Bourne v. Farmers Ins. Exchange

• Decision Date: 06 July 1995
• Docket Number: Docket No. 98820,No. 17,17
• Citation: 449 Mich. 193,534 N.W.2d 491
• Parties: , 42 A.L.R.5th 953 Harry G. BOURNE, Plaintiff-Appellee, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 491

534 N.W.2d 491

449 Mich. 193, 42 A.L.R.5th 953

Harry G. BOURNE, Plaintiff-Appellee, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant.

Docket No. 98820.

Calendar No. 17.

Supreme Court of Michigan.

Argued April 5, 1995.

Decided July 6, 1995.

UAW-GM Legal Services Plan by Orene Bryant, Flint, for plaintiff.

Hayduk, Andrews & Hypnar, P.C. by Mark S. Hayduk and Paul J. Ellison, Detroit, for defendant.

Gross, Nemeth & Silverman, P.C. by James G. Gross and Steven G. Silverman, Detroit, for amici curiae Auto Club Ins. Ass'n and Mich. Ass'n of Ins. Companies.

Richard E. Shaw, and Jeffrey T. Meyers, Detroit, for amicus curiae Mich. Trial Lawyers Ass'n.

Opinion

RILEY, Justice.

In this case we are called upon to determine whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle. Specifically, we must decide whether plaintiff's injuries to his face and ankle from the assailant's blow were the type of injuries that arise out of the normal use of a vehicle. Because this injury was a physical attack inflicted on plaintiff, we conclude that it did not arise out of the use of the vehicle as a motor vehicle.

With regard to the matter of attorney fees, we find that there has been enough controversy over the scope of the phrase "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" in M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), that plaintiff's claim was not frivolous. Hence, we reverse the decision of the Court of Appeals with regard to whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle, and we affirm regarding costs and attorney fees.

I

On the evening of June 26, 1989, plaintiff entered his parked car and found two men in the back seat. These men forced him at gunpoint to drive to a church parking lot a mile away. One of the assailants then struck him in the face with his fist and threw him to the ground. The blow was so severe that plaintiff's cheekbone, nose, and septal area were broken. When plaintiff hit the ground, he also broke his ankle. The assailants then drove away in the car. Subsequently, plaintiff filed a claim with defendant, his no-fault insurer. Defendant readily compensated plaintiff for the loss of his vehicle, but refused compensation for his personal injuries.

On May 30, 1990, plaintiff commenced this lawsuit, alleging that his injuries were compensable under the no-fault act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq. Defendant filed a motion for summary disposition, contending that plaintiff's injuries did not arise out of the ownership, operation, maintenance, or use of the motor vehicle as a motor vehicle. On August 7, 1990, the court ruled in favor of defendant, finding that plaintiff's injuries did not arise out of the ownership or use of the motor vehicle. The court did, however, deny defendant costs and attorney fees on the ground that plaintiff's claim was not frivolous. The Court of Appeals reversed the grant of summary disposition and affirmed the denial of costs and attorney fees. ¹ Defendant petitioned this Court for leave to appeal, which was granted on December 29, 1994. ²

II

In this case, defendant was granted summary disposition pursuant to MCR 2.116(C)(10), which provides that "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." When reviewing such a motion, we "consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party." Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). Only if there is no genuine issue of any material fact is the moving party entitled to judgment as a matter of law. Stevens v. McLouth Steel Products Corp., 433 Mich. 365, 446 N.W.2d 95 (1989).

A

We find that summary disposition was appropriate. M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) provides that an insurer is required to pay benefits where accidental bodily injury arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.

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.

The Court of Appeals had an opportunity to apply this rule in the present case.

We believe that there is a direct causal relationship between the use of a motor vehicle as a motor vehicle and injuries sustained during a so-called carjacking. The physical assault only occurs because the assailants wish to take possession of the vehicle. Unfortunately, such incidents are nowadays within the ordinary risks of driving a motor vehicle. [203 Mich.App. 341, 344, 512 N.W.2d 80 (1994).]

We are persuaded, however, that the Court of Appeals reached the wrong conclusion.

