Marzonie v. Auto Club Ins. Ass'n

495 N.W.2d 788, 441 Mich. 522

• Court: Michigan Supreme Court
• Decided: December 30, 1992
• Docket: Docket 93152
• Status: Published

Opinions

Per Curiam.

The plaintiff was shot while occupying a motor vehicle. The circuit court awarded personal protection insurance benefits, and the Court of Appeals affirmed. 193 Mich App 332; 483 NW2d 413 (1992). Because the plaintiff’s injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, we reverse the judgments of the circuit court and the Court of Appeals, and we remand this case to the circuit court for entry of a judgment in favor of the defendant.

i

As the plaintiff and a passenger were driving home from a party, they became embroiled in a dispute with three occupants of a vehicle driven by Vernon Oaks. After words were exchanged, the plaintiff began to pursue the Oaks vehicle at a high rate of speed. As the plaintiff drove, his passenger threw beer bottles at the Oaks vehicle.

Mr. Oaks drove home, where he and his friends went inside. Moments later, he emerged, alone, bearing a shotgun.

Meantime, the plaintiff and his passenger arrived in their car and stopped near the Oaks home. The passenger said that the plaintiff did not move his car forward when he saw Mr. Oaks emerge from his house with a shotgun.¹ However, Mr. Oaks said that the car was moving slowly toward him:

It was rolling towards me, just in just like a real creep. It wasn’t, it wasn’t driving, but it was just like in a creep.

As the car continued "at a real slight creep,” Mr. Oaks tried to fire a shot at the car. Nothing happened when he pulled the trigger, however, so he "reracked the gun,” aimed toward the grill of the car, and fired again. Mr. Oaks later explained that he had intended to stop the car, not shoot the driver.

It appeared to Mr. Oaks that he had missed the plaintiff’s car completely. In fact, he had shot the plaintiff in the face and neck, inflicting permanent and serious injury.²

An instant after the shooting, the plaintiff’s car began backing up. Traveling in reverse, it soon hit a curb, and the passenger noticed that the plaintiff was unconscious. Taking the wheel, the passenger drove him to the hospital.

As the plaintiff’s car was driving away, Mr. Oaks attempted a third time to fire a shot, but again his gun would not discharge. He tried a fourth time, and the gun fired. The plaintiff says that this shot hit the fleeing car.

Mr. Oaks testified that he initially had fired in order to stop the plaintiff’s car and because he was angry at the plaintiff’s presence. Asked why he shot at the escaping car, he said that he was upset and wanted to stop the car. Mr. Oaks explained:

Q. What was your purpose in shooting the first time?

A. To stop the car.

Q. To stop it from coming toward you?

A. Stop it, period. I didn’t understand why if I have a gun and you are in your car and you are in front of me and I have it up on my shoulder, I don’t understand why you are still coming at me. I didn’t, I didn’t know what he was doing in the car. I didn’t know if he was reaching for a gun or what. I didn’t know what he was going to do. A lot of things was [sic] going through my mind. I didn’t' know what he was going to do.

Q. So you didn’t want to take any chances, so you blasted first, is that right?

A. The car was coming at me and I shot the car.

Q. How did you think that would stop the car?

A. Excuse me?

Q. How did you think that that would stop the car?

A. Well, if you put a shot into the grill of a car it’s going to blow the radiator, possibly the tank, it’s going to overheat. It will stop the car.

Q. That was your idea?

A. Yeah.

Q. All right. But you didn’t know you hit anything?

A. No. I thought I missed the whole car completely.

Q. All right, and for all you knew in the second shot when you ran down, you said you missed it, too?

A. At the, at the time, yes. At the time I thought I had missed that, too.

Q. Okay, and what was your purpose in shooting the second time?

A. To stop the car. That’s why I aimed at the back tire and shot at the back tire.

Q. Why did you want to stop the car the first time?

A. Why would I want these people in my neighborhood, into my house and terrorizing my house?

Q. That’s the reason you stopped it the first time, it was going away from you the second time, why did you shoot it that time?

