Jones v. Allstate Ins. Co.

• Decision Date: 21 September 1987
• Docket Number: Docket No. 83689
• Citation: 161 Mich.App. 450,411 N.W.2d 457
• Parties: Raynard JONES, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 457

411 N.W.2d 457

161 Mich.App. 450

Raynard JONES, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 83689.

Court of Appeals of Michigan.

Submitted April 8, 1986.

Decided April 23, 1987.

Released for Publication Sept. 18, 1987.

Leave to Appeal Dismissed Sept. 21, 1987.

Norman N. Gottlieb, P.C. by Norman N. Gottlieb, Flint, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Steven P. Iamarino and William J. Brickley, Flint, for defendant-appellee.

Before GRIBBS, P.J., and BRONSON and STEPHENS, ^* JJ.

PER CURIAM.

Plaintiff Raynard Jones appeals from the Genesee Circuit Court's order of March 1, 1985, denying his motion for reconsideration of the court's order granting summary judgment to defendant Allstate Insurance Company. We reverse.

Plaintiff alleged that on January 12, 1983, he was occupying his father's 1974 Plymouth, which was insured by defendant. According to plaintiff's complaint, Ronald Thompson discharged a firearm into the driver's side of the vehicle, causing plaintiff to suffer serious personal injuries.

Defendant moved for summary judgment, contending that plaintiff's injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle, as required by M.C.L. Sec. 500.3105(1); M.S.A. Sec. 24.13105(1). Defendant relied upon the affidavit of Roy Yingling, which reads as follows:

"I, Roy Yingling, being duly sworn, depose and say:

"1. That I am the claims representative assigned to handle the claim made by Plaintiff, Raynard Jones, for personal protection insurance benefits.

"2. That I am fully aware of the facts and circumstances surrounding the subject incident, and that I have conducted a full and reasonable investigation of same.

"3. That I am aware of no facts or allegations which make the subject insured vehicle anything more than the situs of the incident, and in no way is the subject vehicle implicated as an instrumentality of the harm alleged by Plaintiff Jones.

"4. That pursuant to the allegedly applicable policy of automobile insurance, as it conforms to MCLA 500.3105(1), payments of personal protection insurance benefits are only to be made where an injury arises out of the 'use, operation, or maintenance of a motor vehicle'.

"5. That based upon my training and experience in the area of automobile accident claims adjustment, it was, and is, my considered opinion that no benefits are due and owing to Plaintiff Raynard Jones as a result of the subject January 12, 1983 shooting incident, for the specific reason that the involvement of a motor vehicle in that instance was merely fortuitous, and further, because of [sic] the insured automobile was clearly not an instrumentality of harm."

Plaintiff submitted the affidavit of David S. Grant, Jr., which reads as follows:

"I, DAVID S. GRANT, JR., being duly sworn, depose and say:

"1. That I am an attorney-at-law duly licensed to practice in the State of Michigan, County of Genesee.

"2. That I represented a certain Ron Thompson in a criminal action brought against him for a shooting incident that occurred in the City of Flint on or about the 12th day of January 1983.

"3. That I am fully aware of the facts and circumstances surrounding that incident, by virtue of my interviews with the client and my review of the investigation of the incident taken by the Detective Division of the Flint Police Department.

"4. That if called upon to testify, I will be competent to state under oath that Ron Thompson did not discharge his firearm at Raynard Jones, but rather at the vehicle in which Raynard Jones was sitting and that he shot at that vehicle because it had been driven upon his private property and that he resented the encroachment of the vehicle on his private property and that he fired upon said vehicle in anger while in an irrational state of mind." (Emphasis added.)

Plaintiff also submitted a police report of the incident, which stated, in pertinent part:

"At 11:42 PM, Wednesday, January 12, 1983, District 203, Officers Kenneth Sparks and Robert Studer, received a radio call from Officer Terrill Bravender, dispatcher, to 4533 Trumbull regarding a car hitting a house and someone being shot. On arrival, the officers found that the incident had taken place at 4529 Trumbull. The officers observed a 1974 Plymouth, Michigan license FXL 550, setting [sic] under the severely damaged northeast corner of the garage at that address. The auto appeared to have run through the wall and struck the chain link fence on the north side of the lot. There was a male/black subject, latter [sic] identified as the victim, Raynard Jones, m/b/20, 1379 E. Downey, who, according to Flint Fire Department Unit 1170, Paramedics Michael Murphy and Mark Warren, and Unit 161 personnel, David Wolfenden and Jack Smyth, appeared to have been shot in the left side. The officers were unable to talk to Jones as the Flint Fire Department paramedics were administering first aid to him. Jones was subsequently transported to Hurley Medical Center by Flint Fire Department Ambulance 161. At the hospital, he was examined by Dr. Tommie Stevens and Dr. Michael Macksood and was then transferred to Surgery. Officers Studer and Sparks were approached by one Ronald Thompson. Officer Studer asked Thompson if he had witnessed any part of the incident. Thompson said he had shot the gun (Jones), and that he (Thompson) was unsure of the name. Thompson told the man that he had the wrong house. Thompson said he then heard a car in his driveway with the horn blowing constantly. Thompson then opened the door and saw the 1974 Plymouth, FXL 550, containing a male/black subject. The man in the car was waving what looked to be a gun at him (Thompson). Thompson said he then grabbed his rifle, which was located just inside his front door, pointed it in the direction of the car and fired it once at the car. Thompson said he then saw the car go forward and then heard a loud crash. The officers obtained Thompson's I.D. Thompson invited the officers in to his house and pointed to the rifle, which was setting [sic] in the kitchen doorway against the wall. Thompson said he had used that rifle to shoot at the car. Sgt. Jerry Nugent arrived on the scene and advised the officers to take Thompson to the Criminal Investigations Bureau. Nugent then contacted the Patrol Desk and had Homicide Squad officers notified." (Emphasis added.)

A no-fault insurer must pay...