Bourne v. Farmers Insurance Exchange

534 N.W.2d 491, 449 Mich. 193

• Court: Michigan Supreme Court
• Decided: July 6, 1995
• Docket: 98820, (Calendar No. 17)
• Status: Published

Opinions

Riley, J.

In this case we are called upon to determine whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle. Specifically, we must decide whether plaintiff’s injuries to his face and ankle from the assailant’s blow were the type of injuries that arise out of the normal use of a vehicle. Because this injury was a physical attack inflicted on plaintiff, we conclude that it did not arise out of the use of the vehicle as a motor vehicle.

With regard to the matter of attorney fees, we find that there has been enough controversy over the scope of the phrase "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” in MCL 500.3105(1); MSA 24.13105(1), that plaintiff’s claim was not frivolous. Hence, we reverse the decision of the Court of Appeals with regard to whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle, and we affirm regarding costs and attorney fees.

i

On the evening of June 26, 1989, plaintiff entered his parked car and found two men in the back seat. These men forced him at gunpoint to drive to a church parking lot a mile away. One of the assailants then struck him in the face with his fist and threw him to the ground. The blow was so severe that plaintiff’s cheekbone, nose, and septal area were broken. When plaintiff hit the ground, he also broke his ankle. The assailants then drove away in the car. Subsequently, plaintiff filed a claim with defendant, his no-fault insurer. Defendant readily compensated plaintiff for the loss of his vehicle, but refused compensation for his personal injuries.

On May 30, 1990, plaintiff commenced this lawsuit, alleging that his injuries were compensable under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Defendant filed a motion for summary disposition, contending that plaintiff ’s injuries did not arise out of the ownership, operation, maintenance, or use of the motor vehicle as a motor vehicle. On August 7, 1990, the court ruled in favor of defendant, finding that plaintiff’s injuries did not arise out of the ownership or use of the motor vehicle. The court did, however, deny defendant costs and attorney fees on the ground that plaintiff’s claim was not frivolous. The Court of Appeals reversed the grant of summary disposition and affirmed the denial of costs and attorney fees.¹ Defendant petitioned this Court for leave to appeal, which was granted on December 29, 1994.²

ii

In this case, defendant was granted summary disposition pursuant to MCR 2.116(0(10), which provides that "[ejxcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” When reviewing such a motion, we "consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing, the motion, and grant the benefit of any reasonable doubt to the opposing party.” Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). Only if there is no genuine issue of any material fact is the moving party entitled to judgment as a matter of law. Stevens v McLouth Steel Products Corp, 433 Mich 365; 446 NW2d 95 (1989).

A

We find that summary disposition was appropriate. MCL 500.3105(1); MSA 24.13105(1) provides that an insurer is required to pay benefits where accidental bodily injury arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.

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.

The Court of Appeals had an opportunity to apply this rule in the present case.

We believe that there is a direct causal relationship between the use of a motor vehicle as a motor vehicle and injuries sustained during a so-called carjacking. The physical assault only occurs because the assailants wish to take possession of the vehicle. Unfortunately, such incidents are nowadays within the ordinary risks of driving a motor vehicle. [203 Mich App 341, 344; 512 NW2d 80 (1994).]

We are persuaded, however, that the Court of Appeals reached the wrong conclusion.

Plaintiff’s injuries arose out of the blows inflicted on him by a carjacker. Hence, plaintiff suffered a personal physical attack. Generally, such an attack is not compensable. See, e.g., 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), and O’Key v State Farm Mut Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979).

In fact, this Court recently came to this very conclusion in Thornton v Allstate Ins Co, 425 Mich 643, 661; 391 NW2d 320 (1986). In Thornton, a taxicab driver picked up a customer. As he began to drive away from the curb, the customer drew a gun, shot him in the neck, and robbed him of his money. The injured driver then filed suit against the insurer of the cab, claiming that his injuries arose out of the use of the cab. However, this Court found:

While the injuries [a gunshot wound to the neck] were perhaps "foreseeably identifiable” with the occupational or commercial use of a motor vehicle as a taxicab, the relation of the gunshot wound to the functional use of a motor vehicle as a motor vehicle was at most merely "but for,” incidental, and fortuitous.

This Court arrived at a similar result in Marzonie v ACIA, 441 Mich 522, 534; 495 NW2d 788 (1992), in which the plaintiff claimed that his injuries arose out of the use of his car. Marzonie had had an argument with someone that ended when the person began shooting at Marzonie’s car. Marzonie was hit and seriously injured. This Court found that the insurance company had no duty to cover Marzonie because his injuries did not arise out of the use of this motor vehicle as a motor vehicle.

In the present case, the testimony of the plaintiff clearly demonstrates that shots were fired during the continuation of an argument that had begun before the chase. The involvement of the automobiles was incidental and fortuitous. Although Mr. Oaks says that the plaintiff’s car was moving toward him at a "creep,” the shooting arose out of a dispute between two individuals, one of whom happened to be occupying a vehicle at the moment of the shooting.

Similarly, in Auto-Owners Ins Co v Rucker, 188 Mich App 125, 127; 469 NW2d 1 (1991), plaintiff was a victim of a drive-by shooting.

In this case, the death arose from the firing of a shotgun. Although the vehicle made it easier for the criminals to approach the scene and to escape, its use was nonetheless incidental to the injury. One shudders to contemplate whether drive-by shootings have become foreseeable. It is, however, uncontestable that they are not identified with the normal use of a motor vehicle.

