Koole v. Michigan Mut. Ins. Co.

• Decision Date: 12 August 1983
• Docket Number: Docket No. 59039
• Citation: 126 Mich.App. 483,337 N.W.2d 369
• Parties: Donald K. KOOLE, Plaintiff-Appellee, v. MICHIGAN MUTUAL INSURANCE CO., a Michigan Corporation, Defendant-Appellant, and Kalamazoo Plumbers and Steamfitters Insurance Fund Local 337, administered by Pension and Group Services Inc., a Michigan Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 369

337 N.W.2d 369

126 Mich.App. 483

Donald K. KOOLE, Plaintiff-Appellee, v. MICHIGAN MUTUAL INSURANCE CO., a Michigan Corporation Defendant-Appellant and Kalamazoo Plumbers and Steamfitters Insurance Fund Local 337, administered by Pension and Group Services Inc., a Michigan Corporation, Defendant-Appellee.

Docket No. 59039.

Court of Appeals of Michigan.

Submitted June 29, 1982.

Decided June 21, 1983.

Released for Publication Aug. 11, 1983.

Rehearing Denied Aug. 12, 1983.

Lilly & Domney, P.C. by Joseph A. Byrne, Jr., Kalamazoo, for Michigan Mut. Ins. Co.

Early, Starbuck & Lennon by Harold E. Fischer, Jr., Kalamazoo, for Kalamazoo Plumbers & Steamfitters Ins. Fund, Local # 337.

Before KELLY, P.J., and MAHER and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

The issue in this case is simply whether plaintiff is entitled to first party no-fault benefits from his insurer, Michigan Mutual. The trial court found that he was and granted him summary judgment. Michigan Mutual appeals as of right. We affirm.

The parties have stipulated to the facts. On October 25-26, 1979, plaintiff was driving his pickup truck. The truck had an attached camper. Plaintiff pulled into a rest area, went into the camper and went to sleep. When he awoke the next day, he lit a match. Gas escaping from the camper furnace pilot light ignited, injuring him.

To recover first party benefits a no-fault claimant must prove "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; M.S.A. § 24.13105. The injury "does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle" unless, inter alia, the "injury was sustained by a person while occupying * * * the vehicle". Formerly M.C.L. § 500.3106(c); M.S.A. § 24.13106(c), amended by 1971 P.A. 209, now M.C.L. § 500.3106(1)(c); M.S.A. § 24.13106(1)(c). The Supreme Court has noted that:

"The underlying policy of the parking exclusion is that * * * a parked car is not involved in an accident as a motor vehicle. It is therefore inappropriate to compensate injuries arising from its non-vehicular involvement in an accident within a system designed to compensate injuries involving motor vehicles as motor vehicles." Miller v. Auto-Owners Ins. Co., 411 Mich. 633, 641, 309 N.W.2d 544 (1981), (emphasis in the original).

The three statutory exceptions to the parked car exclusion pertain to "injuries related to the character of a parked vehicle as a motor vehicle--characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents". 411 Mich. 640, 309 N.W.2d 544.

In this case, the stipulated statement of facts establishes that the injuries for which benefits are sought were sustained by the claimant while occupying a motor vehicle. The plaintiff therefore falls within the third exception to the § 3106 parked car exclusion and is not barred from recovery by that provision.

This finding--that recovery is not precluded by § 3106--does not end our inquiry. For it is also necessary that the claimant establish that the injuries arose out of the "ownership, operation, maintenance or use of a motor vehicle as a motor vehicle". Section 3105. As Judge Maher pointed out in Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 315, 282 N.W.2d 301 (1979);

"[F]ulfillment of the requirements of § 3106 does not automatically result in liability. Even after the threshold of § 3106 is crossed, it must still be established that the injury arose out of the ownership, operation, maintenance or use of the motor vehicle."

The leading Michigan case addressing the nature of the causal relationship necessary between the use of a motor vehicle and injuries is Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 235 N.W.2d 42 (1975). In that case, coverage was sought for injuries to a pedestrian who was assaulted by occupants of the insured vehicle. The policy provided liability coverage for bodily injury sustained by any person "arising out of the ownership, maintenance or use of the owned automobile". In construing the scope of coverage afforded in light of the quoted language, this Court had occasion to canvas decisions from at least 18 other jurisdictions. At the end of that review, the Kangas panel noted:

"In summary, we 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." Kangas, supra, p. 17, 235 N.W.2d 42.

A wealth of subsequent case law has utilized this language from Kangas in discussing the nature of the relationship between the vehicle and injury required by § 3105.

For example, benefits have been denied where the vehicle merely happened to be the site of an assault that could as well have occurred elsewhere. O'Key v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979); Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979); DAIIE v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980); Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 308 N.W.2d 661 (1981); A & G Associates, Inc. v. Michigan Mutual Ins. Co., 110 Mich.App. 293, 312 N.W.2d 235 (1981). Compare Mann v. DAIIE, 111 Mich.App. 637, 314 N.W.2d 719 (1981) (rock dropped or thrown off overpass onto plaintiff's vehicle injuring him as he was driving on Detroit expressway; benefits allowed). Likewise, benefits have been denied where the involvement of the...