Smith v. Community Service Insurance , 114 Mich. App. 431 ( 1982 )

114 Mich. App. 431 (1982) 319 N.W.2d 358

SMITH
v.
COMMUNITY SERVICE INSURANCE COMPANY

Docket No. 56233.

Michigan Court of Appeals.

Decided March 19, 1982.

White, Spaniola, Knudsen, Stariha & Potuznik, P.C. (by Richard K. Reider), for plaintiff.

Cholette, Perkins & Buchanan (by Anthony A. Derezinski), for defendant.

Before: R.B. BURNS, P.J., and D.F. WALSH and MacKENZIE, JJ.

PER CURIAM.

Plaintiff is the insured and defendant is the insurer under a policy of no-fault automobile insurance. Plaintiff was injured while riding on an inner tube which was being towed by the insured vehicle. As the vehicle proceeded down the road, the inner tube, attached by a rope, was swerving from side to side. It went up a bank of plowed snow, flipped over, and in the resulting impact plaintiff was injured.

On June 19, 1980, plaintiff filed this action for declaratory relief seeking a determination that defendant was liable to pay personal injury protection (PIP) benefits to her. At issue in this appeal is whether the trial court erred in finding that the injury did not arise "out of the ownership, maintenance or use of a motor vehicle as a motor vehicle", within the meaning of MCL 500.3105; MSA 24.13105. That statute provides:

"Sec. 3105. (1) 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 term "arising out of" does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Williams v Citizens Mutual Ins Co of America, 94 Mich. App. 762, 764-765; 290 NW2d 76 (1980).

This Court in Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213; 290 NW2d 414 (1980), lv den 409 Mich. 919 (1980), recently summarized the standard for determining whether an injury arises out of the use of 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. See Anno: Automobile liability insurance: what are accidents or injuries `arising out of the ownership, maintenance, or use' of insured vehicle, 89 ALR2d 150. Such causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975)." DAIIE v Higginbotham, supra, 222.

This rule has been applied numerous times to deny insurance benefits to a person injured by another person or instrumentality, even though the injury occurred in or near a motor vehicle. Ciaramitaro v State Farm Ins Co, 107 Mich. App. 68; 308 NW2d 661 (1981), DAIIE v Higginbotham, supra, O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 NW2d 583 (1979), lv den 406 Mich. 1014 (1979), Hamka v Automobile Club of Michigan, 89 Mich. App. 644; 280 NW2d 512 (1979), Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1; 235 NW2d 42 (1975), Dowdy v Motorland Ins Co, 97 Mich. App. 242; 293 NW2d 782 (1980), Richland Knox Mutual Ins Co v Kallen, 376 F2d 360 (CA 6, 1967).

In each of the cases denying PIP benefits based on an insufficient causal connection between the injury and the vehicle, the injury was inflicted upon the claimant as a result of some independent force (either a person or an instrumentality). The fact that the injury occurred in or near a motor vehicle was a mere fortuity.

In this case, however, the motor vehicle itself was the instrumentality of the plaintiff's injury. At the time of the accident the vehicle was being driven down a public roadway which is a use which is certainly consistent with its inherent nature and in accordance with its intended purpose. It was being used, therefore, as a motor vehicle and as a motor vehicle would normally be used. The fact that it may not have been contemplated, as the defendant argues, that the operator of a motor vehicle would pull someone in an inner tube over a snow-covered road, or the fact that it may have been negligent or even illegal to do so, is no defense to coverage under the provisions of the no-fault act. The act is certainly intended to compensate for injuries sustained as the direct result of negligent or unexpected use of a motor vehicle so long as the vehicle is being used "as a motor vehicle".

To be entitled to PIP benefits a claimant must establish a causal connection, which is more than fortuitous, incidental or but for, between the use of the motor vehicle and the injury sustained. DAIIE v Higginbotham, supra. We find that such a causal connection is established under the facts of this case. An injury which directly results from the force of a motor vehicle which is being driven down a roadway in the normal manner is an injury which arises "out of the * * * operation * * * or use of a motor vehicle as a motor vehicle * * *." The trial court erred in granting summary judgment to the defendant.

Reversed. Costs to appellant.