Marzonie v. Auto Club Ins. Ass'n, Docket No. 123383
| Decision Date | 25 March 1992 |
| Docket Number | Docket No. 123383 |
| Citation | 483 N.W.2d 413,193 Mich.App. 332 |
| Parties | Michael W. MARZONIE, II, Plaintiff-Appellee, v. AUTO CLUB INSURANCE ASSOCIATION, and/or Automobile Club of Michigan, and/or Auto Club Casualty Insurance Company, and/or Auto Club Group Insurance Company, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Edwin W. Jakeway, P.C. by Edwin W. Jakeway and Michael J. Kelly, Grand Blanc, for plaintiff-appellee.
Gault, Davison, Bowers, Hill, Parker & McAra by Edward B. Davison, Flint (Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., by James G. Gross, of counsel), Detroit for defendant-appellant.
Before MARILYN J. KELLY, P.J., and MacKENZIE and GRIBBS, JJ.
The defendant insurer appeals as of right from a jury award of $42,875.42 for plaintiff representing first-party no-fault benefits. The sole issue on appeal is whether plaintiff's injuries fall within the statutory definition of those for which a no-fault insurer is liable. We find they do.
The facts of this case are that plaintiff became involved in a dispute as he drove home from a party. He and his passenger, Jeffrey Dingo, pursued another vehicle in a high speed chase while Dingo threw several beer bottles at it. The chase ended when the driver of the other vehicle, Vernon Oaks, reached his home.
Oaks ran into the house, brought out a 20-gauge pump shotgun, walked into the street and approached plaintiff's car which began "creeping" toward Oaks. Oaks testified that he aimed between the headlights of the car and fired in an attempt to disable the car. Although Oaks intended to strike the radiator, the shot struck plaintiff instead. In a separate criminal proceeding, Oaks pled guilty to careless discharge of a firearm.
Plaintiff sued defendant, his automobile insurer, when defendant refused to pay him no-fault benefits. Defendant's liability in this case hinges on the meaning of the language at M.C.L. § 500.3105(1); M.S.A. § 24.13105(1):
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.... [Emphasis added.]
Defendant argues that plaintiff did not sustain an injury arising out of the operation of a motor vehicle as a motor vehicle regardless of the intent of Vernon Oaks.
The same issue was addressed by this Court in Jones v. Allstate Ins. Co., 161 Mich.App. 450, 454-456, 411 N.W.2d 457 (1987). There, we stated:
In Thornton v. Allstate Ins. Co., 425 Mich. 643, 659-660, 391 N.W.2d 320 (1986), the Supreme Court noted:
An assault by an armed assailant upon the driver of a car is generally not the type of conduct that is reasonably identifiable with the use of an automobile, O'Key v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979), lv. den., 406 Mich. 1014 (1979); DAIIE v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980); Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979); Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 308 N.W.2d 661 (1981), lv. den., 413 Mich. 861 (1982); Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 367 N.W.2d 388 (1985); Thornton, supra [425 Mich. at] 646 . However, when an assault is directed at the vehicle itself, rather than the driver, the causal relationship is sufficient for liability, Mann v. DAIIE, 111 Mich.App. 637, 314 N.W.2d 719 (1981), lv. den., 414 Mich. 903 (1982); Saunders v. DAIIE, 123 Mich.App. 570, 332 N.W.2d 613 (1983). In such a case, the automobile is not merely the situs of the injury, and there is a direct relation between the functional character of the motor vehicle and the injuries. See Thornton, supra [425 Mich. at] 660 .
In Jones, the plaintiff was shot as he sat in a car. The trial court granted the insurer's motion for summary disposition. We reversed, because the plaintiff had presented evidence that the assault was directed, not at him, but at his automobile. Thus, there remained a material factual issue over the insurer's liability. Jones, 161 Mich.App. at 456, 411 N.W.2d 457.
Here, the jury expressly found that Oaks' assault was directed at plaintiff's automobile rather than at plaintiff. As in Jones, supra, the assault created a sufficient causal relationship between the injury and the injured party's use of the insured automobile to allow recovery of no-fault benefits. Also see Mann, supra; Saunders, supra; Kreighbaum v. Auto Club Ins. Ass'n, 170 Mich.App. 583, 428 N.W.2d 718 (1988).
Defendant argues that this case should not turn on whether Oaks intended to shoot plaintiff or to shoot the car. It relies on a footnote in Thornton, which states, in pertinent part:
We reject the focus that the Florida and Minnesota courts place upon the intent of the assailant as providing the requisite nexus between the injury and the use of the motor vehicle. See generally Government Employees Ins. Co. v. Novak, [453 So.2d 1116, 1119 (Fla.1984) ] and Meric v. Mid-Century Ins., [343 N.W.2d 688, 655 (Minn.App.1984) ]. [Thornton, 425 Mich. at 660, n. 10, 391 N.W.2d 320; emphasis added.]
However, the Thornton Court did not reject the distinction between attacks directed at a driver versus attacks directed at a vehicle. To the contrary, the Court cited with seeming approval two earlier cases that held an insurer liable for no-fault coverage based on this precise distinction. Thornton at 660, 391 N.W.2d 320, citing Saunders, supra; Mann, supra.
Rather, the Court's use of the expression "intent of the assailant" in the footnote referred to the underlying purpose of or motivation behind the assailant's acts. For example, in both opinions cited in the footnote, an assailant, motivated by the intent to steal a vehicle, shot the driver of the vehicle. Both the Florida and Minnesota courts held that, since the drivers' injuries stemmed from the assailants' intent to take the vehicles, the insurers were obligated to provide benefits. Novak, supra; Meric, supra.
What the Thornton Court rejected was the approach of permitting recovery so long as the assailant's underlying reason for committing the attack had some fortuitous connection to a motor vehicle. Accordingly, in that case, the mere fact that a taxi driver was robbed in his taxi was insufficient to establish entitlement to no-fault benefits for injuries sustained during the robbery. The taxi was simply the situs of the injury. Thornton at 659-661, 391 N.W.2d 320.
The present case is distinguishable from cases such as Thornton, Novak and Meric in that the assault was directed at the vehicle plaintiff was driving, not at plaintiff. Here, the car was not merely the situs of the insured's injuries; plaintiff would not have been shot had he not been in the car. Rather, his injuries stemmed from the functional character of the motor vehicle. Jones, 161 Mich.App. at 455-456, 411 N.W.2d 457. Accordingly, plaintiff is entitled to no-fault benefits. Id.
Affirmed.
In my view, the award of no-fault benefits to plaintiff was improper under the circumstances of this case.
The sole issue in this case is whether plaintiff's injuries "[arose] out of the use of a motor vehicle as a motor vehicle." M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). In Thornton v. Allstate Ins. Co., 425 Mich. 643, 659-660, 391 N.W.2d 320 (1986), our Supreme Court stated:
In drafting M.C.L. § 500.3105(1); M.S.A. § 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, 309 N.W.2d 544 (1981) ]. Therefore, the first consideration under M.C.L. § 500.3105(1); M.S.A. § 13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle.10 Without a relation that is more than "but for," incidental, or fortuitous, there can be no recovery of PIP benefits.
The majority concludes that...
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