Rajhel v. Automobile Club Insurance , 145 Mich. App. 593 ( 1985 )

145 Mich. App. 593 (1985) 378 N.W.2d 486

RAJHEL
v.
AUTOMOBILE CLUB INSURANCE ASSOCIATION

Docket No. 74121.

Michigan Court of Appeals.

Decided July 8, 1985.

Frederick D. Jasmer, P.C. (by Frederick D. Jasmer), for plaintiff.

Dickinson, Mourad, Brandt, Hanlon & Becker (by A. Randolph Judd), and Gromek, Bendure & Thomas (by James G. Gross), of counsel, for defendant.

Before: DANHOF, C.J., and T.M. BURNS and R.H. BELL,^[*] JJ.

PER CURIAM.

Plaintiff was unable to start her car and called a tow truck. When the tow truck arrived, she left her car and walked towards it. As plaintiff approached the tow truck, she slipped on a patch of ice and injured herself. Plaintiff then brought this suit seeking recovery of no-fault benefits from her insurer. The trial court denied defendant's motion for summary judgment and this Court granted leave to appeal.

When denying defendant's motion, the lower court found that plaintiff was an occupant of the motor vehicle and that there was a causal connection between her injury and the ownership, operation, maintenance, or use of the motor vehicle. We reverse on the basis that, irrespective of the question of whether plaintiff was "occupying" or "maintaining" a motor vehicle, there has simply been no causal connection established between that activity and the injury sustained. The no-fault act was not designed to compensate all injuries occurring in or around a motor vehicle. Denning v Farm Bureau Ins Co, 130 Mich. App. 777, 782; 344 NW2d 368 (1983), lv den 419 Mich. 877 (1984). The injury sustained in the instant case was unrelated to plaintiff's maintenance, etc., of a motor vehicle, since the injury could "just as well have occurred elsewhere". 130 Mich. App. 786, i.e., its connection to a motor vehicle was merely fortuitous.

This Court has previously recognized that the typical slip-and-fall injury occasioned by icy conditions where the no-fault claimant is simply going to or from a motor vehicle is "without causal connection with the ownership, maintenance, and use of [a motor vehicle]". Block v Citizens Ins Co of America, 111 Mich. App. 106, 109; 314 NW2d 536 (1981). See also, King v Aetna Casualty & Surety Co, 118 Mich. App. 648, 651; 325 NW2d 528 (1982), lv den 418 Mich. 881 (1983); Griffin v Lumbermen's Mutual Casualty Co, 128 Mich. App. 624, 631; 341 NW2d 163 (1983). Were we to permit coverage here, we would be accepting an extremely attenuated causal connection. Because the facts are not in dispute, we hold that summary judgment should have been granted in favor of defendant.

Reversed and remanded for entry of judgment consistent with this opinion.

T.M. BURNS, J. (dissenting).

I would affirm the trial court's denial of defendant's motion for summary judgment. When denying defendant's motion, the trial court found that plaintiff was an occupant of the motor vehicle and that there was a causal connection between her injury and the ownership, operation, maintenance or use of the motor vehicle. While it is arguable that plaintiff was an occupant of the motor vehicle,^[1] I need not consider this issue since the injury arose out of the maintenance of a motor vehicle. Miller v Auto-Owners Ins Co, 411 Mich. 633, 641; 309 NW2d 544 (1981).

In Miller, the Supreme Court referred to jump-starting a car after a cold Michigan night. This Court in Wagner v Michigan Mutual Liability Ins Co, 135 Mich. App. 767, 773; 356 NW2d 262 (1984), noted this reference stating:

"The Court's reference to efforts to jump-start a car after a cold Michigan night strongly implies that it has not sanctioned a definition of maintenance limited only to repairs. The Court clearly indicated its reliance on the body of judicial authority which has been constructed defining the phrase ``arising out of the ownership, maintenance or use'; in this phrase, maintenance has traditionally been given a liberal construction. See 6B Appleman, Insurance Law & Practice (Buckley ed), § 4315, pp 339-341. The Supreme Court's interpretation of ``maintenance' is also illustrated by its analysis in Heard v State Farm Mutual Automobile Ins Co, 414 Mich. 139, 154; 324 NW2d 1 (1982). In Heard, the plaintiff was injured when he was hit by an insured car while pumping gas into his own uninsured car. The Court clearly assumed that the refueling of a vehicle, without more, is maintenance of that vehicle. Heard, supra, pp 146-147, 154. See also Gutierrez v Dairyland Ins Co, 110 Mich. App. 126; 312 NW2d 181 (1981), rev'd on other grounds 414 Mich. 956; 327 NW2d 253 (1982) (see Heard, supra, p 153, fn 15); State Farm Mutual Automobile Ins Co v Pan American Ins Co, 437 S.W.2d 542 (Tex, 1969).

"This Court has adopted a broad definition of maintenance in order to advance the purposes of the no-fault act. See Michigan Basic Property Ins Ass'n v Michigan Mutual Ins Co, 122 Mich. App. 420, 424-425; 332 NW2d 504 (1983).

* * *

"We have little doubt, however, that most would agree that the purposes of the no-fault act would be defeated by a narrow construction of the term ``maintenance' applied in cases like the present one in which an owner-operator of a vehicle attempted to service the vehicle in a place other than a service facility. If this type of activity is not covered, it is hard to imagine the Legislature's reasons for including the coverage of maintenance. The need for insurance coverage would appear to be far greater in cases of roadside service than in cases of major repairs which are usually performed in facilities covered by other insurance."

While in the instant case the insured did not attempt to repair the motor vehicle by herself, I would find that this broad definition of maintenance encompasses the present facts. It is undisputed that plaintiff was injured while attempting to procure aid for her disabled motor vehicle.

The next issue is whether the trial court properly found that plaintiff's injuries arose out of the maintenance of her motor vehicle. In Gutierrez v Dairyland Ins Co, 110 Mich. App. 126, 135; 312 NW2d 181 (1981), this Court found that the term "arise out of" does not require a showing of proximate causation. A sufficient causal connection is established if the injury is foreseeably identifiable with the normal maintenance of a motor vehicle. See Wagner, supra, p 775.

I disagree with the majority on this issue and would find that there is a sufficient causal connection. The fact that plaintiff slipped and fell while maintaining her car establishes a sufficient causal connection. While plaintiff could have slipped anywhere as the majority notes, she was exposed to this particular hazard because of the need to repair her car. None of the cases relied on by the majority on this issue deal with maintenance of a vehicle and I would, therefore, find them distinguishable.

The trial court did not err in denying defendant's motion for summary judgment. I would, therefore, affirm the trial court.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] While the Michigan Supreme Court in a recent case, Royal Globe Ins Co v Frankenmuth Mutual Ins Co, 419 Mich. 565; 357 NW2d 652 (1984), considered very similar facts and found that the insured was not occupying the motor vehicle, the Court also noted that a significant factor in so finding was that the insured would have recovered even if she was not an occupant of the motor vehicle. In the instant case, plaintiff could not recover if it were determined that she was not an occupant and, therefore, a broad construction of the term "occupant" may be applicable. Royal Globe, supra, pp 575-576.