Smith v. Community Service Ins. Co.

• Decision Date: 28 May 1982
• Docket Number: Docket No. 56233
• Citation: 319 N.W.2d 358,114 Mich.App. 431
• Parties: Nanette SMITH, Plaintiff-Appellant, v. COMMUNITY SERVICE INSURANCE COMPANY, A Michigan corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 358

319 N.W.2d 358

114 Mich.App. 431

Nanette SMITH, Plaintiff-Appellant, v. COMMUNITY SERVICE INSURANCE COMPANY, A Michigan corporation Defendant-Appellee.

Docket No. 56233.

Court of Appeals of Michigan.

Submitted Jan. 7, 1982.

Decided March 19, 1982.

Released for Publication May 28, 1982.

White, Spaniola, Knudsen, Stariha & Potuznik, P. C. by Richard K. Reider, Jr., Muskegon, for plaintiff-appellant.

Cholette, Perkins & Buchanan by Anthony A. Derezinski, Grand Rapids, for defendant-appellee.

Before R. B. BURNS, P. J., and WALSH and MacKENZIE, JJ.

PER CURIAM.

Plaintiff is the insured and defendant is the insurer under a policy of no-fault automobile insurance. Plaintiff was injured while riding on an inner-tube which was being towed by the insured vehicle. As the vehicle proceeded down the road, the inner-tube, attached by a rope, was swerving from side to side. It went up a bank of plowed snow, flipped over, and in the resulting impact, plaintiff was injured.

On June 19, 1980, plaintiff filed this action for declaratory relief seeking a determination that defendant was liable to pay personal injury protection (PIP) benefits to her. At issue in this appeal is whether the trial court erred in finding that the injury did not arise "out of the ownership, maintenance or use of a motor vehicle as a motor vehicle", within the meaning of M.C.L. § 500.3105; M.S.A. § 24.13105. That statute provides:

"Sec. 3105. (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, subject to the provisions of this chapter."

The term "arising out of" does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Williams v. Citizens Mutual Ins. Co. of America, 94 Mich.App. 762, 764-765, 290 N.W.2d 76 (1980).

This Court in Detroit Automobile Inter-Ins. Exchange v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980), lv. den. 409 Mich. 919 (1980), recently summarized the standard for determining whether an injury arises out of the use of a motor vehicle.

"Cases construing the phrase 'arising out of the * * * use of a motor vehicle' uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. See Anno: Automobile liability insurance: what are accidents or injuries 'arising out of the ownership, maintenance, or use' of insured vehicle, 89 A.L.R.2d 150. Such causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use of the vehicle. Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975)." DAIIE v. Higginbotham, supra, 95 Mich.App. at 222, 290 N.W.2d 414.

This rule has been applied numerous times to deny insurance benefits to a person injured by another person or instrumentality, even though the injury occurred in or near a motor vehicle. Ciaramitaro v. State Farm Ins. Co., 107 Mich.App. 68, 308 N.W.2d 661 (1981); DAIIE v. Higginbotham, supra; 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); Hamka v. Automobile Club of Michigan, 89 Mich.App. 644, 280 N.W.2d 512 (1979); Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 235 N.W.2d 42 (1975); Dowdy v. Motorland Ins. Co., 97 Mich.App. 242, 293 N.W.2d 782 (1980); Richland Knox Mutual Ins. Co. v. Kallen, 376 F.2d 360 (CA 6, 1967).

In each of the cases denying PIP benefits based on an insufficient causal connection between the injury and the vehicle, the injury was inflicted upon the claimant as a result of some...