Shaw v. Allstate Ins. Co.

• Decision Date: 22 May 1985
• Docket Number: Docket No. 75735
• Parties: C. Marie SHAW, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 388

367 N.W.2d 388

141 Mich.App. 331

C. Marie SHAW, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 75735.

Court of Appeals of Michigan.

Submitted Oct. 3, 1984.

Decided March 5, 1985.

Released for Publication May 22, 1985.

Parmenter, Forsythe, Rude, Van Epps, Briggs & Favri by James R. Seastrom, Muskegon, for plaintiff-appellant.

Baxter & Hammond by Phillip J. Nelson, and Dykema, Gossett, Spencer, Goodnow & Trigg by James R. Piggush, Grand Rapids, for defendant-appellee.

Before HOLBROOK, P.J., and MacKENZIE and LAMB ^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting defendant insurance company's motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim upon which relief can be granted).

The facts well pled in plaintiff's complaint, and taken as true for purposes of this appeal, ¹ show that on January 24, 1982, plaintiff was operating a motor vehicle insured by defendant in Dade County, Florida. Her husband was a passenger at the time. While operating this vehicle, she and her husband were followed home by robbers who accosted her and her husband after she parked the vehicle in their driveway. Plaintiff's husband was then shot by the robbers while he was still sitting in the automobile. He died from the injuries he received in this shooting.

Plaintiff later tried to amend her complaint to state that highway robbery is prevalent in Dade County. For purposes of this appeal, we conclude that these facts are also true because of the nature of the trial court's ruling. In other words, the trial court held that, despite this proposed amendment, it would still grant defendant's motion for summary judgment.

Based upon the above facts, we affirm the trial court's judgment.

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."

This provision has been interpreted as meaning that there must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and this causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975), lv. den. 395 Mich. 787 (1975).

Other decisions by this Court have held that a person assaulted while sitting in a motor vehicle is not entitled to no-fault benefits as herein sought. See, e.g., Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 69-70, 308 N.W.2d 661 (1981), lv. den. 413 Mich. 861 (1982) (plaintiff's decedent was killed by an armed assailant while conducting his normal door-to-door produce business from his truck) ²; Detroit Automobile Inter-Ins. Exchange v. Higginbotham, 95 Mich.App. 213, 221-222, 290 N.W.2d 414 (1980), lv. den. 409 Mich. 919 (1980) (plaintiff forced to the curb by her estranged husband, trapped in her car, and then shot by her husband several times by a revolver); Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 645, 280 N.W.2d 512 (1979) (plaintiff struck in the nose by a pedestrian's fist while plaintiff was sitting in his car at an intersection); O'Key v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 530, 280 N.W.2d 583 (1979), lv. den. 406 Mich. 1014 (1979) (plaintiff shot in the hip while trying to evade an assailant entering the passenger side of his car). At this time, we are not prepared to depart from the reasoning expressed in those opinions.

Plaintiff's reliance upon Saunders v. Detroit Automobile Inter-Ins. Exchange, 123 Mich.App. 570, 572, 332 N.W.2d 613 (1983), and Mann v. Detroit Automobile Inter-Ins. Exchange, 111 Mich.App. 637, 639-640, 314 N.W.2d 719 (1981), lv. den. 414 Mich. 903 (1982), is misplaced. In each of those cases, the injuries were sustained while the automobile was actually moving on the highway. To this extent, the causal connection between the injuries sustained in the automobile was more than incidental or fortuitous. In this case, on the other hand, plaintiff's decedent's fatal injuries occurred while he was sitting in the subject automobile, which was parked in plaintiff's driveway. Accordingly, we are not faced with a highway robbery situation as argued on appeal.

Likewise, plaintiff's reliance upon Gajewski v. Auto-Owners Ins. Co., 414 Mich. 968, 326 N.W.2d 825 (1982), rev'g. 112 Mich.App. 59, 314 N.W.2d 799 (1981), is also misplaced. There, plaintiff was injured when a bomb attached to his automobile exploded as he turned the ignition key to start the car. In reversing this Court's majority, the Supreme Court adopted Judge Cynar's dissenting opinion at 112 Mich.App. 62-63, 314 N.W.2d 799. The injuries in...