Denning v. Farm Bureau Ins. Group

• Decision Date: 06 February 1984
• Docket Number: Docket No. 67051
• Citation: 130 Mich.App. 777,344 N.W.2d 368
• Parties: Ruth DENNING, Plaintiff-Appellant, v. FARM BUREAU INSURANCE GROUP, a foreign corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 368

344 N.W.2d 368

130 Mich.App. 777

Ruth DENNING, Plaintiff-Appellant, v. FARM BUREAU INSURANCE GROUP, a foreign corporation,

Defendant-Appellee.

Docket No. 67051.

Court of Appeals of Michigan.

Submitted June 16, 1983.

Decided Dec. 5, 1983.

Released for Publication Feb. 6, 1984.

Rappleye, Wilkins & Arcaro by Viola A. Kaminski, Jackson, for plaintiff-appellant.

Douvan & Barnett by Gordon J. Barnett, Jr., Ann Arbor, for defendant-appellee.

Before KELLY, P.J., and SHEPHERD and COOPER, ^* JJ.

SHEPHERD, Judge.

Plaintiff sought to recover no-fault personal injury protection benefits (PIP) from defendant insurer following her husband's death in his automobile. M.C.L. § 500.3105; M.S.A. § 24.13105 provides that an insurer is liable to pay PIP benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. The trial court granted summary judgment in favor of defendant. The issue presented to this Court on appeal is whether death due to heart failure caused by inhalation of toxic fumes emitted by a herbicide being transported by plaintiff's decedent is compensable under the no-fault act.

A motion for summary judgment was filed and originally the trial court issued an opinion which stated:

"I find this to be a close case. There is no question but what the automobile was being used at the time to transport the weed killer which was inhaled. It is also foreseeable that an automobile would be used to transport weed killer. Therefore, looking at the facts in the light most favorable to plaintiff, the court is denying the motion for summary judgment."

Thereafter, a motion for reconsideration was filed and the court changed its opinion and decided to grant summary judgment in favor of defendant saying:

"Defendant's contention is correct that the standard to be used is the foreseeability of the injury with the normal use of the motor vehicle, and not the fact that is is foreseeable that an automobile would be used to transport weed killer. I also conclude that the court erred in denying the motion for summary judgment. It is quite clear, as I indicated in my previous opinion, that it is not uncommon to transport weed killer in a car, however, I am not convinced that the inhaling of the fumes from the weed killer which aggravated a preexisting condition resulting in death is foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. The fact that it occurred in the automobile was only incidental. The same injury could have occurred had plaintiff's deceased spouse inhaled the fumes in a closed building."

It is this last statement of the trial court on the motion for summary judgment which concerns us. For reasons stated herein, we find that we are unable to state as a matter of law that the same injury could have occurred had plaintiff's deceased spouse inhaled the fumes in a closed building. If the facts at trial establish that the injury could only have occurred within the type of closure that is found in an automobile, there would then be a sufficient relationship between the injury and the operation of an automobile to allow for recovery under the no-fault act. Since we believe that this issue requires factual development, we are reversing and remanding for a trial at which an issue will be whether the injury in this case could only have occurred inside an automobile. We also believe that there are other issues capable of factual development, i.e., whether the closure of the automobile as an automobile caused the decedent to be overcome or whether the movement of the vehicle caused the fumes to be emitted.

On March 29, 1981, plaintiff's now-deceased husband, Eugene Denning, was transporting herbicide in his automobile when he was overcome by toxic fumes emitted by the substance. His car left the road, struck a tree and turned over. Mr. Denning died not as the result of injuries sustained in the collision, however, but of arteriosclerotic cardiovascular disease, a pre-existing condition which was aggravated by his inhalation of the fumes. The trial court, in granting summary judgment in defendant's favor, determined that Mr. Denning's death was not foreseeably identifiable with, and therefore did not arise out of, the ownership, operation, maintenance or use of a motor vehicle.

An insured may recover PIP benefits only for "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle * * * ". M.C.L. § 500.3105(1); M.S.A. § 24.13105(1).