A. The same intention, I wanted to stop the car.

Q. Why did you want to stop the car if it was going away from you and not endangering your neighborhood or you?

A. These people had followed me. I felt that my privacy had been violated.

Q. You were angry?

A. No, not angry, upset. I was upset, confused.

Q. You weren’t angry?

A. Not angry, no, but I felt I was upset.

Q. What was upset, how do you define "Upset”?

A. I feel that there is a difference between angry and upset because upset was, it was, angry would be wanting to get back at you, okay? I didn’t want to get back at them. I just wanted, I wanted something done, you know, not to him or against — not. . . [.]

Q. Take your time.

A. I’m trying to word this. I didn’t feel that he was right in coming after me, okay?

Q. Okay.

A. So I felt that something should be done towards him not as, as, as . . . [.] As far as, okay, if I stopped the car then the police could be called and then something could be done about it, okay?

ii

The plaintiff sought personal protection (first-party) insurance benefits from the insurer.³ After the demand was refused, the plaintiff filed the present suit.

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, subject to the provisions of this chapter.

In his complaint, the plaintiff alleged that his injuries arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. The defendant insurer denied the allegation, and later moved for summary disposition. In an order denying the defendant’s motion, the circuit court explained:

The court finds that the case of Jones v Allstate Ins Co, 161 Mich App 450 [411 NW2d 457] (1987), is controlling and that it is necessary that a jury determine the factual issue of whether the assailant, Vernon Oaks, intended to shoot either plaintiff Marzonie or Marzonie’s car.

This matter was tried before a jury. In accordance with the court’s earlier ruling, the sole question submitted to the jury was whether Mr. Oaks intended to shoot the plaintiff, or only to shoot the plaintiff’s vehicle. After deliberating less than half an hour, the jury returned its finding that "Vernon Oaks intended to shoot only the automobile of Michael Marzonie . . . .”

Had the jury found that Mr. Oaks intended to shoot the plaintiff, judgment would have been entered for the defendant. When the jury instead found that Mr. Oaks intended to shoot the plaintiff’s car, the circuit court was prepared to enter judgment in favor of the plaintiff. Before entry of judgment for the plaintiff, the defendant moved unsuccessfully for entry of a judgment in its favor or, alternatively, for a new trial. The motion was denied.

The Court of Appeals affirmed. Citing Jones, and saying that because the plaintiff’s injuries "stemmed from the functional character of the motor vehicle,” the Court of Appeals concluded that the plaintiff was entitled to first-party benefits. 193 Mich App 337.

Writing in dissent, Judge Mackenzie said that "plaintiff was injured as a result of his dispute with Oaks, and plaintiff’s automobile merely served as the target of Oaks’ gunfire and the situs where plaintiff was shot.” Id. at 339.

The defendant has applied for leave to appeal the judgment of the Court of Appeals.

hi

Throughout the time that no-fault automobile insurance has existed in Michigan, cases have arisen involving insured persons who were shot or otherwise assaulted while occupying motor vehicles. The basic rule, correctly developed by the Court of Appeals, is stated in O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979). There, the plaintiff was sitting in his parked car, which was idling. An individual opened the passenger door and pointed a gun at him. The plaintiff put the car in reverse, and accelerated. The assailant fired two or three shots into the car, striking the plaintiff.

The Court of Appeals found in O’Key that the plaintiff’s injury did not arise out of the ownership, operation, maintenance, or use of an automobile:

[We] conclude that the injuries sustained by plaintiff did not arise out of the ownership, operation, maintenance or use of the automobile. Although plaintiff was an occupant of an automobile at the time he sustained the injury, this is not a controlling consideration in resolving this issue. The automobile was not the instrumentality of the injury. Rather, its role in this matter was incidental. Plaintiff’s occupancy of the car was a fortuity, in no way connected with the assault. Nor is an assault by an armed assailant upon the driver of a car the type of conduct that is "reasonably identifiable” with the use of a car. Since the injury in this case did not arise out of the ownership, operation, maintenance or use of the car, the trial judge properly granted defendant’s motion for summary judgment in this case. [89 Mich App 530.]

