Auto Owners Ins. Co. v. Rucker
| Decision Date | 17 March 1991 |
| Docket Number | Docket No. 122929 |
| Citation | 469 N.W.2d 1,188 Mich.App. 125 |
| Parties | AUTO OWNERS INSURANCE COMPANY, a Michigan corporation, Plaintiff-Appellee, v. Vera RUCKER, as personal representative of the Estate of Melody Rucker, Defendant-Appellant, and Vernard Carter and Ethel Carter, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Joselyn & Keelean, P.C. by Michelle E. Mathieu, Detroit, for plaintiff-appellee.
Miller, Cohen, Martens & Ice, P.C. by William L. Martens and Paul R. Geary, Southfield, for Vera Rucker.
Before MARILYN J. KELLY, P.J., and HOLBROOK and SULLIVAN, JJ.
Defendant Vera Rucker appeals as of right from the entry of a declaratory judgment. The court held that defendants Vernard and Ethel Carter were not entitled to coverage under the automobile insurance policy issued by plaintiff, Auto-Owners Insurance Company. We affirm.
The facts underlying this case are not in dispute. Vera Rucker's sixteen-year-old daughter, Melody, was waiting in front of a friend's house for her ride home when defendant, Vernard Carter, drove by in his mother's car. The front-seat passenger, Damion Todd, held a loaded shotgun. As the car passed Melody, Todd leaned out of the open window and fired several shots, one of which killed Melody. Auto-Owners had issued an insurance policy to Ethel Carter, Vernard's mother, covering the automobile.
The sole issue before us on appeal is whether Melody Rucker's death arose out of the use of the motor vehicle. Defendant argues that the use of the automobile was an integral part of the drive-by shooting and that, therefore, coverage exists under plaintiff's policy.
The policy provides coverage for damage incurred by the insured "arising out of the use of an automobile." For that clause to apply, a causal connection between the use of the vehicle and the injury must be shown. The connection must be more than incidental or fortuitous. It is insufficient to show that, but for the automobile the incident would not have occurred. The injury must be foreseeably identifiable with the normal use of the vehicle. Thornton v. Allstate Ins. Co., 425 Mich. 643, 660-661, 391 N.W.2d 320 (1986); DAIIE v. Higginbotham, 95 Mich.App. 213, 222, 290 N.W.2d 414 (1980); Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975).
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