Morosini v. Citizens Ins. Co. of America, Docket No. 186760

• Decision Date: 06 June 1997
• Docket Number: Docket No. 186760
• Citation: 224 Mich.App. 70,568 N.W.2d 346
• Parties: Kenneth MOROSINI, Plaintiff-Appellee, v. CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 346

568 N.W.2d 346

224 Mich.App. 70

Kenneth MOROSINI, Plaintiff-Appellee, v. CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellant.

Docket No. 186760.

Court of Appeals of Michigan.

Submitted April 1, 1997, at Detroit.

Decided June 6, 1997, at 9:05 a.m.

Released for Publication Sept. 11, 1997.

Gregory T Zalecki, Warren, for Plaintiff-Appellee.

Schellhase, Disney, Auld & Johnston by David C. Johnston, Livonia, for Defendant-Appellant.

Before HOLBROOK, P.J., and FITZGERALD and SMOLENSKI, JJ.

FITZGERALD, Judge.

Defendant appeals by leave granted the circuit court order affirming the district court judgment awarding plaintiff $2,500 in first-party, no-fault benefits after a trial on stipulated facts. We affirm.

I

The district court stated the stipulated facts as follows:

On the date stated in the complaint, the Plaintiff was an operator of a motor vehicle on a public highway, I believe, leaving the Silverdome ..., and he was struck from the rear by a motorist who was operating a motor vehicle.

It was a minor impact, and the impact, per se, itself, caused no injury whatsoever to Mr. Kenneth Morosini. However, it was an impact which would give rise to the requirement to determine if property damage had occurred, and if property damage had occurred, it would be necessary, under the rules of a--for vehicle operators, for the operators to exchange identification information, such as driver's license and insurance and registration information.

Mr. Morosini exited his vehicle, was in the process of examining the area where he believed a slight impact had occurred, and he was assaulted by the driver of the other vehicle resulting in injuries.

He has brought this action against Citizens Insurance Company, who [sic] is Mr. Morosini's own personal-injury protection carrier, for recoupment of medical expenses arising out of the treatment for the assault [and wage loss and replacement services].

* * * * * *

The damages have been stipulated between the parties at $2500.

At issue was whether plaintiff's injury arose out of the ownership, operation, maintenance, or use of a motor vehicle under M.C.L. § 500.3105(1); M.S.A. § 24.13105(1). The district court ruled that plaintiff's injuries arose from the use of his motor vehicle because the assault occurred while he was fulfilling his obligations as an operator of a motor vehicle to exchange information with the other driver after an automobile accident. The district court stated:

It is the Court's belief that in the process of fulfilling his obligations as an operator of a motor vehicle, that he was assaulted And such an assault, frankly, is, I guess, not unforeseeable, certainly is not unforeseeable to this Court, and ... it's just not an uncommon situation, at all, that people lose it at the scene of an accident; either the people causing the accident or the people whose vehicles were damaged who were innocent.

* * * * * *

I think that the operator of a motor vehicle here was required to place himself in this position ... of potential danger in order to fulfill his obligations as an operator of a motor vehicle. And therefore, under the facts of this case, these injuries did arise out of the operation or use of a motor vehicle as a motor vehicle.

Subsequently, the district court entered a judgment in favor of plaintiff in the amount of $2,500.

On appeal, the circuit court agreed with the district court that assaults arising from automobile collisions, like the assault arising from the carjacking in Bourne v. Farmers Ins. Exchange, 203 Mich.App. 341, 512 N.W.2d 80 (1994), were within the ordinary risks of driving a motor vehicle. In its opinion and order, the circuit court observed:

The Court is not convinced that the district court's ruling that the plaintiff-appellee's injuries resulted from his operation of a motor vehicle as a motor vehicle was clearly erroneous. The Court finds not only was this incident foreseeable, but that the plaintiff-appellee was using his motor vehicle in such a manner and that his injuries were a result of that use. The District Court further recognizes that these assaults are now within the ordinary risk of driving a motor vehicle.

The factual setting for this claim is most closely aligned with the carjacking in Bourne, supra. As noted in the lower court, assaults arising from automobile collisions are now within the ordinary risks of driving. The risks are increased by the driver's duty to remain on the scene of an accident, inspect damage, and exchange information. As in Bourne, there is no claim of a pre-existing dispute and the nexus of plaintiff's injuries with the use of his motor vehicle is a direct, causal one. The accident precipitated the assault, and the assault occurred as an integral part of the continuum of the accident.

