Marzonie v. Auto Club Ins. Ass'n
| Decision Date | 30 December 1992 |
| Docket Number | No. 93152,93152 |
| Citation | 441 Mich. 522,495 N.W.2d 788 |
| Parties | Michael W. MARZONIE, II, Plaintiff-Appellee, v. AUTO CLUB INSURANCE ASSOCIATION, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Edwin W. Jakeway, P.C. by Edwin W. Jakeway and Michael J. Kelly, Grand Blanc, for plaintiff.
Gault, Davison, Bowers, Hill, Parker & McAra by Edward B. Davison, Flint; Gross & Nemeth (James G. Gross, of counsel), Detroit, for defendant.
The plaintiff was shot while occupying a motor vehicle. The circuit court awarded personal protection insurance benefits, and the Court of Appeals affirmed. 193 Mich.App. 332, 483 N.W.2d 413 (1992). Because the plaintiff's injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, we reverse the judgments of the circuit court and the Court of Appeals, and we remand this case to the circuit court for entry of a judgment in favor of the defendant.
As the plaintiff and a passenger were driving home from a party, they became embroiled in a dispute with three occupants of a vehicle driven by Vernon Oaks. After words were exchanged, the plaintiff began to pursue the Oaks vehicle at a high rate of speed. As the plaintiff drove, his passenger threw beer bottles at the Oaks vehicle.
Mr. Oaks drove home, where he and his friends went inside. Moments later, he emerged, alone, bearing a shotgun.
Meantime, the plaintiff and his passenger arrived in their car and stopped near the Oaks home. The passenger said that the plaintiff did not move his car forward when he saw Mr. Oaks emerge from his house with a shotgun. 1 However, Mr. Oaks said that the car was moving slowly toward him:
As the car continued "at a real slight creep," Mr. Oaks tried to fire a shot at the car. Nothing happened when he pulled the trigger, however, so he "reracked the gun," aimed toward the grill of the car, and fired again. Mr. Oaks later explained that he had intended to stop the car, not shoot the driver.
It appeared to Mr. Oaks that he had missed the plaintiff's car completely. In fact, he had shot the plaintiff in the face and neck, inflicting permanent and serious injury. 2
An instant after the shooting, the plaintiff's car began backing up. Traveling in reverse, it soon hit a curb, and the passenger noticed that the plaintiff was unconscious. Taking the wheel, the passenger drove him to the hospital.
As the plaintiff's car was driving away, Mr. Oaks attempted a third time to fire a shot, but again his gun would not discharge. He tried a fourth time, and the gun fired. The plaintiff says that this shot hit the fleeing car.
Mr. Oaks testified that he initially had fired in order to stop the plaintiff's car and because he was angry at the plaintiff's presence. Asked why he shot at the escaping car, he said that he was upset and wanted to stop the car. Mr. Oaks explained:
The plaintiff sought personal protection (first- insurance benefits from the insurer. 3 After the demand was refused, the plaintiff filed the present suit.
M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) 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."
In his complaint, the plaintiff alleged that his injuries arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. The defendant insurer denied the allegation, and later moved for summary disposition. In an order denying the defendant's motion, the circuit court explained:
"The court finds that the case of Jones v. Allstate Ins Co, 161 Mich App 450 (1987), is controlling and that it is necessary that a jury determine the factual issue of whether the assailant, Vernon Oaks, intended to shoot either plaintiff Marzonie or Marzonie's car."
This matter was tried before a jury. In accordance with the court's earlier ruling, the sole question submitted to the jury was whether Mr. Oaks intended to shoot the plaintiff, or only to shoot the plaintiff's vehicle. After deliberating less than half an hour, the jury returned its finding that "Vernon Oaks intended to shoot only the automobile of Michael Marzonie...."
Had the jury found that Mr. Oaks intended to shoot the plaintiff, judgment would have been entered for the defendant. When the jury instead found that Mr. Oaks intended to shoot the plaintiff's car, the circuit court was prepared to enter judgment in favor of the plaintiff. Before entry of judgment for the plaintiff, the defendant moved unsuccessfully for entry of a judgment in its favor or, alternatively, for a new trial. The motion was denied.
The Court of Appeals affirmed. Citing Jones, and saying that because the plaintiff's injuries "stemmed from the functional character of the motor vehicle," the Court of Appeals concluded that the plaintiff was entitled to first-party benefits. 193 Mich.App. at 337, 483 N.W.2d 413.
Writing in dissent, Judge MacKenzie said that "plaintiff was injured as a result of his dispute with Oaks, and plaintiff's automobile merely served as the target of Oaks' gunfire and the situs where plaintiff was shot." Id. at 339, 483 N.W.2d 413.
The defendant has applied for leave to appeal the judgment of the Court of Appeals.
Throughout the time that no-fault automobile insurance has existed in Michigan, cases have arisen involving insured persons who were shot or otherwise assaulted while occupying motor vehicles. The basic rule, correctly developed by the Court of Appeals, is stated in O'Key v. State Farm Mut. Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979). There, the plaintiff was sitting in his parked car, which was idling. An individual opened the passenger door and pointed a gun at him. The plaintiff put the car in reverse, and accelerated. The assailant fired two or three shots into the car, striking the plaintiff.
The Court of Appeals found in O'Key that the plaintiff's injury did not arise out of the ownership, operation, maintenance, or use of an automobile:
89 Mich.App. at 530, 280 N.W.2d 583.
This Court addressed a similar situation in Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986). The plaintiff...
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