In Higginbotham, supra at 222, a woman was driving in her car when her estranged husband forced her to the side of the road with his vehicle. The husband then proceeded to shoot her numerous times while she was still in her car. The Court of Appeals found that "[a]n assault by an armed assailant upon the driver of a car is not the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle.”

Finally, in Shaw v Allstate Ins Co, 141 Mich App 331; 367 NW2d 388 (1985), a man and his wife were followed home by robbers. Before they could get out of their car, the robbers approached them and shot the man while he still sat in the car. The Court of Appeals found that his death did not arise out of the use of his vehicle as a motor vehicle.

This decision denying coverage, along with the others, makes sense in light of the fact that

[a]utomobile insurance spreads the risk of damages from automobile accidents among the insured population. The limitation on liability to damages "resulting from the ownership, maintenance or use of a covered auto” ensures that the risk spread is the risk of automobile accidents, and not all accidents, or more accurately, incidents, to which an automobile can be tied, however remotely. [Aetna Casualty & Surety Co v United States Fidelity & Guaranty Co, 806 F2d 302, 303 (CA 1, 1986).]

In the present case, plaintiff’s injuries did not arise out of the use of his vehicle as a motor vehicle.³ The carjacker simply struck plaintiff. Hence, plaintiff’s vehicle was at best the situs of the injury, which is not a sufficient condition to establish the requisite causal connection between the injury and the vehicle. Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 314; 282 NW2d 301 (1979).

The Court of Appeals, however, did find this connection and cited Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982), for support. In that case, an incendiary device was attached to the ignition of the plaintiff’s car. Unfortunately, the device exploded when the plaintiff attempted to start his car by turning on the ignition. This Court found that his injuries did arise out of the use of his car because the turning on of a car’s ignition is a normal activity associated with the use of a vehicle as a motor vehicle. This situation, however, is readily distinguishable from the facts in the present case, because plaintiff’s injuries, unlike the turning on of an ignition, were not required to use the vehicle.

The Court of Appeals also improperly focused on the intent of the assailant.

We believe that there is a direct causal relationship between the use of a motor vehicle as a motor vehicle and injuries sustained during a so-called carjacking. The physical assault only occurs because the assailants wish to take possession of the vehicle. [Bourne, supra at 344.]

As stated by this Court in Thornton and Marzonie, it is improper to use the intent of the assailant in order to create the causal connection. "We reject the focus that the Florida and Minnesota courts place upon the intent of the assailant as providing the requisite nexus between the injury and the use of the motor vehicle.” Thornton, supra at 660, n 10. Further, " 'the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle,’ ” not on " 'the intent of the assailant . . . .’ ” Marzonie, supra at 532, quoting 425 Mich 660, n 10.

Bourne’s injuries did not arise out of the use of his vehicle as a motor vehicle. Hence, the Court of Appeals erred in reversing the trial court’s granting of summary disposition on this issue.

B

Defendant also maintains that plaintiff’s suit was frivolous, and as a result it should be entitled to attorney fees and costs.

In addition, Farmers submits that the Court of Appeals opinion, for the most part, disregarded this Court’s opinions in Thornton and Marzonie and relied on three opinions (Gajewski, Saunders [v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983)] and Mann [v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981)]) which had already been distinguished from cases such as this one in Thornton and Shaw four or more years before the instant case was even filed.

Defendant is correct that if a claim is frivolous, attorney fees may be awarded. MCR 2.114(F) provides:

In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.

MCR 2.625(A)(2) provides:

In an action filed on or after October 1, 1986, if the "court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591; MSA 27A.2591.

In the present cáse, the Court of Appeals examined this issue and found

[w]ith respect to defendant’s issue on cross appeal, in light of our conclusion that the motion for summary disposition was improperly granted, it is clear that plaintiff’s claim was not without merit. Accordingly, the trial court properly denied defendant’s motion for costs and attorney fees. [Bourne, supra at 344.]

We are persuaded that the Court of Appeals reached the right conclusion. There has been much debate over the years regarding the scope of the phrase "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” in MCL 500.3105(1); MSA 24.13105(1). This fact is evidenced by the wealth of case law on this topic. Consequently, plaintiff’s claim was not frivolous and defendant was properly denied its costs and attorney fees.

hi

Plaintiff’s injuries arose out of a physical attack, which is directly akin to Thornton in which no causal connection was found by this Court when a cabdriver was shot in the neck while driving his car. We conclude that under the facts of this case there was not a sufficient causal connection between plaintiff’s injuries and the use of his motor vehicle as a motor vehicle to find liability on the part of defendant. Thus, there was no genuine issue with regard to defendant’s liability and summary disposition was properly granted by the trial court. We also find that there was sufficient confusion in this area of law so as to prevent plaintiff’s claim from being frivolous. Consequently, defendant was properly denied attorney fees and costs. Thus, the Court of Appeals decision reversing the trial court’s granting of summary disposition in favor of defendant is reversed, and its decision denying defendant attorney fees is affirmed.

Brickley, C.J., and Cavanagh, Boyle, Mallett, and Weaver, JJ., concurred with Riley, J.

1 203 Mich App 341; 512 NW2d 80 (1994).

2 447 Mich 1048.

3 Although plaintiff cites Saunders v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983), and Mann v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981), for support, we are unpersuaded. We recognize that our citing of these cases in Thornton has created some confusion, however, we do not agree that assaults are part of "the normal risk” of motoring. Nevertheless, we are prepared to examine cases employing this methodology if and when we are presented with a case that raises the issue squarely.