Ricciuti v. Detroit Automobile Inter-Insurance Exchange , 101 Mich. App. 683 ( 1980 )

101 Mich. App. 683 (1980) 300 N.W.2d 681

RICCIUTI
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE

Docket No. 47520.

Michigan Court of Appeals.

Decided November 20, 1980.

Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Linda M. Baxter), for plaintiff.

Dickinson, Pike, Mourad, Brandt & Hanlon, and Gromek, Bendure & Thomas (by James G. Gross), for defendant.

Before: D.C. RILEY, P.J., and N.J. KAUFMAN and MacKENZIE, JJ.

MacKENZIE, J.

Plaintiff, Robert E. Ricciuti, was injured when his motorcycle skidded on a wet license plate lying in the road on an exit ramp, causing plaintiff to crash into a guardrail. Plaintiff, who had no-fault insurance coverage through Detroit Automobile Inter-Insurance Exchange (DAIIE) on a van he owned, brought this action under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., for personal protection insurance benefits. From the trial court's order of July 11, 1979, granting summary judgment in favor of defendant under GCR 1963, 117.2(3), plaintiff appeals as of right.

Under Michigan law, a motorcyclist who suffers bodily injury as the result of an accident involving a motor vehicle is entitled to no-fault benefits. Underhill v Safeco Ins Co, 407 Mich. 175; 284 NW2d 463 (1979).

For plaintiff to recover personal protection insurance benefits, however, the accident must have arisen "out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle". MCL 500.3105; MSA 24.13105. In Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975), lv den 395 Mich. 787 (1975), the following test was set forth for determining whether an accident arises out of the ownership, operation, maintenance, or use of a motor vehicle:

"In summary, we 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."

The test in Kangas has been applied by several panels of this Court to deny no-fault recovery to the victim of an assault which occurred in or near an automobile. DAIIE v Higginbotham, 95 Mich. App. 213; 290 NW2d 414 (1980), Hamka v Automobile Club of Michigan, 89 Mich. App. 644; 280 NW2d 512 (1979), O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 NW2d 583 (1979). Likewise, recovery has been denied to a plaintiff who was not personally involved in an automobile accident but who suffered mental distress due to her daughter's death in an automobile accident. Williams v Citizens Mutual Ins Co of America, 94 Mich. App. 762; 290 NW2d 76 (1980).

Plaintiff herein argues that his injuries arose out of the ownership, maintenance, or use of a motor vehicle because the accident would not have occurred had not the license plate fallen from an automobile being driven on the highway. Plaintiff does not allege that the accident occurred immediately after the license plate fell off the car but that it occurred at least two days after the car had lost its license plate. The fact that the license plate had once been attached to an automobile does not supply a sufficient causal connection between ownership, use, or maintenance of a motor vehicle and the injury under the Kangas analysis. Plaintiff has merely shown that his accident was incidentally or fortuitously related to the ownership, use, or maintenance of a motor vehicle.

Affirmed. Costs to defendant.