Bradley v. Detroit Auto. Inter-Insurance Exchange, INTER-INSURANCE
| Decision Date | 20 January 1984 |
| Docket Number | INTER-INSURANCE,Docket No. 63539 |
| Citation | 130 Mich.App. 34,343 N.W.2d 506 |
| Parties | Charles L. BRADLEY, Plaintiff-Appellee, v. DETROIT AUTOMOBILEEXCHANGE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Sinas, Dramis, Brake, Boughton, McIntyre and Reisig, P.C. by George T. Sinas, Lansing, for plaintiff-appellee.
Gromek, Bendure & Thomas by Nancy L. Bosh, Detroit, for defendant-appellant.
Before KELLY, P.J., and GRIBBS and TAHVONEN, * JJ.
Charles L. Bradley brought this suit against Detroit Automobile Inter-Insurance Exchange (DAIIE) to recover personal injury protection benefits pursuant to M.C.L. § 500.3105(1); M.S.A. § 24.13105 under a policy of no-fault insurance on his wife's vehicle. Bradley's injuries were sustained in an accident involving his motorcycle, which was not covered by no-fault insurance. Before trial, he moved for partial summary judgment on the issue of liability. The trial court granted the motion, and the defendant appeals of right.
On May 24, 1979, at approximately 3:00 a.m. and shortly after plaintiff had finished work at the Fisher Body Division of General Motors in Lansing, the plaintiff mounted his 550 Honda motorcycle to go home. After going through the open gates of the plant, he drove through the green light at Michigan Avenue and Hungerford Street just past the gate, then on across Michigan Avenue, and headed southbound on Hungerford. Hungerford is a one-way street three lanes wide. The plaintiff attested that he proceeded in the far left-hand lane and that there was a vehicle in the center lane to his immediate right as well as "a flow of traffic" behind him. Bradley was travelling between 30 and 35 m.p.h. and had his headlight on, with the beam shining approximately 30 feet in front of him. He remained in the outer left-hand lane until the accident.
As Bradley crossed Michigan Avenue, there was a light-colored car driving next to him in the center lane. His motorcycle was even with the rear quarter panel of the car, the front of the car being about five feet in front of the motorcycle. The vehicle, it was later discovered, was a Subaru driven by Harold Tefft. As he headed southward on Hungerford between Washtenaw and Kalamazoo Avenues, the plaintiff noticed a "shadow" ahead in the left-hand lane. He did not recall how far from the "shadow" he was when he first noticed it. Upon seeing the shadow, he wanted to move into the center lane, but was prevented from doing so by the position of Tefft's vehicle. At this point, the plaintiff is not sure whether he sped up or slowed down, or in which order he did so. He did state after the accident that when he attempted to speed up, the car next to him did likewise, whereupon the plaintiff slowed down to try and switch lanes behind Tefft. Bradley attested:
Bradley ran into the back of a parked pickup truck which was in the left-hand lane on Hungerford. He fractured his left femur, requiring surgery and the use of two metal plates and pins. He also fractured and dislocated his left elbow and right wrist, broke his right thumb and left forearm, and cracked his left kneecap. His injuries have necessitated multiple surgery.
Bradley never applied his brakes nor used his horn. Theron Fraser stated upon deposition that the plaintiff told him the car on his right was a Gremlin and that "some foreman down there ran him off the road and that he knew the foreman". The plaintiff denied that he ever stated the car was a Gremlin or that he knew who the other driver was. And while he believes Tefft sped up, the plaintiff did not feel this was intentional. There was also no contact made between the plaintiff's motorcycle and Tefft's automobile; the plaintiff was simply prevented from changing lanes.
Harold Tefft was also deposed and stated his recollection of the incident. He exited from the Fisher Body plant at Hungerford and Michigan and continued southbound in the center lane on Hungerford. Tefft recalled that the plaintiff's motorcycle was behind him in the center lane before they crossed Michigan Avenue. Bradley followed Tefft in the center lane until they reached the second block, when Bradley pulled out and proceeded in the left-hand lane. Bradley gradually caught up to Tefft, and drove next to Tefft for approximately 200 feet until the middle of the block, where the accident occurred. The plaintiff never passed Tefft so that Tefft's headlights shone on the plaintiff, but rather remained to his immediate left. At the time Tefft heard the crash, he was beyond the pickup, but he could see the impact of the vehicle "on the side of [his] vision." Tefft further stated that:
Tefft did not see the pickup truck before the accident.
A hearing on Bradley's motion for partial summary judgment was held on March 11, 1981, and summary judgment was granted on October 2, 1981. Attorney fees pursuant to M.C.L. § 500.3148; M.S.A. § 24.13148 and interest pursuant to M.C.L. § 500.3142; M.S.A. § 24.13142 and M.C.L. § 600.6013; M.S.A. § 27A.6013 were awarded the plaintiff. DAIIE appeals the grant of summary judgment and the award of attorney fees and interest.
M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) provides in pertinent part:
"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."
In Kangas v. Aetna Casualty & Surety Ins., 64 Mich.App. 1, 13, 235 N.W.2d 42 (1975), the Court cited with approval the following language:
In subsequent cases, it has been held that use of the vehicle need only be one of the causes of injury, even though there may be an independent cause, Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 313, 282 N.W.2d 301 (1979), and that actual contact with the motor vehicle is not required, Bromley v. Citizens Ins. Co. of America, 113 Mich.App. 131, 135, 317 N.W.2d 318 (1982). Indeed, Shinabarger quoted language from other jurisdictions to the effect that "almost any causal connection or relationship will do". 90 Mich.App. 314, 282 N.W.2d 301.
In the instant case, it could be argued that Tefft's motor vehicle did not cause the plaintiff to take action that resulted in his injury. Rather, the motor vehicle prevented the plaintiff from avoiding the accident. In this sense, it could be arguably concluded that Bradley's injuries did not arise from the use of an automobile and that any object could have prevented him from switching lanes. Therefore, the fact that it was a motor vehicle was merely fortuitous. See Peck v. Auto-Owners Ins. Co., 112 Mich.App. 329, 315 N.W.2d 586 (1982). 1 We believe, however, that a causal connection between the use of a motor vehicle and the plaintiff's injuries was established.
In Kangas, supra, the Court used the phrases "incident to", "flowing from", and "having connection with" the use of a motor vehicle. Moreover, causation has been couched in terms of the injury being " 'foreseeably identifiable' with the normal use of a motor vehicle". Peck, supra, p. 334, 315 N.W.2d 586. In fact, Peck seems to turn on the fact that flight from police was not intended to fall within "normal use". In the instant case, though, the plaintiff was in the left-hand lane to pass a motor vehicle. Moreover, the plaintiff was forced to temper his actions once he spotted the parked pickup truck in view of the fact that a car was in the lane to his immediate right. Tefft's vehicle was positioned next to the plaintiff because Tefft was proceeding in a manner foreseeably identifiable with the normal use of an automobile. This is not a case where injuries arose from a "non-normal" use of a motor vehicle. Indeed, Bradley's injuries arose from the normal perils of driving in traffic.
The plaintiff was uncertain whether he first sped up or slowed down in order to switch lanes. This is not material in our view. The normal use of a motor vehicle, i.e., driving side by side with another vehicle, caused the plaintiff to react. Further, Bradley stated that he looked over his shoulder to see if he could switch lanes. It caused him to lose valuable time. Were Tefft's vehicle not in the position it was, the plaintiff would not have had to hesitate and look over his shoulder to see if he could switch lanes. And because Tefft's vehicle was proceeding normally...
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