This Court addressed a similar situation in Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). The plaintiff sought first-party benefits for injuries suffered during an armed robbery that was committed by a passenger of his taxicab. This Court denied benefits to the plaintiff, explaining:

In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited no-fault pip benefits to injuries arising out of the "use of a motor vehicle as a motor vehicle.” In our view, this language shows that the Legislature was aware of the causation dispute and chose to provide coverage only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for.” The involvement of the car in the injury should be "directly related to its character as a motor vehicle.” Miller v Auto-Owners [Ins Co, 411 Mich 633; 309 NW2d 544 (1981)]. Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle.10 Without a relation that is more than "but for,” incidental, or fortuitous, there can be no recovery of pip benefits.

The connection in this case between the debilitating injuries suffered by Mr. Thornton and the use of the taxicab as a motor vehicle is no more than incidental, fortuitous, or "but for.” The motor vehicle was not the instrumentality of the injuries. Cf. Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982). The motor vehicle here was merely the situs of the armed robbery — the injury could have occurred whether or not Mr. Thornton used a motor vehicle as a motor vehicle. Cf. Saunders v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983), and Mann v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981). The relation between the functional character of the motor vehicle and Mr. Thornton’s injuries was not direct — indeed, the relation is at most incidental.

10 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. See generally Government Employees Ins Co v Novak [453 So 2d 1116 (Fla, 1984)], and Meric v Mid-Century Ins [343 NW2d 688 (Minn App, 1984)]. Under our no-fault legislation, intentionality is relevant where specified by the statute. See, e.g., MCL 500.3105(4); MSA 24.13105(4). However, for purposes of determining whether the requisite causation exists under § 3105(1), the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle.

[425 Mich 659-660.]

This passage includes references to Saunders v DAIIE and Mann v DAIIE, supra.4 In Saunders, a passenger in a moving automobile was seriously injured when struck by a projectile that flew through an open window. The Court of Appeals said that "[s]uch an assault is, unfortunately, part of the normal risk of operating a motor vehicle and it must be considered foreseeably identifiable with the normal use of the vehicle.” 123 Mich App 572.

The plaintiff in Mann was injured when a person threw a stone at the plaintiff’s vehicle from an overpass as the plaintiff was driving on a highway. Explaining that "[i]n 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,” the Court of Appeals concluded that "[t]here is a direct causal relationship between the driving of the vehicle and the assault.” 111 Mich App 639.

In Jones, the Court of Appeals inferred from Saunders and Mann the principle that an insured may recover where an assault is aimed at a vehicle, not at a person. Because the shooter in Jones claimed to have been shooting at the insured’s car, the Court of Appeals reversed the summary judgment that the circuit court had entered in favor of the insurer.

However, Jones marked a departure by the Court of Appeals from the principles stated in Thornton. First-party benefits are available under MCL 500.3105(1); MSA 24.13105(1) where the involvement of the car in the injury is "directly related to its character as a motor vehicle.” 425 Mich 659. The connection between the injuries and the use of the motor vehicle must be "more than incidental, fortuitous, or 'but for.’ ” Id. Further, "the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle,” not be upon "the intent of the assailant . . . .” Id., 425 Mich 660, n 10.

Other post -Thornton gunshot cases are illustrative. In Kreighbaum v Automobile Club Ins Ass’n, 170 Mich App 583; 428 NW2d 718 (1988), hunters shot at a deer standing near a road. The animal ran onto the road, and the plaintiff slowed her automobile to avoid a collision with the deer. The hunters fired again, shooting through the door of the plaintiff’s car, causing serious injury. The Court of Appeals explained the similarity to Saunders and Mann:

