Koole v. Michigan Mutual Insurance , 126 Mich. App. 483 ( 1983 )

126 Mich. App. 483 (1983) 337 N.W.2d 369

KOOLE
v.
MICHIGAN MUTUAL INSURANCE COMPANY

Docket No. 59039.

Michigan Court of Appeals.

Decided June 21, 1983.

Lilly & Domeny, P.C. (by Joseph A. Byrne, Jr.), for Michigan Mutual Insurance Company.

Early, Starbuck & Lennon (by Harold E. Fisher, Jr.), for Kalamazoo Plumbers & Steamfitters Insurance Fund, Local # 337.

Before: M.J. KELLY, P.J., and R.M. MAHER and R.L. TAHVONEN,^[*] JJ.

R.L. TAHVONEN, J.

The issue in this case is simply whether plaintiff is entitled to first party no-fault benefits from his insurer, Michigan Mutual. The trial court found that he was and granted him summary judgment. Michigan Mutual appeals as of right. We affirm.

The parties have stipulated to the facts. On October 25-26, 1979, plaintiff was driving his pickup truck. The truck had an attached camper. Plaintiff pulled into a rest area, went into the camper and went to sleep. When he awoke the next day, he lit a match. Gas escaping from the camper furnace pilot light ignited, injuring him.

To recover first party benefits a no-fault claimant must prove "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle". MCL 500.3105; MSA 24.13105. The injury "does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle" unless, inter alia, the "injury was sustained by a person while occupying * * * the vehicle". Formerly MCL 500.3106(c); MSA 24.13106(c), amended by 1981 PA 209, now MCL 500.3106(1)(c); MSA 24.13106(1)(c). The Supreme Court has noted that:

"The underlying policy of the parking exclusion is that * * * a parked car is not involved in an accident as a motor vehicle. It is therefore inappropriate to compensate injuries arising from its non-vehicular involvement in an accident within a system designed to compensate injuries involving motor vehicles as motor vehicles." Miller v Auto-Owners Ins Co, 411 Mich. 633, 641; 309 NW2d 544 (1981) (emphasis in original).

The three statutory exceptions to the parked car exclusion pertain to "injuries related to the character of a parked vehicle as a motor vehicle — characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents". 411 Mich. 640.

In this case, the stipulated statement of facts establishes that the injuries for which benefits are sought were sustained by the claimant while occupying a motor vehicle. The plaintiff therefore falls within the third exception to the § 3106 parked car exclusion and is not barred from recovery by that provision.

This finding — that recovery is not precluded by § 3106 — does not end our inquiry. For it is also necessary that the claimant establish that the injuries arose out of the "ownership, operation, maintenance or use of a motor vehicle as a motor vehicle". Section 3105. As Judge MAHER pointed out in Shinabarger v Citizens Mutual Ins Co, 90 Mich. App. 307, 315; 282 NW2d 301 (1979):

"[F]ulfillment of the requirements of § 3106 does not automatically result in liability. Even after the threshold of § 3106 is crossed, it must still be established that the injury arose out of the ownership, operation, maintenance or use of the motor vehicle."

The leading Michigan case addressing the nature of the causal relationship necessary between the use of a motor vehicle and injuries is Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1; 235 NW2d 42 (1975). In that case, coverage was sought for injuries to a pedestrian who was assaulted by occupants of the insured vehicle. The policy provided liability coverage for bodily injury sustained by any person "arising out of the ownership, maintenance or use of the owned automobile". In construing the scope of coverage afforded in light of the quoted language, this Court had occasion to canvas decisions from at least 18 other jurisdictions. At the end of that review, the Kangas panel noted:

"In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle." Kangas, supra, p 17.

A wealth of subsequent case law has utilized this language from Kangas in discussing the nature of the relationship between the vehicle and injury required by § 3105.

For example, benefits have been denied where the vehicle merely happened to be the site of an assault that could as well have occurred elsewhere. O'Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 NW2d 583 (1979); Hamka v Automobile Club of Michigan, 89 Mich. App. 644; 280 NW2d 512 (1979); DAIIE v Higginbotham, 95 Mich. App. 213; 290 NW2d 414 (1980); Ciaramitaro v State Farm Ins Co, 107 Mich. App. 68; 308 NW2d 661 (1981); A & G Associates, Inc v Michigan Mutual Ins Co, 110 Mich. App. 293; 312 NW2d 235 (1981). Compare Mann v DAIIE, 111 Mich. App. 637; 314 NW2d 719 (1981) (rock dropped or thrown off overpass onto plaintiff's vehicle injuring him as he was driving on Detroit expressway; benefits allowed). Likewise, benefits have been denied where the involvement of the vehicle is distinctly remote from the claimant's loss or injuries. Williams v Citizens Mutual Ins Co of America, 94 Mich. App. 762; 290 NW2d 76 (1980) (mother learned of daughter's fatal car accident and sought lost wages and psychiatric care costs); Ricciuti v DAIIE, 101 Mich. App. 683; 300 NW2d 681 (1980) (motorcycle skidded on wet license plate lying on expressway off-ramp). Similarly, coverage has been denied where the injuries were not foreseeably related to or identified with the normal use of a vehicle. Block v Citizens Ins Co of America, 111 Mich. App. 106; 314 NW2d 536 (1981); King v Aetna Casualty & Surety Co, 118 Mich. App. 648; 325 NW2d 528 (1982) (both cases involving claimants who slipped and fell on the ice while they were neither entering nor alighting from their motor vehicles).

We are of the view that the plaintiff's vehicle in this case provided more than merely the incidental situs of an injury that could as well have occurred elsewhere. The camper furnace, an attached motor vehicle accessory, was itself the instrumentality causing the injury. Moreover, the involvement of the vehicle cannot be viewed as "distinctly remote" from plaintiff's injury, regardless of whether "remoteness" is considered with reference to time, location or sequence of events. Finally, the injuries sustained by the plaintiff here are foreseeably identifiable with the normal use of this motor vehicle — a pickup truck with attached camper — as a motor vehicle. While it is true that the obvious and primary purpose of a motor vehicle is to provide transportation, we cannot say that other uses are not both normal and foreseeable. Specifically, we are persuaded that use of this vehicle for camping or sleeping constituted normal and foreseeable use as a motor vehicle and that such use properly encompassed operation of the gas-fueled heater or furnace. In short, the required causal nexus between the use of this motor vehicle as a motor vehicle and plaintiff's injuries has been established. The trial court properly granted summary judgment in plaintiff's favor in light of the agreed facts.

Affirmed, costs to appellee.

M.J. KELLY, P.J., concurred.

R.M. MAHER, J., concurred in result only.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.