Opinion
Docket No. 52449.
Decided June 4, 1981. Leave to appeal applied for.
Charfoos, Christensen, Gilbert Archer, P.C. (by John G. Konkel), for plaintiff.
Eggenberger, Eggenberger, McKinney Weber, P.C., for defendant.
Plaintiff sued to recover survivor's loss benefits for her husband's death from his no-fault insurance carrier. Defendant's motion for summary judgment was granted pursuant to GCR 1963, 117.2(1), and plaintiff appeals.
On January 26, 1979, plaintiff's decedent was in the process of conducting his normal door-to-door produce business from his truck when he was confronted by an unknown armed assailant who robbed and killed him. Plaintiff's claim for benefits from defendant was denied.
This case involves the question of whether the death of plaintiff's decedent arose out of the ownership, operation, maintenance, or use of his vehicle. The trial court found that the assault was entirely unrelated to the decedent's use of his vehicle.
A number of recent cases decided by this Court have construed the phrase "arising out of the * * * use of a motor vehicle" and have uniformly required that the injured person establish a causal connection between the use of the motor vehicle and the injury. MCL 500.3105; MSA 24.13105. Such causal connection must be more than incidental or fortuitous. The injury must be foreseeably identifiable with the normal use of the vehicle. Further, this Court has stated that an assault by an armed assailant upon the driver of a car is not the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle. Detroit Automobile Inter-Ins Exchange 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), O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 N.W.2d 583 (1979), Kangas v Aetna Casualty Surety Co, 64 Mich. App. 1, 17; 235 N.W.2d 42 (1975).
Plaintiff attempts to distinguish this case from the above cases on the basis that the above cases involved privately insured vehicles while the present case involves a commercially insured vehicle. Therefore, plaintiff argues, the relationship between plaintiff's decedent's death and the use of his commercially insured vehicle is clearly more than incidental or fortuitous; it was foreseeably identifiable with the use of his vehicle because the decedent collected money which increased the risk of being assaulted.
We find that the cases previously decided by this Court and the present case are not distinguishable. The fact that the decedent's vehicle was commercially insured is inconsequential to this issue, even though the decedent collected money which may have increased his chances of being assaulted while in his vehicle. An assault by an armed assailant upon the driver of a commercially insured vehicle, no matter what the nature of his business, is no more foreseeably identifiable with the normal use of the vehicle than an assault upon the driver of a privately insured vehicle. The vehicle itself was not connected with the assault; it was not the instrumentality of the injury, and its role remained merely incidental. The trial court properly granted defendant's motion for summary judgment. Partrich v Muscat, 84 Mich. App. 724, 729-730; 270 N.W.2d 506 (1978).
Affirmed.