Mann v. Detroit Automobile Inter-Insurance Exchange

111 Mich. App. 637 (1981) 314 N.W.2d 719

MANN
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE.

Docket No. 55381.

Michigan Court of Appeals.

Decided December 1, 1981.

Citron & Citron (by Ernest L. Citron and Charles Reisman), for plaintiff.

Dickinson, Mourad, Brandt, Hanlon & Becker (by William V. Taylor, II), for defendant.

Before: DANHOF, C.J., and D.F. WALSH and D.C. RILEY, JJ.

PER CURIAM.

Plaintiff appeals the summary judgment entered in favor of defendant.

According to deposition testimony, an unidentified individual threw a stone at plaintiff's vehicle from an overpass as plaintiff was driving along a Detroit expressway in December, 1978. The object apparently hit the automobile's hood and windshield. Plaintiff allegedly turned his neck sharply in a reflex action and sustained neck and shoulder injuries. Plaintiff filed a suit to collect no-fault benefits for lost wages and medical bills.

Defendant moved for summary judgment under GCR 1963, 117.2(3). Defendant claimed that the injury did not arise out of the operation or use of a motor vehicle as required by the no-fault statute. The trial court granted defendant's motion and denied plaintiff's motion for rehearing. We reverse.

Under the no-fault act, an individual is entitled to personal protection insurance benefits for accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). The causal connection between the injury sustained and the ownership, maintenance, or use of the automobile must be more than incidental, fortuitous, or "but for". The injury must be foreseeably identifiable with the normal ownership, maintenance, or use of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975). It is not sufficient that the motor vehicle is merely the site of the accident. Shinabarger v Citizens Mutual Ins Co, 90 Mich. App. 307, 314; 282 NW2d 301 (1979).

Ordinarily, an assault on a person in an automobile is not a compensable injury under the no-fault act. This is because ordinarily the fact that the injured person is in a car has no connection with the assault itself. The individual's presence in the automobile is merely fortuitous or incidental. See, e.g., Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213; 290 NW2d 414 (1980), Hamka v Automobile Club of Michigan, 89 Mich. App. 644; 280 NW2d 512 (1979), and O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 NW2d 583 (1979).

This case, however, presents a different factual situation. In today's society, unfortunately, there are unbalanced individuals who take perverse enjoyment out of dropping rocks and other objects on automobiles as they pass under overpasses on expressways. In recognition of this hazard, traffic engineers often design overpasses with protective fencing. This type of assault is directed at the automobile itself, not the driver. It happens only because the automobile is passing under the overpass at the appointed time. There is a direct causal relationship between the driving of the vehicle and the assault. In this case, if the plaintiff had not been driving his automobile, he would not have been assaulted. Injuries sustained as a result of the assault, therefore, arise out of the operation and use of the motor vehicle as a motor vehicle.

Summary judgment should not have been granted.

Reversed, costs to appellant.