Thornton v. Allstate Ins. Co.

Decision Date07 August 1986
Docket NumberDocket No. 74497
Citation425 Mich. 643,391 N.W.2d 320
PartiesEddie THORNTON, Jr., Plaintiff-Appellee, and Attorney General for the People of the State of Michigan and the Michigan Department of Social Services, Intervening Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant, and Nelvia Miller, Defendant.
CourtMichigan Supreme Court

Ren Rene J. Ortlieb, Flint, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Lansing, Bernard Rosner, Asst. Atty. Gen., Detroit, for intervening plaintiff-appellees.

Garan, Lucow, Miller, Seward, Cooper & Becker by James L. Borin, James G. Gross, Detroit, for defendant-appellant.

Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh, Detroit, for amici curiae.

BOYLE, Justice.

The sole issue on appeal in this case is whether injuries sustained by Mr. Thornton during the armed robbery of a taxicab are injuries "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle ..." M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), for purposes of no-fault personal injury protection benefits. We reverse the judgment of the Court of Appeals in the instant case because there was no more than a "but for," incidental, or fortuitous connection between the injuries inflicted upon Mr. Thornton and the "use of a motor vehicle as a motor vehicle."

I Facts

Around 2:40 a.m. on the morning of December 2, 1978, Eddie Thornton, Jr., a forty-four-year-old taxi driver in Flint, Michigan, received a call directing him to pick up a fare. After Thornton arrived at the location, the passenger entered the cab and told Thornton the ostensible destination. As Thornton pulled away from the curb, the passenger drew a .25 caliber automatic pistol and shot Thornton in the right side of the neck. The robber then grabbed Thornton from behind and demanded money. After robbing Thornton of approximately $15 in change, the passenger, joined by an accomplice, dragged Thornton from the cab, stripped him of his shirt and coat, and left him lying between two houses. As a result of the gunshot wound, Mr. Thornton is completely paralyzed from the neck down and will require medical care for the rest of his life. 1

The taxicab driven by Mr. Thornton was owned by Nelvia Miller, doing business as the Witness Cab Company, and was insured by Allstate under an automobile insurance policy providing first-party benefits and liability coverage. Mr. Thornton worked under an arrangement with Ms. Miller in which he drove the cab and shared the net receipts equally with her. 2

Thornton seeks first-party personal injury protection (PIP) benefits under the policy issued to Ms. Miller. The Attorney General and the Department of Social Services intervened in the action to recover more than $140,000 paid under Medicaid for Thornton's expenses. Miller filed a third-party action against Allstate for a declaration of rights concerning coverage under the liability portion of the policy. Defendant moved for summary judgment, and the trial court held that Allstate was liable for first-party PIP benefits because Thornton's injuries arose out of his "use of the taxi as a taxi." 3 The Court of Appeals affirmed. Thornton v. Allstate Ins. Co., 135 Mich.App. 160, 351 N.W.2d 910 (1984).

II Legislative Intent

The question in this case is whether gunshot wounds inflicted upon a taxicab driver by a passenger in the course of an armed robbery are injuries covered by first-party personal injury protection benefits under a no-fault automobile insurance policy. Because this policy is issued pursuant to Michigan's no-fault insurance act, resolution of the case turns upon construction of M.C.L. § 500.3105(1); M.S.A. § 24.13105(1), which 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 construing a statute, it is this Court's duty to discern the intent of the Legislature in enacting the relevant provision. O'Donnell v. State Farm Mutual Automobile Ins. Co., 404 Mich. 524, 544, 273 N.W.2d 829 (1979). We first look to the language of the statute itself. Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104, 110, 252 N.W.2d 818 (1977). In construing the meaning of statutory language, "[w]ords and phrases which have acquired meaning in the common law are interpreted as having the same meaning when used in statutes dealing with the same subject matter...." Thomas v. Highway Dep't, 398 Mich. 1, 9, 247 N.W.2d 530 (1976). In Miller v. Auto-Owners Ins. Co., 411 Mich. 633, 638-639, 309 N.W.2d 544 (1981), we observed:

The phrase "arising out of the ownership, maintenance or use" of a vehicle has commonly been used in automobile insurance policies, and was apparently used in the no-fault act in awareness of that history.

"Long prior to the no-fault movement the term 'arising out of the ownership, maintenance, or use' of a motor vehicle appeared in automobile liability insurance policies. This term has been adopted as the basic causal relation test in all no-fault auto insurance plans. Like its counterpart in workers' compensation, it has been the subject of dispute, but unlike the workers' compensation situation of commencing with a new test, no-fault automobile insurance will have the benefit of the body of case law construing the term under the liability system." O'Connell & Henderson, Tort Law, No-Fault and Beyond (1975), p 362.

At the time our Legislature enacted the no-fault insurance statute in 1973, no Michigan court 4 had addressed the question of what injuries are covered within the phrase "arising out of the ownership, maintenance or use of a motor vehicle." However, at the time the no-fault law was enacted, that phrase had a relatively well-established meaning in insurance law. See Anno: Automobile liability insurance: What are accidents or injuries "arising out of the ownership, maintenance, or use" of an insured vehicle, 89 A.L.R.2d 150. All courts agreed that some sort of causal connection between the injury and the ownership, maintenance, or use of the vehicle was required for coverage. Id. at 153; see also 6B Appleman, Insurance Law & Practice (Buckley ed.), § 4317, p. 357. The dispute concerned what type of causal nexus was required. Id.; see also Appleman, supra, pp. 359-369.

In Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 235 N.W.2d 42 (1975), the Court of Appeals interpreted the phrase "arising out of the ownership, maintenance or use of the owned automobile" in the context of a pre-no-fault insurance contract. The insured sought coverage for liability arising out of an assault and battery perpetrated by the insured and others when they stopped the insured's car, exited, and physically assaulted a person standing near the road. Id., 64 Mich.App. at 4, 235 N.W.2d 42. In discussing whether the victim's injuries arose out of the use of the insured's vehicle, the Kangas Court surveyed national case law and, rejecting the proposal that "but for" causation be sufficient, adopted the following test for the requisite connection between an injury and the use of a motor vehicle:

[W]e conclude that while 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. [Id., 64 Mich.App. at 17, 235 N.W.2d 42.]

Under this test, the Kangas Court found that the injury did not arise out of the use of the insured's vehicle for purposes of the automobile insurance contract involved because there was an insufficient connection between the use of the vehicle and the assault and battery.

While the Kangas opinion was not available at the time the Michigan no-fault program was enacted, the bulk of the case law upon which Kangas relied was extant. This case law generally required more than "but for," incidental or attenuated causation. Summarizing the cases, 6B Appleman, supra, pp. 367-368, 5 states:

Accordingly, three rather interesting rules have been set up to determine the insurer's liability: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.

Thus, the Kangas requirement that there be more than a "but for" connection between an injury and "the use of a motor vehicle" was well-represented in the case law at the time the Michigan no-fault act was enacted.

III Contemporary Case Law

Many Michigan Court of Appeals decisions have dealt with whether persons assaulted while in a motor vehicle are entitled to no-fault benefits. These panels have applied the Kangas causation test and, generally, have found that the injury had an insufficient causal nexus with the normal use of a motor vehicle. In Shaw v. Allstate Ins. Co., 141 Mich.App. 331, 333-334, 367 N.W.2d 388 (1985), the Court of Appeals summarized this line of cases:

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 NW2d 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); Detroit Automobile Inter-Ins Exchange v. Higginbotham, 95 Mich App...

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