Kreager v. State Farm Mut. Auto. Ins. Co., No. 133800

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: CORRIGAN
• Citation: 197 Mich.App. 577,496 N.W.2d 346
• Docket Number: No. 133800
• Decision Date: 21 December 1992
• Parties: Phillip Henry KREAGER, Plaintiff/Counter-Defendant-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Counter-Plaintiff-Appellee.

Page 346

496 N.W.2d 346 197 Mich.App. 577 Phillip Henry KREAGER, Plaintiff/Counter-Defendant-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant/Counter-Plaintiff-Appellee. No. 133800. Court of Appeals of Michigan. Submitted Dec. 3, 1992, at Detroit.
Decided Dec. 21, 1992, at 10:05 a.m.
Released for Publication March 18, 1993.

Page 347

[197 Mich.App. 578] Logeman, Connors & Bredell, P.C. by Timothy P. Connors, Ypsilanti, for plaintiff.

Romain, Donofrio, Kuck & Egerer, P.C. by Ernst W. Kuck and Nicholas S. Andrews, Southfield, for defendant.

Before CORRIGAN, P.J., and WEAVER and CONNOR, JJ.

CORRIGAN, Presiding Judge.

In this action for no-fault personal injury protection (PIP) benefits, plaintiff appeals as of right from the trial court's grant of summary disposition to defendant pursuant to MCR 2.116(C)(10). The trial court did not rule on defendant's declaratory judgment action (which was consolidated with plaintiff's suit) to determine if plaintiff is entitled to uninsured motorist benefits. We affirm as to the PIP claim and remand with instructions that declaratory judgment be granted to defendant on the uninsured motorist claim.

Plaintiff had stopped his car at an intersection when he felt something hit the rear of the vehicle. He put the transmission in "park" and got out. He found that his car had been struck by a bottle that apparently had been thrown from the car behind him. That vehicle was occupied by several young [197 Mich.App. 579] men. He picked up the bottle and threw it back at the car behind him. The car then accelerated and passed him on the right. As it drove by, one of the occupants fired five shots at plaintiff, who was standing outside the car on the driver's side. One shot struck and injured plaintiff.

Defendant subsequently denied plaintiff's claim for PIP benefits and benefits under the uninsured motorist provisions for this crime.

Payment of PIP benefits is governed by M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), which 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, subject to the provisions of this chapter. [Emphasis supplied.]

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Michigan State AFL-CIO v. Civil Service Comm., 191 Mich.App. 535, 546-547, 478 N.W.2d 722 (1991); Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 139, 445 N.W.2d 795 (1989).

This case is controlled by Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986), and its progeny. In Thornton, our Supreme Court held that a taxicab driver was not entitled to PIP benefits when he was injured during an assault and robbery that occurred in the cab. The Court held:

In drafting MCL 500.3105(1); MSA 24.13105(1), [197 Mich.App. 580] the Legislature limited no-fault PIP benefits to injuries arising out of the "use of a motor vehicle as a motor vehicle." In our view, this language shows that the Legislature was aware of the causation dispute and chose to provide coverage only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for." The involvement of the car in the injury should be "directly related to its character as a motor vehicle." Miller v. Auto-Owners [Ins. Co., 411 Mich. 633, 638-639, 309 N.W.2d 544 (1981) ]. Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle. Without a relation that is more than "but for," incidental, or fortuitous, there can be no recovery of PIP benefits. [Id. at 659-660, 309 N.W.2d 544.]

Page 348

The Court then concluded that "[t]he motor vehicle was not the instrumentality of the injuries." Id. at 660, 309 N.W.2d 544.

This case is also analogous to and controlled by Auto-Owners Ins. Co. v. Rucker, 188 Mich.App. 125, 127, 469 N.W.2d 1 (1991) ("drive-by" shooting not covered as "not identified with the normal use of a motor vehicle"); see also Jones v. Allstate Ins. Co., 161 Mich.App. 450, 455, 411 N.W.2d 457 (1987) (reviewing cases holding that armed...