This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-1177

Arlyn Minkel,

Appellant,

vs.

Progressive Casualty Insurance Company,

Respondent.

Filed November 24, 1998 Reversed

Lansing, Judge

Redwood County District Court

File No. C097487

Troy D. DeSanto, Nelson Personal Injury Attorneys, U.S. Bank Place, Suite 440, 1010 West St. Germain, St. Cloud, MN 56301 (for appellant)

Scott A. Brehm, Scott Brehm & Associates, 330 Parkdale Plaza West, 1660 South Highway 100, Minneapolis, MN 55416 (for respondent)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In an appeal from summary judgment, Arlyn Minkel disputes the denial of no-fault insurance coverage for an injury caused by a fall from the bed of his pickup truck. Because Minkel's injury was a natural and reasonable consequence of the vehicle's use, we reverse.

FACTS

Arlyn Minkel injured his back in a fall from the bed of his pickup truck. The accident occurred while Minkel was helping his mother move a box containing a plastic and metal china hutch into the back of the pickup. The pickup was parked abutting the deck of his mother's home. The deck was level with Minkel's chest and was about two and a half feet higher than the pickup. The pickup's tailgate was open, and a horizontal space of about two feet separated the deck from the pickup. Minkel and his mother both lifted the box containing the china hutch and together carried the box out of the house and across the deck. Minkel's mother entered the pickup bed first, carrying one end of the plastic hutch. After Minkel stepped from the deck onto the truck bed, his mother lost her balance and forced Minkel backward off the end of the pickup bed. Minkel fell from the truck, hitting his lower back, first against the deck and then against the ground.

Minkel sought medical treatment for his injury and submitted a claim for basic economic loss benefits under his no-fault auto insurance policy with Progressive Casualty Insurance Company. Progressive Casualty informed Minkel they were investigating the loss and needed to obtain a recorded statement from him to determine coverage. Minkel brought this declaratory judgment action against Progressive Casualty, and both moved for summary judgment. The district court granted summary judgment for Progressive Casualty, and Minkel now appeals.

D E C I S I O N

A court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn. R. Civ. P. 56.03). Progressive Casualty accepts Minkel's version of the facts for the purposes of this appeal, and thus our review is limited to determining whether the district court erred in concluding that Minkel's accident arose out of "maintenance or use of a motor vehicle" as defined by Minnesota's no-fault insurance statute. This question is a legal issue, subject to de novo review. Continental W. Ins. Co. v. Klug, 415 N.W.2d 876, 877 (Minn. 1987); Medicine Lake Bus Co. v. Smith, 554 N.W.2d 623, 624 (Minn. App. 1996).

Minnesota's no-fault insurance statute governs Minkel's claim for basic economic loss benefits. The statute provides that

[i]f the accident causing injury occurs in this state, every person suffering loss from injury arising out of maintenance or use of a motor vehicle or as a result of being struck as a pedestrian by a motorcycle has a right to basic economic loss benefits.

Minn. Stat. § 65B.46, subd. 1 (1996) (emphasis added). The statute defines the phrase "maintenance or use of a motor vehicle" as

maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into and alighting from it. Maintenance of use of a motor vehicle does not include (1) conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises, or (2) conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into or alighting from it.

Minn. Stat. § 65B.43, subd. 3 (1996).

Whether a given accident arises out of the maintenance or use of a motor vehicle turns on the facts of each case. Klug, 415 N.W.2d at 877-78. Courts must first consider "the extent of the causation between the automobile and the injury." Id. at 878. If the plaintiff establishes causation, then the court must "determine whether an act of independent significance occurred, breaking the causal link between `use' of the vehicle and the injuries inflicted." Id. If the court finds no intervening independent act, no-fault coverage applies unless the vehicle was not being used for transportation purposes at the time of the injury. Id. Progressive Casualty concedes that under Minkel's version of the facts, the pickup was being used for transportation purposes at the time of the accident. Therefore, our review is limited to the first two Klug factors: (1) the extent of causation and (2) the existence of an act of independent significance.

