Kennedy v. Auto Club of Michigan, Docket No. 185157

• Decision Date: 30 January 1996
• Docket Number: Docket No. 185157
• Citation: 544 N.W.2d 750,215 Mich.App. 264
• Parties: Marquis A. KENNEDY, Plaintiff-Appellee, v. AUTO CLUB OF MICHIGAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 750

544 N.W.2d 750

215 Mich.App. 264

Marquis A. KENNEDY, Plaintiff-Appellee, v. AUTO CLUB OF MICHIGAN, Defendant-Appellant.

Docket No. 185157.

Court of Appeals of Michigan.

Submitted Jan. 17, 1996, at Detroit.

Decided Jan. 30, 1996, at 9:00 a.m.

Released for Publication March 19, 1996.

Galbraith & Booms by Steven B. Galbraith and Laura A. Phillips, Southfield, for plaintiff.

Becker, Lanctot, McCutcheon, Schoolmaster, Taylor & Hom by Marvin W. Smith, Detroit (Gross, Nemeth & Silverman, P.L.C. by Steven G. Silverman, of counsel), Detroit, for defendant.

Before CORRIGAN, P.J., and MARK J. CAVANAGH and RICHARD ALLEN GRIFFIN, JJ.

RICHARD ALLEN GRIFFIN, Judge.

In this first-party no-fault insurance case, defendant appeals as of right an order of the lower court granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). We reverse and remand for entry of judgment in favor of defendant.

Plaintiff was a passenger in a motor vehicle that was traveling on a highway near downtown Detroit when the rear window of the car shattered and plaintiff was struck in the right temple by an unknown object. The source of the projectile was never determined. Physicians diagnosed plaintiff's injury as a possible gunshot wound. Plaintiff is now legally blind in his right eye.

After defendant refused to pay no-fault personal protection insurance benefits, plaintiff commenced this action. The lower court denied defendant's motion for summary disposition, which was brought on the ground that plaintiff's injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle as covered by the automobile insurance policy. Instead, the circuit court granted summary disposition in plaintiff's favor.

We review the trial court's ruling on a motion for summary disposition de novo to determine whether the pleadings or the uncontroverted documentary evidence established that a party is entitled to judgment as a matter of law. MCR 2.116(I)(1); Asher v. Exxon Co., USA, 200 Mich.App. 635, 638, 504 N.W.2d 728 (1993). The existence of either circumstance merits a grant of summary disposition. Id.

Michigan's no-fault insurance act requires a no-fault insurer to pay benefits "for accidental 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).

In Thornton v. Allstate Ins. Co., 425 Mich. 643, 659-660, 391 N.W.2d 320 (1986), our Supreme Court construed M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) to mean that the mere involvement of an automobile in an injury is not alone sufficient to invoke no-fault coverage. Instead, our Supreme Court in Thornton held that the Legislature chose to provide coverage only for those circumstances where the injury was "directly related" to the involved automobile's character as a motor vehicle. Id. at 659, 391 N.W.2d 320. The Supreme Court emphasized that there must be more than a "but for," incidental, or fortuitous connection between the damages sustained and the use of a motor vehicle. Id. at 659-660, 391 N.W.2d 320. This rationale was reaffirmed in Bourne v. Farmers Ins. Exchange, 449 Mich. 193, 195-196, 198, 534 N.W.2d 491 (1995), where the Supreme Court held that a no-fault insurance carrier is not obligated to cover injuries received during an assault incident to a "carjacking." In Bourne, the Court concluded that such injuries were unrelated to the use of a motor vehicle as a motor vehicle. Id. at 200, 534 N.W.2d 491; see also Marzonie v. Auto Club Ins. Ass'n, 441 Mich. 522, 495 N.W.2d 788 (1992). Further, in Mueller v. Auto Club Ins. Ass'n, 203 Mich.App. 86, 91, 512 N.W.2d 46 (1993), this Court held that the risk of a stray bullet passing through an automobile is not within the ordinary risks of driving a motor vehicle.

Here, the vehicle was not the instrumentality of the injury, Thornton, supra at 660, 391 N.W.2d 320, nor was the injury caused by the inherent nature of driving an automobile. Id. at 661, 391 N.W.2d 320. See also Century Mutual Ins. Co. v. League General Ins. Co., 213 Mich.App. 114, 541 N.W.2d 272 (1995), and Wakefield Leasing Corp. v. Transamerica Ins. Co., 213 Mich.App. 123, 539 N.W.2d 542 (1995). Instead, plaintiff's injury was the result of an intentional, reckless, or negligent act where an unknown assailant either shot or threw an object through the rear window of the automobile in which plaintiff was traveling. Injuries resulting from this kind of conduct are not "within the ordinary risks of driving a motor vehicle." Marzonie, supra at 534, 495 N.W.2d 788. Rather, the relationship between the functional character of the motor vehicle and plaintiff's injury was "but for," incidental, and fortuitous. Bourne, supra at 200-201, 534 N.W.2d 491; Mueller, supra at 91, 512 N.W.2d 46. Accordingly, we conclude that the trial court erred in granting summary disposition in favor of plaintiff. Instead, the trial court should have granted summary disposition in favor of defendant.

We recognize that, in the past, this Court has held that no-fault coverage applies when the assailant who caused an injury targeted the vehicle, not the people inside the automobile. See Saunders v. DAIIE, 123 Mich.App. 570, 332 N.W.2d 613 (1983); Mann v. DAIIE, 111 Mich.App. 637, 314 N.W.2d 719 (1981). However, we reject the argument that Bourne and Thornton should be distinguished on the basis that the unknown assailant...