It is clear from the statutory language and from the cases discussed in this opinion that the Legislature did not intend all injuries occurring in a motor vehicle to be compensable. Had such an intention been present the statute could have provided for compensation for any injury which took place within an automobile. Instead, the Legislature chose to place limits on the coverage afforded by the no-fault law and the courts have been struggling with the task of defining the precise nature of those limits in the face of language which itself sheds little light on the true nature of the Legislature's intended limitations.

In Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), this Court construed the scope of the above statutory language: ¹

"[W]e conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."

The Kangas test has been frequently applied and interpreted by the courts of this state in determining whether the relationship between a vehicle and an injury is such that it meets § 3105 requirements. Before examining these cases, a closer analysis of Kangas is in order. There, an injury occurring during an altercation between the occupants of a motor vehicle and a pedestrian was not considered to be an injury which arose out of the ownership, use and operation of a motor vehicle. Kangas, at p. 13, 235 N.W.2d 42, cites with approval the following language from St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla.App.1973):

"His location in the automobile at the time of the occurrence was fortuitous, merely the situs of his physical being at the time."

The Kangas Court also cites Mason v. Celina Mutual Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967) (one passenger accidentally discharges pistol killing another; held, injury did not arise out of operation, maintenance or use of a motor vehicle). In the latter case, the court quoting 7 Appleman, Insurance Law and Practice, § 4317 at p. 146, said:

" 'The accident must have arisen out of the inherent nature of the automobile, as such' in order to bring one within the terms of such a policy."

Kangas thus appears to be saying that an injury is not compensable under language requiring that it arise out of the ownership, use and operation of a motor vehicle if the location of the injured party in the automobile was fortuitous and if the accident did not arise out of the inherent nature of an automobile as such.

Subsequent to Kangas, benefits have been denied in numerous assault cases on the basis that the vehicle merely happened to be the site of an assault that could as well have occurred elsewhere.

In these assault cases recovery has been denied in the following circumstances:

(a) assailant fires a gun into an automobile, Detroit Automobile Inter-Ins. Exchange v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980), and O'Key v State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979).

(b) pedestrian opened door of car and struck driver, Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979).

(c) cab driver assaults passenger, A & G Associates, Inc. v. Michigan Mutual Ins. Co., 110 Mich.App. 293, 312 N.W.2d 235 (1981).

However, in Mann v. Detroit Automobile Inter-Ins. Exchange, 111 Mich.App. 637, 314 N.W.2d 719 (1981), the Court granted recovery where an unidentified assailant dropped a rock from an expressway overpass onto plaintiff's vehicle. The Court allowed recovery saying:

"This type of assault is directed at the automobile itself, not the driver. It happens only because the automobile is passing under the overpass at the appointed time. There is a direct causal relationship between the driving of the vehicle and the assault. In this case, if the plaintiff had not been driving his automobile, he would not have been assaulted. Injuries sustained as a result of the assault, therefore, arise out of the operation and use of the motor vehicle as a motor vehicle." (Emphasis in original.) 111 Mich.App. 639-640, 314 N.W.2d 719.

Here, the Court is saying that the injury is compensable if it could only have occurred in an automobile. This appears to be a crucial factor upon which we will comment below.

In Smith v. Community Service Ins. Co., 114 Mich.App. 431, 319 N.W.2d 358 (1982), plaintiff was injured while riding on an inner tube being towed on a snow-covered road. The Court, at p. 435, in allowing coverage, held that "[a]n injury which directly results from the force of a motor vehicle which is being driven down a roadway in the normal manner is an injury which arises 'out of the * * * operation * * * or use of a motor vehicle * * * '. The trial court erred in granting summary judgment to the defendant". Here again, the Court is not looking to the normal operation of a motor vehicle since it concedes that it is not normal for an automobile to tow an inner tube. Nevertheless, since the injury occurred as the result of the force of a motor vehicle, the necessary causal connection was found as a matter of law.

This Court has not always made...