To satisfy the first Klug factor, Minkel must establish that his pickup was an "active accessory" in causing the injury. Id. (quoting Holm v. Mutual Serv. Cas. Ins. Co., 261 N.W.2d 598, 603 (Minn. 1977)). This causation standard is "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury." Id. (quoting Tlougan v. Auto-Owners Ins. Co., 310 N.W.2d 116, 117 (Minn. 1981)). A plaintiff establishes a causal connection by showing "the injury is a natural and reasonable incident or consequence" of the vehicle's use. Medicine Lake Bus Co., 554 N.W.2d at 625 (Minn. 1996) (quoting North River Ins. Co. v. Dairyland Ins. Co., 346 N.W.2d 109, 114 (Minn. 1984)). Conduct in the course of loading a vehicle is included if it occurs while the person injured is occupying, entering into, or alighting from the vehicle. Minn. Stat. § 65B.43, subd. 3.

On the submitted facts, Minkel was loading the pickup and fell as he loaded the box. He entered the pickup bed and then, as a result of his mother's loss of balance, alighted from the pickup. His injury was caused by his mother losing her balance and his position on the pickup's tailgate. A pickup truck is typically higher off the ground than a standard passenger automobile. The bed of this particular pickup, a 1983 Chevy S10 extended cab pickup, was level with Minkel's thigh. The force of his mother's fall against the box and the elevation and extension of the pickup bed combined to cause Minkel's back injury. The back injury Minkel sustained in his fall was a natural and reasonable consequence of the way the vehicle was being used. See Kern v. Auto Owners Ins. Co., 526 N.W.2d 409, 410 (Minn. App. 1995) (pickup truck was "active accessory" in causing plaintiff's injury because it was specially designed to accommodate building materials that blew out of the truck and struck the plaintiff); see also North River Ins. Co., 346 N.W.2d at 113-14 (trial court did not err in finding plaintiff's injury arose from use or maintenance of motor vehicle when injury occurred from attempt to remove tarpaulin attached to top of trailer); Galle v. Excalibur Ins. Co., 317 N.W.2d 368, 370 (Minn. 1982) (finding coverage when plaintiff was injured by part of vehicle that malfunctioned but denying coverage for two other direct lifting injuries).

The facts are legally distinguishable from cases in which the vehicle is merely the situs of an independent injury. See Marklund v. Farm Bureau Mut. Ins. Co., 400 N.W.2d 337, 340 (Minn. 1987) (case involving a plaintiff who fell while walking to pay for gasoline was a typical "slip and fall" case not covered by the act); Tlougan, 310 N.W.2d at 117 (pickup truck merely "the situs of match-playing incident" that injured five-year-old passenger); Huynh v. Illinois Farmers Ins. Co., 421 N.W.2d 390, 392-93 (Minn. App. 1988) (no coverage when plaintiff suffered lifting injury from placing partially filled ten-gallon water cooler into the hatchback of car), review denied (Minn. May 18, 1988); Fire & Cas. Ins. Co. v. Illinois Farmers Ins. Co., 352 N.W.2d 798, 800 (Minn. App. 1984) (no coverage when vehicle was merely situs of "typical hunting accident").

Having found the requisite causation, we must next determine whether an act of independent significance broke the link between Minkel's use of the pickup truck and his injuries. Klug, 415 N.W.2d at 878. Progressive Casualty argues that an act of independent significance occurred when Minkel's mother lost her balance and pushed him out of the pickup. Under Klug, however, our analysis must focus on the link between Minkel's use of the pickup and his injury. The submitted facts provide a continuing link. Minkel fell while loading the pickup, after he entered the pickup's bed and then unexpectedly alighted from it. His back injury is directly connected to the elevation and placement of the pickup. Although his mother set the accident in motion when she lost her balance, that does not diminish the role of the pickup's features in the injury. Cf. Holm, 261 N.W.2d at 603-04 (injuries inflicted by police officer during course of an arrest did not arise out of use of the police car); Peterson v. American Family Mut. Ins. Co., 417 N.W.2d 316, 319 (Minn. App. 1988) (abduction resulting in motorist's murder constituted independent act), review denied (Minn. Mar. 30, 1988).

Accordingly, we conclude that Minkel's injury meets the Klug factors. Minkel's injury arose out of maintenance or use of an automobile as defined by Minnesota's no-fault insurance statute.

Reversed.