Gajewski v. Auto-Owners Insurance

112 Mich. App. 59 (1981) 314 N.W.2d 799

GAJEWSKI
v.
AUTO-OWNERS INSURANCE COMPANY.

Docket No. 52220.

Michigan Court of Appeals.

Decided December 16, 1981.

Rowe, Talon & Jones, P.C., for plaintiff.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P.C., for defendant.

Before: N.J. KAUFMAN, P.J., and J.H. GILLIS and CYNAR, JJ.

PER CURIAM.

Defendant appeals as of right from the trial court's order granting summary judgment in favor of plaintiff. On July 18, 1976, when plaintiff got into his vehicle and turned the ignition key, an explosive device which had been attached to the ignition mechanism by persons unknown was detonated, severely injuring plaintiff. The trial court concluded that plaintiff's injury occurred as a result of his operation of the vehicle and that he therefore was entitled to benefits as a matter of law pursuant to § 3105 of the no-fault act.

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 * * *."

Cases construing the phrase "arising out of the * * * use of a motor vehicle" uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213, 222; 290 NW2d 414 (1980), lv den 409 Mich. 919 (1980). Such 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 NW2d 42 (1975). While the statute does not necessitate a finding that the injury was caused directly and proximately by the use of the vehicle, causation cannot be extended to something distinctly remote. The sufficiency of the causal connection depends on the facts of each case. Williams v Citizens Mutual Ins Co of America, 94 Mich. App. 762, 764-765; 290 NW2d 76 (1980).

These principles have been applied by several panels of this Court to deny recovery of no-fault benefits to the victim of an assault which occurred in or near an automobile. See A & G Associates, Inc v Michigan Mutual Ins Co, 110 Mich. App. 293; 314 NW2d 799 (1981), Higginbotham, supra, 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), and Kangas, supra.

We believe that there was an insufficient causal relationship between plaintiff's use of the vehicle and his injuries. The fact that the explosive device was set in plaintiff's vehicle rather than some other location was a mere fortuity. Even though plaintiff's act of turning the ignition key detonated the explosion, the explosive device, rather than the automobile, was the true instrumentality of the injury. The injury clearly was not foreseeably identifiable with the normal use, maintenance, and ownership of the vehicle. Kangas, supra, Higginbotham, supra.

The order of summary judgment in favor of plaintiff is reversed, and summary judgment is entered in favor of defendant.

Reversed.

CYNAR, J. (dissenting).

I agree with the trial court that there was a sufficient causal relationship between plaintiff's use of the vehicle and his injuries. This case is distinguishable from the cases in which benefits were denied because the plaintiff's presence in the vehicle at the time of the injury was a mere fortuity. See, e.g., Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213; 290 NW2d 414 (1980) (the insured's husband forced her to the curb, trapped her in her car, and shot her several times with a revolver), Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1; 235 NW2d 42 (1975) (passengers of the insured's vehicle assaulted a pedestrian), O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 NW2d 583 (1979) (the insured was shot by an assailant while she was sitting in her vehicle). In these cases, the injury could have resulted whether the plaintiff was using the vehicle or not. The vehicle was more than merely the site of the injury. Under the facts in this case, turning the ignition key must be identified with the normal manner of starting a vehicle. There was a direct causal relationship between the use of the motor vehicle and plaintiff's injuries.

I would affirm.