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                           February 1999

 

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Fisher v. Lowe

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Poetry Notes

 

William L. FISHER
Plaintiff Appellant,

v.

Karen LOWE, Larry Moffet and State Farm Mutual Automobile Insurance Company,
Defendants Appellees.

 

Docket No. 60732.
Court of Appeals of Michigan.
Submitted Nov. 3, 1982.
Decided Jan. 10, 1983.
Released for Publication May 6, 1983.

 

A wayward Chevy struck a tree
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.

The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.

Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
1) There is no liability
Since No Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,

Affirmed.

 

[1] AUTOMOBILES k251.13
48Ak251.13
Defendant’s Chevy struck a tree
There was no liability;
The No Fault Act comes into play
As owner and the driver say;

Barred by the Act’s immunity,
No suit in tort will aid the tree;
Although the oak’s in disarray,
No court can make defendants pay,
M.C.L.A. § 500.3135.

 

[2] PROCESS k4
313k4
No jurisdiction could be found
Where process service was unsound;
In personam jurisdiction
Was not even legal fiction
Where plaintiff failed to well comply
With rules of court that did apply.
GCR 1963, 105.4.

* * *

J.H. GILLIS, Judge.

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.1

 

1Plaintiff 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. M.C.L. § 500.3135; M.S.A. § 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.

 

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