This case is similar to two recent Court of Appeals cases where the plaintiffs recovered no-fault benefits based on injuries caused by rocks or other objects being thrown at or dropped on cars, intentionally or otherwise, as the cars proceeded down the expressway. Mann v DAIIE, 111 Mich App 637, 639-640; 314 NW2d 719 (1981), lv den 414 Mich 903 (1982); Saunders v DAIIE, 123 Mich App 570, 572; 332 NW2d 613 (1983). Here, plaintiff was driving her car down a rural road on the opening day of deer hunting season. When plaintiff, behaving as any prudent driver would, slowed her car to avoid a collision when a deer ran onto the road, the car caused her to be put in a position where she could be hit by the hunters’ gunfire. Hence the causal connection between plaintiff’s injuries and the ownership, maintenance, or use of her vehicle was not merely fortuitous or incidental, and the trial court erred when prohibiting plaintiff’s recovery under the no-fault act by granting summary disposition in favor of defendant. [170 Mich App 585-586.]

One may contrast Auto-Owners Ins Co v Rucker, 188 Mich App 125; 469 NW2d 1 (1991). In Rucker, a young woman standing in front of a friend’s house was killed during a drive-by shooting. Her family sought no-fault benefits. The Court of Appeals said that benefits were owed only where "[t]he injury must be foreseeably identifiable with the normal use of the vehicle.” Id. at 127. Because the use of the automobile was only "incidental” to this shooting, the Court of Appeals upheld a summary disposition in favor of the insurer.

IV

Dissenting in the present case, Judge Mackenzie summarized Thornton, and then explained:

This case presents a similar situation. As in Thornton, the inherent nature or the functional character of plaintiff’s motor vehicle did not cause his injuries. Instead, plaintiff was injured as a result of his dispute with Oaks, and plaintiff’s automobile merely served as the target of Oaks’ gunfire and the situs where plaintiff was shot. See 425 Mich 660-661.

The relationship between the functional character of plaintiff’s automobile and his injuries is too indirect to satisfy the statutory requirement that the injuries "aris[e] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” Because a motor vehicle was not the cause of plaintiff’s injuries, he was not entitled to recover no-fault benefits. [193 Mich App 338-339.]

We agree that the plaintiff was not entitled to recover no-fault benefits. As we observed in Thornton, the focus is not on the intent of the assailant —instead, "the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle.” 425 Mich 660, n 10.

Saunders and Mann are unlike Thornton, in that the hazard experienced by those insureds was directly tied to their use of a motor vehicle as a motor vehicle. The relationship between that use and the hazard is the key to Saunders and Mann, not the subjective intent of the unidentified assailants.⁵

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. Unlike the occurrences in Mann, Saunders, and Kreighbaum, the harm that befell this plaintiff was not within the ordinary risks of driving a motor vehicle.

We therefore reverse the judgments of the circuit court and the Court of Appeals, and we remand this case to the circuit court for entry of a judgment in favor of the defendant.⁶ MCR 7.302(F)(1).

Cavanagh, C.J., and Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred._

1 The plaintiff had no memory of the events that took place at the Oaks home.

2 Mr. Oaks was originally charged with assault with intent to murder, and possession of a firearm during the commission of a felony. He pleaded guilty of a reduced charge of careless discharge of a firearm, and spent nine months in jail.

3 At the time these events took place, the plaintiff was driving an automobile owned by his mother, who had purchased an insurance policy from the defendant insurer. While the insurer denies liability in this case, it does not deny that the plaintiff was insured under his mother’s policy. See MCL 500.3114; MSA 24.13114.

4 Among the arguments presented by the parties in this case is a dispute concerning the significance in Thornton of the "Cf.” citation of Saunders and Mann. The abbreviation is defined in this fashion:

Cf. An abbreviated form of the Latin word confer, meaning "compare.” Directs the reader’s attention to another part of the work, to another volume, case, etc., where contrasted, analogous, or explanatory views or statements may be found. [Black’s Law Dictionary (5th ed), p 208.]

In Thornton, the abbreviation "Cf.” preceded cases that were being contrasted.

5 We caution that an assailant’s intent is not completely irrelevant in every situation. For instance, suppose the events that occurred in Saunders and Mann had been caused by assailants who lay in wait for those particular victims, intending to assault them by launching projectiles at them. In this opinion, we need not reach the question whether such injuries would arise "out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.”

6 The motion for leave to file a brief amicus curiae is granted.