 

II. ANALYSIS

A. Motion for Attorney’s Fees

It is well-settled that the Carmack Amendment preempts state statutes that provide for fee-shifting. See, e.g., Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874 (5th Cir.1996). However, that settled principle does not answer the question of whether the Carmack Amendment preempts a carrier’s voluntary fee-shifting agreement. That question is answered instead by federal statutory law, specifically 49 U.S.C. § 14101(b)(1). This statute states:

 

A carrier providing transportation or service subject to jurisdiction under chapter 135 may enter into a contract with a shipper, other than for the movement of household goods described in section 13102(10)(A), to provide specified services under specified rates and conditions. If the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies and may not subsequently be challenged on the ground that it violates the waived rights and remedies.

 

49 U.S.C. § 14101(b)(1). Jurisdiction under chapter 135 extends to any interstate transportation. 49 U.S.C. § 13501(1)(A). As the freight being carried in this case was frozen bread products and not “household goods,” § 14101(b)(1) is fully applicable. Paragraph 16 of the Broker/Carrier Agreement is one of the “specified … conditions” to which Plaintiff and Defendant agreed in writing. While the Carmack Amendment preempts state law, it does not preempt another federal statute. Moreover, nothing in the Carmack Amendment conflicts with § 14101(b)(1).

 

Defendant reads Great West Cas. Co. v. Flandrich, 605 F.Supp.2d 955 (S.D.Ohio 2009), too broadly. Plaintiff in that case was the subrogated insurer for the shipper. Id. at 960. The shipper issued a bill of lading for the cargo at issue which stated that “every service to be performed hereunder shall be subject to the terms and conditions of [this] Uniform Domestic Straight Bill of Lading.” Id. (brackets in original). The court found that “[t]here is nothing in the Bills of Lading that entitles American Foods to attorney’s fees.” Id. at 967–68. Because the document designated by the shipper as the document supplying the terms governing the carriage did not provide for recovery of attorney’s fees, the court had no need to consider 49 U.S.C. § 14101(b)(1).

 

In this case, neither Plaintiff nor Defendant issued a bill of lading. The bill of lading submitted by Defendant was issued by third party Americold. (Doc. 23 at 10–11). Plaintiff is not mentioned anywhere in this bill of lading, there is nothing in the record to show that Plaintiff ever saw this bill of lading and, unlike the shipper in Great West, Plaintiff did not state that this bill of lading contained the terms governing carriage of the relevant cargo. An entity is not bound by a bill of lading to which it is not a party.   Great West, 605 F.Supp.2d at 965. The contract between Plaintiff and Defendant is the Broker/Carrier Agreement. Paragraph 16 of that contract, which Defendant has previously relied on in this litigation, contains Defendant’s express agreement to pay Plaintiff’s reasonable attorney’s fees.

 

*3 Questions about the enforceability of the clause were Defendant hypothetically not at fault are irrelevant here, as Defendant was at fault and did breach. The facts are clear that Defendant did not deliver the relevant cargo in the same condition as Defendant received it, that Defendant did not maintain the cargo at –10 degrees as required by both the Rate Confirmation issued by Plaintiff and the bill of lading issued by Americold, and that Defendant’s delay in replacing the belt on its refrigeration unit resulted in the entire cargo being lost. There can be no question that Plaintiff was the prevailing party in this case, and thus contrary to Defendant’s assertions, Plaintiff does not seek to penalize Defendant “regardless of breach or fault” or in any “unjust and unreasonable” way. (Doc. 64 at 4).

 

The evidence of record establishes the work performed in this action by Plaintiff’s counsel. (Doc. 62–2 at 17–22). Plaintiff’s counsel expended 133.5 hours of attorney time, which the Court finds is reasonable given the procedural posture and circumstances of the case. (Id. at 4–5). Plaintiff has calculated its attorney’s fees based on an hourly rate of $250, which the Court finds is reasonable for the current Cincinnati market. (Id.) Consequently, Plaintiff requests an award of attorney’s fees in the amount of $33.375.00.

 

Based on the foregoing, the Court finds that the parties’ fee-shifting provision in the Broker/Carrier Agreement is enforceable and that Plaintiff is entitled to recover $33,375.00 in attorney’s fees from Defendant.

 

B. Motion for Costs

“Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party.” Sales v. Marshall, 873 F.2d 115, 120 (6th Cir.1989); see also, e.g., Watkins & Son Pet Supplies v. Iams Co., 197 F.Supp.2d 1030, 1036 (S.D.Ohio 2002).

 

Plaintiff has shown that Mr. Moats’s deposition was necessary to establish that the cargo involved in this case was in good and frozen condition when it was loaded onto Defendant’s truck in Pennsylvania, that Mr. Dunifer’s deposition was necessary to establish the condition of the cargo when it was unloaded from Defendant’s truck in Utah, that Mr. Powell’s deposition was necessary to establish that Defendant’s allowing the products to become as warm as they were necessitated disposal of the products and to establish damages, and that Mr. Macktoon’s deposition was necessary for Plaintiff to learn Defendant’s version of events and to establish the facts that substantially diminished the credibility of that version. (Doc. 60 at 9–10). Plaintiff has further shown that exclusive of attorney’s fees, it paid $502.30 to obtain Mr. Macktoon’s deposition, $1,106.51 to obtain Mr. Dunifer’s deposition, $588.00 to obtain Mr. Moats’s deposition, and $721.55 to obtain Mr. Powell’s deposition. (Doc. 63–2 at 2–6). The total cost for the four depositions was therefore $2,918.36. Defendant has not specifically opposed the substance of Plaintiff’s Motion for an Award of Costs.

 

*4 Based on the foregoing, the Court finds that Plaintiff is entitled to recover $2,918.36 in deposition costs from Defendant.

 

III. CONCLUSION

Accordingly, Plaintiff’s Motion for an Award of Attorney’s Fees (Doc. 62) and Plaintiff’s Motion for an Award of Costs (Doc. 63) are hereby GRANTED. Plaintiff shall recover $33,375.00 in attorney’s fees and $2,918.36 in costs from Defendant Macktoon, Inc., for a total of $36,293.36.

 

IT IS SO ORDERED.