Kreager v. State Farm Mut. Auto. Ins. Co., 133800

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

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.

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 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), 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.]

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 assault is "generally not the type of conduct that is reasonably identifiable with the use of an automobile"). Generally, this Court has held that people assaulted in their automobiles cannot recover no-fault benefits. Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 333, 367 N.W.2d 388 (1985), and cases cited therein.

Plaintiff relies on cases like Saunders v. DAIIE, 123 Mich.App. 570, 572, 332 N.W.2d 613 (1983), that allow PIP coverage for assaults "directed at the automobile itself, rather than at the driver or passenger" (the plaintiff was struck by a projectile thrown through an open window of the vehicle). See also Marzonie v. Auto Club Ins. Ass'n, 193 Mich.App. 332, 483 N.W.2d 413 (1992). Plaintiff's reliance on this line of cases is unpersuasive. The assailant's use of the car "as a motor vehicle" and plaintiff's injuries were not connected. Plaintiff's assailant was apparently angered when plaintiff threw the bottle back and responded with gunfire. That inexcusable response was not related to the assailant's use of a motor vehicle "as a motor vehicle." The shots could just as readily have been fired from a building, a parked car, a bicycle, or by a pedestrian.

Because we find no coverage for the assault, we need not reach the question whether plaintiff's car was "parked" for purposes of applying M.C.L. § 500.3106; M.S.A. § 24.13106 or whether plaintiff was "occupying" it at the time of his injury. ¹

Plaintiff next argues that he is eligible for compensation under the uninsured motor vehicle coverage portion of defendant's policy. We disagree.

The relevant portions of the policy provide:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

Uninsured Motor Vehicle--means:

* * * * * *

2. a "hit-and-run" land motor vehicle whose owner or driver remains unknown and which strikes:

a. the insured ... and caused bodily injury to the insured.

The requirement in an uninsured motorist policy of "physical contact" between the allegedly uninsured vehicle that caused the accident and the plaintiff or the plaintiff's vehicle is enforceable in Michigan. See Auto Club Ins. Ass'n v. Methner, 127 Mich.App. 683, 687, 339 N.W.2d 234 (1983). Plaintiff relies on the criticism of Methner in Hill v. Citizens Ins. Co. of America, 157 Mich.App. 383, 403 N.W.2d 147 (1987), but that case is distinguishable. In Hill, the plaintiff's husband was killed by a "large rock" projected through the windshield by the wheels of a passing truck. The Court applied a broad construction of the "physical contact" requirement, see id. at 391, 403 N.W.2d 147, but nonetheless concluded that "[i]t is still necessary that the proofs establish a substantial physical nexus between the disappearing vehicle and the object cast off or struck." Id. at 394, 403 N.W.2d 147.

Plaintiff's case does not demonstrate "substantial physical nexus"...