Summary
In Saunders, the projectile was "either a rock or piece of concrete, which was thrown through the open passenger window of the automobile.
Summary of this case from Bourne v. Farmers Insurance ExchangeOpinion
Docket No. 63356.
Decided February 25, 1983.
Charfoos, Christensen, Gilbert Archer, P.C. (by Adrienne G. Southgate), for plaintiffs.
Dickinson, Mourad, Brandt, Hanlon Becker (by William V. Taylor, II), for defendant.
Plaintiff Delores Saunders was a passenger in an automobile owned and driven by her husband, plaintiff William Saunders, and insured by defendant, Detroit Automobile Inter-Insurance Exchange (DAIIE). Delores Saunders was seriously injured when she was struck by a projectile, either a rock or a piece of concrete, which was thrown through the open passenger window of the automobile. The source of the projectile was never determined.
Plaintiffs commenced this action seeking personal injury protection (PIP) benefits under the nofault policy. A jury trial was held and, following the close of plaintiffs' proofs, the trial court granted defendant's motion for a directed verdict. The trial court found that Delores Saunders' injuries resulted from an intentional assault and that, as a matter of law, the injury did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). This Court granted plaintiffs application for delayed appeal.
In order to obtain PIP benefits under the nofault act, the injured party must establish a causal connection between the injury sustained and the ownership, maintenance, or use of the automobile. The injury must be foreseeably identifiable with the normal use, maintenance, or ownership of the vehicle. Kangas v Aetna Casualty Surety Co, 64 Mich. App. 1, 17; 235 N.W.2d 42 (1975).
This Court has held many times that an individual's presence in an automobile at the time an assault occurs does not establish the requisite causal connection. 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). However, in Mann v Detroit Automobile Inter-Ins Exchange, 111 Mich. App. 637; 314 N.W.2d 719 (1981), the Court noted an important distinction between an ordinary assault perpetrated upon one who by mere fortuity happens to be in an automobile and an assault which occurs when a projectile is propelled at a moving vehicle. In the latter case, the assault is directed at the automobile itself, rather than at the driver or passenger. Such an assault is, unfortunately, part of the normal risk of operating a motor vehicle and it must be considered foreseeably identifiable with the normal use of the vehicle. On the authority of Mann v Detroit Automobile Inter-Ins Exchange, supra, we hold that there was a direct causal relationship between Delores Saunders' injury and her use of the motor vehicle. The trial court erred in granting a directed verdict for defendant.
Reversed and remanded for trial.