Opinion
Docket No. 75735.
Decided March 5, 1985. Leave to appeal applied for.
Parmenter, Forsythe, Rude, Van Epps, Briggs Favri (by James R. Seastrom), for plaintiff.
Baxter Hammond (by Phillip J. Nelson); and Dykema, Gossett, Spencer, Goodnow Trigg (by James R. Piggush), for defendant.
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, 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.
Partrich v Muscat, 84 Mich. App. 724, 727-730; 270 N.W.2d 506 (1978).
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.
MCL 500.3105(1); MSA 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); 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.
We recognize that there is now a conflict on this Court regarding whether an injury from an assault, made upon a commercially insured vehicle, can be compensated under the no-fault act. Contrast Ciaramitaro, supra, with Thornton v Allstate Ins Co, 135 Mich. App. 160, 166; 351 N.W.2d 910 (1984) (plaintiff, a taxicab driver, was paralyzed from the neck down when wounded during an armed robbery by a passenger of his taxicab). However, we need not address this question because plaintiff's automobile was not a commercially insured vehicle. We cite Ciaramitaro in the main text only as support for the general proposition that persons assaulted in their automobiles cannot recover no-fault benefits absent special circumstances.
Plaintiff's reliance upon Saunders v Detroit Automobile Inter-Ins Exchange, 123 Mich. App. 570, 572; 332 N.W.2d 613 (1983), and Man 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. The injuries in Gajewski would not have occurred absent use of a motor vehicle as a motor vehicle; viz., turning the ignition key is identified with the normal manner of starting a vehicle. Thus, there was a direct causal connection between the use of the motor vehicle and Gajewski's injuries. In this case, on the other hand, the injuries could have resulted whether plaintiff was sitting in the vehicle or not. The fact that plaintiff and her decedent were followed home does not change this result.
Accordingly, the trial court's granting of defendant's motion for summary judgment under GCR 1963, 117.2(1) is affirmed.
Affirmed. No costs, a question of statutory interpretation being involved.