Plaintiff's injuries arose out of the blows inflicted on him by a carjacker. Hence, plaintiff suffered a personal physical attack. Generally, such an attack is not compensable. See, e.g., Detroit Automobile Inter-Ins. Exchange v. Higginbotham, 95 Mich.App 213, 290 N.W.2d 414 (1980), Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979), and O'Key v. State Farm Mut. Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979).

In fact, this Court recently came to this very conclusion in Thornton v. Allstate Ins., 425 Mich. 643, 661, 391 N.W.2d 320 (1986). In Thornton, a taxicab driver picked up a customer. As he began to drive away from the curb, the customer drew a gun, shot him in the neck, and robbed him of his money. The injured driver then filed suit against the insurer of the cab, claiming that his injuries arose out of the use of the cab. However, this Court found:

While the injuries [a gunshot wound to the neck] were perhaps "foreseeably identifiable" with the occupational or commercial use of a motor vehicle as a taxicab, the relation of the gunshot wound to the functional use of a motor vehicle as a motor vehicle was at most merely "but for," incidental, and fortuitous.

This Court arrived at a similar result in Marzonie v. Auto Club Ins. Ass'n, 441 Mich. 522, 534, 495 N.W.2d 788 (1992), in which the plaintiff claimed that his injuries arose out of the use of his car. Marzonie had had an argument with someone that ended when the person began shooting at Marzonie's car. Marzonie was hit and seriously injured. This Court found that the insurance company had no duty to cover Marzonie because his injuries did not arise out of the use of this motor vehicle as a motor vehicle.

In the present case, the testimony of the plaintiff clearly demonstrates that shots were fired during the continuation of an argument that had begun before the chase. The involvement of the automobiles was incidental and fortuitous. Although Mr. Oaks says that the plaintiff's car was moving toward him at a "creep," the shooting arose out of a dispute between two individuals, one of whom happened to be occupying a vehicle at the moment of the shooting.

Similarly, in Auto-Owners Ins. Co. v. Rucker, 188 Mich.App. 125, 127, 469 N.W.2d 1 (1991), plaintiff was a victim of a drive-by shooting.

In this case, the death arose from the firing of a shotgun. Although the vehicle made it easier for the criminals to approach the scene and to escape, its use was nonetheless incidental to the injury. One shudders to contemplate whether drive-by shootings have become foreseeable. It is, however, uncontestable that they are not identified with the normal use of a motor vehicle.

In Higginbotham, supra at 222, 290 N.W.2d 414, a woman was driving in her car when her estranged husband forced her to the side of the road with his vehicle. The husband then proceeded to shoot her numerous times while she was still in her car. The Court of Appeals found that "[a]n assault by an armed assailant upon the driver of a car is not the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle."

Finally, in Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 367 N.W.2d 388 (1985), a man and his wife were followed home by robbers. Before they could get out of their car, the robbers approached them and shot the man while he still sat in the car. The Court of Appeals found that his death did not arise out of the use of his vehicle as a motor vehicle.

This decision denying coverage, along with the others, makes sense in light of the fact that

[a]utomobile insurance spreads the risk of damages from automobile accidents among the insured population. The limitation on liability to damages "resulting from the ownership, maintenance or use of a covered auto" ensures that the risk spread is the risk of automobile accidents, and not all accidents, or more accurately, accidents, to which an automobile can be tied, however remotely. [Aetna Casualty & Surety Co. v. United States Fidelity & Guaranty Co., 806 F.2d 302, 303 (C.A. 1, 1986).]

In the present case, plaintiff's injuries did not arise out of the use of his vehicle as a motor vehicle. ³ The carjacker simply struck plaintiff. Hence, plaintiff's vehicle was at best the situs of the injury, which is not a sufficient condition to establish the requisite causal connection between the injury and the vehicle. Shinabarger v. Citizens Mut. Ins. Co., 90 Mich.App. 307, 314, 282 N.W.2d 301 (1979).

The Court of Appeals, however, did find this connection and cited Gajewski v. Auto-Owners Ins. Co., 414 Mich. 968, 326 N.W.2d 825 (1982), for support. In that case, an incendiary device was attached to the ignition of the plaintiff's car. Unfortunately, the device exploded when the plaintiff attempted to start his car by turning on the ignition. This...