Fisher v. Lowe, Docket No. 60732 (Mich. Ct. App. Jan. 10, 1983)

Factual and Procedural Background

Plaintiff William L. Fisher, appearing in propria persona, commenced this tort action against defendants Lowe and Moffet for damage to his "beautiful oak tree" caused when defendant Lowe struck the tree while operating defendant Moffet's automobile. The trial court granted summary judgment in favor of defendants Lowe and Moffet pursuant to GCR 1963, 117.2(1). The trial court also denied plaintiff's request to enter a default judgment against the automobile insurer, State Farm Mutual Automobile Insurance Company. Plaintiff appealed as of right. The opinion was issued by the Michigan Court of Appeals on January 10, 1983 (panel: BRONSON, P.J., V.J. BRENNAN and J.H. GILLIS, JJ.), and is authored by J.H. Gillis. Leave to appeal was applied for.

Legal Issues Presented

Whether the trial court erred in granting summary judgment in favor of defendants Lowe and Moffet on the ground that defendants were immune from tort liability for damage to the tree under § 3135 of the no-fault insurance act (MCL 500.3135; MSA 24.13135).
Whether the trial court erred in refusing to enter a default judgment against State Farm Mutual Automobile Insurance Company when plaintiff had not served process on the insurer in accordance with the court rules, thus depriving the court of personal jurisdiction (GCR 1963, 105.4).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis, as stated in the opinion, proceeded in two parts:

Summary judgment for defendants Lowe and Moffet: The court affirmed the trial court's grant of summary judgment under GCR 1963, 117.2(1) because the defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act (MCL 500.3135; MSA 24.13135). The opinion states this statutory immunity as the basis for disposing of the tort claim against the defendants.
Denial of default judgment against State Farm: The court affirmed the trial court's refusal to enter a default judgment against the insurer because plaintiff did not serve process upon State Farm in accordance with the court rules. As a result, the court did not obtain personal jurisdiction over the insurer, citing GCR 1963, 105.4.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the trial court's grant of summary judgment in favor of defendants Lowe and Moffet and affirmed the trial court's refusal to enter a default judgment against State Farm.

Implications: The direct effects are that (1) defendants Lowe and Moffet were held immune from tort liability for the tree damage under MCL 500.3135; MSA 24.13135, and (2) no default judgment could be entered against State Farm because proper service was not effected and the court lacked personal jurisdiction under GCR 1963, 105.4. The opinion does not discuss or announce any broader legal precedent beyond these rulings.

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FISHER v LOWE

J.H. GILLIS, J.Page 419

We thought that we would never see A suit to compensate a tree.

A suit whose claim in tort is prest Upon a mangled tree's behest;

A tree whose battered trunk was prest Against a Chevy's crumpled crest;

A tree that faces each new day With bark and limb in disarray;

A tree that may forever bear A lasting need for tender care.

Flora lovers though we three, We must uphold the court's decree.

Affirmed.

Plaintiff commenced this action in tort against defendants Lowe and Moffet for damage to his "beautiful oak tree" caused when defendant Lowe struck it while operating defendant Moffet's automobile. The trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). In addition, the trial court denied plaintiff's request to enter a default judgment against the insurer of the automobile, defendant State Farm Mutual Automobile Insurance Company. Plaintiff appeals as of right.
The trial court did not err in granting summary judgment in favor of defendants Lowe and Moffet. Defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act. MCL 500.3135; MSA 24.13135.
The trial court did not err in refusing to enter a default judgment against State Farm. Since it is undisputed that plaintiff did not serve process upon State Farm in accordance with the court rules, the court did not obtain personal jurisdiction over the insurer. GCR 1963, 105.4.

FISHER v. LOWE