Gajewski v. Auto Owners Ins. Co.

• Decision Date: 28 January 1982
• Docket Number: Docket No. 52220
• Citation: 314 N.W.2d 799,112 Mich.App. 59
• Parties: Michael GAJEWSKI, Plaintiff-Appellee, v. AUTO OWNERS INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 799

314 N.W.2d 799

112 Mich.App. 59

Michael GAJEWSKI, Plaintiff-Appellee, v. AUTO OWNERS INSURANCE COMPANY, Defendant-Appellant.

Docket No. 52220.

Court of Appeals of Michigan.

Submitted Oct. 13, 1981.

Decided Dec. 16, 1981.

Released for Publication Jan. 28, 1982.

Rowe, Talon & Jones, P. C., Belleville, for plaintiff-appellee.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P. C., Detroit, for defendant-appellant.

Before KAUFMAN, P. J., and J. H. GILLIS and CYNAR, JJ.

PER CURIAM.

Defendant appeals as of right from the trial court's order granting summary judgment in favor of plaintiff. On July 18, 1976, when plaintiff got into his vehicle and turned the ignition key, an explosive device which had been attached to the ignition mechanism by persons unknown was detonated, severely injuring plaintiff. The trial court concluded that plaintiff's injury occurred as a result of his operation of the vehicle and that he therefore was entitled to benefits as a matter of law pursuant to § 3105 of the no-fault act.

M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) provides:

"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 * * *."

Cases construing the phrase "arising out of the * * * use of a motor vehicle" uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. Detroit Automobile Inter-Ins Exchange v. Higginbotham, 95 Mich.App. 213, 222, 290 N.W.2d 414 (1980), lv. den. 409 Mich. 919 (1980). Such causal connection must be more than incidental, fortuitous, or "but for". The injury must be foreseeably identifiable with the normal use, maintenance, and ownership of the vehicle. Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975). While the statute does not necessitate a finding that the injury was caused directly and proximately by the use of the vehicle, causation cannot be extended to something distinctly remote. The sufficiency of the causal connection depends on the facts of each case. Williams v. Citizens Mutual Ins. Co. of America, 94 Mich.App. 762, 764-765, 290 N.W.2d 76 (1980).

These principles have been applied by several panels of this Court to deny recovery of no-fault benefits to the victim of an assault which occurred in or near an automobile. See A & G Associates, Inc. v. Michigan Mutual Ins. Co., 110 Mich.App. 293, 312 N.W.2d 235 (1981); Higginbotham, supra; Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979); O'Key v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979); and Kangas, supra.

We believe that there was an insufficient causal relationship between plaintiff's use of the vehicle and his injuries. The fact that the explosive device was set in plaintiff's vehicle rather than some other location was a mere fortuity. Even though plaintiff's act of turning the ignition key detonated the explosion, the explosive device, rather than the automobile, was the true instrumentality of the injury. The injury clearly was not foreseeably identifiable with the normal use, maintenance, and ownership of the vehicle. Kangas, supra; Higginbotham, supra.

The order of summary judgment in favor of plaintiff is reversed, and summary judgment is entered in favor of defendant.

Reversed.

CYNAR, Judge (dissenting).

I agree with the trial court that there was a sufficient causal relationship between plaintiff's use of the vehicle and his injuries. This case is distinguishable from the cases in which benefits were denied because the plaintiff...