O'Key v. State Farm Mut. Auto. Ins. Co., Docket No. 78-507

• Decision Date: 16 April 1979
• Docket Number: Docket No. 78-507
• Parties: Leonard B. O'KEY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 583

280 N.W.2d 583

89 Mich.App. 526

Leonard B. O'KEY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign

Corporation, Defendant-Appellee.

Docket No. 78-507.

Court of Appeals of Michigan.

April 16, 1979.

Released for Publication July 12, 1979.

Leave to Appeal Denied July 26, 1979.

Levine & Benjamin, P. C., by Marc J. Sussman, Pontiac, for plaintiff-appellant.

John A. Ashton, Plymouth, for defendant-appellee.

Before CYNAR, P. J., and HOLBROOK and RILEY, JJ.

CYNAR, Judge.

Plaintiff appeals as of right from a summary judgment of no cause of action in an action to recover no-fault insurance benefits from defendant.

The facts were stipulated to by the parties hereto to serve as a basis for plaintiff's and defendant's motions for summary judgment. The plaintiff was sitting in his car in front of his brother's home, waiting for his brother. The car engine was running and the gear shift lever was in park. He suddenly saw an individual open the passenger door, point a gun in his direction, and mumble something like "let's go home". At this point he put the car in reverse and accelerated. The assailant fired two or three shots into the car and continued firing outside of the car as he was thrown away from the vehicle by its backward movement. One of the bullets struck the plaintiff in the hip, requiring hospitalization.

As a result of the gunshot wound, plaintiff incurred hospital expenses and loss of wages. He filed a claim with defendant, his no-fault insurer, for the sum of $5,774.50, but defendant refused to pay. After plaintiff commenced this action, defendant's motion for summary judgment was granted on the ground that the injury did not arise out of the ownership, operation, maintenance or use of a motor vehicle.

Plaintiff initially contends that the absence of an express policy exception to personal protection insurance coverage under the facts at bar requires a finding that coverage was provided by the policy.

We disagree. An insurer is under no duty to specify every conceivable fact situation where coverage will not be provided. Rather, it is free to indicate, in clear and understandable language, a general class of risks which are covered by the policy.

A reading of the policy indicates that it was intended to cover injuries "caused by accident and arising out of the ownership, operation and maintenance or use, including loading or unloading, of a motor vehicle as a motor vehicle". This language is virtually identical to that of M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), ¹ which sets forth the extent of required coverage in a policy providing personal protection insurance. The scope of coverage is clearly and unambiguously set forth in the policy. Therefore, it should be interpreted according to the plain meaning of the words used. Garrison v. Farm Bureau Mutual Ins. Co., 84 Mich.App. 734, 736, 270 N.W.2d 678 (1978). Sturgis National Bank v. Maryland Casualty Co., 252 Mich. 426, 429, 233 N.W. 367 (1930).

Plaintiff next contends that under the terms of the coverage provided by the policy, he was entitled to recover personal protection benefits. In order to prevail on this argument, plaintiff must establish (1) that the injury arose from an accident and (2) that the injury arose out of the ownership, operation, maintenance, or use of the motor vehicle.

We agree with plaintiff's contention that the injury in this case arose out of an "accident". In State Farm Mutual Automobile Ins. Co. v. Coon, 46 Mich.App. 503, 506, 208 N.W.2d 532, 533 (1973), a panel of this Court examined prior Michigan case law and concluded that an accident is "an event which under the circumstances is unusual And not expected to the person to whom it happened ". (Emphasis in 46 Mich.App.)

Applying this definition to the facts at bar conclusively establishes that plaintiff's injury arose out of an accident. The appearance of an unknown, armed assailant is without a doubt "unusual" and cannot be said to have been "expected". Since the question of whether an injury arose out of an accident is to be determined from the point of view of the injured person, Coon, supra, pp. 505-506, 208 N.W.2d 532, it is irrelevant that the gunman acted intentionally in inflicting the injury.

It...