Thereafter, defendant moved for rehearing or reconsideration, arguing that the Supreme Court's partial reversal of this Court's decision in Bourne warranted reversal of the district court's judgment. Bourne v. Farmers Ins. Exchange, 449 Mich. 193, 534 N.W.2d 491 (1995). After the circuit court denied the motion on the basis of its lack of appellate jurisdiction, this Court granted defendant's application for leave to appeal the circuit court's order.

II

M.C.L. § 500.3105(1); M.S.A. § 24.13105(1) provides that an insurer is required to pay first-party, no-fault benefits when an accidental bodily injury arises out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. The no-fault act must be liberally construed in favor of those for whom benefit was intended, i.e., persons injured in motor vehicle accidents, and whether an injury arises out of the use of a motor vehicle must be determined case by case. McKenney v. Crum & Forster, 218 Mich.App. 619, 623, 554 N.W.2d 600 (1996).

In Thornton v. Allstate Ins. Co., 425 Mich. 643, 650-651, 391 N.W.2d 320 (1986), the Court adopted the causation standard set forth in Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975):

"[W]hile 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."

See also Marzonie v. Auto Club Ins. Ass'n, 441 Mich. 522, 495 N.W.2d 788 (1992); Bourne, 449 Mich. at 195-196, 198, 534 N.W.2d 491.

In determining whether the circuit court erred in affirming the district court's judgment, we begin by reviewing Michigan case law addressing whether injuries arising from assaults are compensable under the no-fault act. Injuries arising from assaults have been found to be compensable under the no-fault act only when the vehicle is itself part of the target of the assault, whether intentional or accidental, such that the injury suffered is identifiable with the use of a motor vehicle as a motor vehicle. See Gajewski v. Auto-Owners Ins. Co., 414 Mich. 968, 326 N.W.2d 825 (1982) (an explosive device attached to ignition of motor vehicle detonated, causing serious injury to the car's occupant; the Supreme Court held that a direct causal relationship existed between the use of a motor vehicle and the plaintiff's injuries because turning the ignition key was reasonably identifiable with the normal use of the vehicle); Saunders v. DAIIE, 123 Mich.App. 570, 332 N.W.2d 613 (1983) (passenger in moving car injured by projectile that flew in through open window); Mann v. DAIIE, 111 Mich.App. 637, 314 N.W.2d 719 (1981) (stone dropped on the plaintiff's vehicle by unknown person from freeway overpass); Kreighbaum v. Automobile Club Ins. Ass'n, 170 Mich.App. 583, 428 N.W.2d 718 (1988) (the plaintiff driver accidentally shot by deer hunter after she slowed down on a rural road to avoid collision with a deer).

Generally, however, injuries arising from assaults have not been found to be compensable under the no-fault act, even though a motor vehicle may provide the situs or the occasion for the assault. See O'Key v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979) (the plaintiff shot by an unknown assailant while sitting in a stationary car with engine running); Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979) (the plaintiff punched in the nose by pedestrian while sitting in his car at an intersection); Shinabarger v. Citizens Mutual Ins. Co., 90 Mich.App. 307, 282 N.W.2d 301 (1979) (the decedent was killed as he was entering an automobile when a companion's rifle accidentally discharged as it was being passed to another person sitting in the car); DAIIE v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980) (the plaintiff was shot in her car by estranged husband after an automobile chase in which her automobile was forced to the curb); Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 308 N.W.2d 661 (1981) (the decedent was killed in an armed robbery while delivering produce from his truck); A & G Associates, Inc. v. Michigan Mutual Ins. Co., 110 Mich.App. 293, 312 N.W.2d 235 (1981) (the plaintiff, a passenger in a taxicab, sustained injuries when she was assaulted and robbed by cab driver); Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 367 N.W.2d 388 (1985) (the decedent was shot in his parked car).

Moreover, in Thornton, 425 Mich. at 660, 391 N.W.2d 320, the Court found that there was no coverage for the injuries that the plaintiff, a cab driver, suffered when he was shot by his passenger and then robbed because the connection between his injuries and the use of the cab were no more than incidental, fortuitous, or "but for." In denying coverage, the Court reasoned that the taxicab was "merely the situs of the armed robbery [such that] the injury could have occurred whether or not Mr. Thornton used a...