Shellenberger v. Insurance Co. of North America , 182 Mich. App. 601 ( 1990 )

Holbrook, Jr., P.J.

Plaintiff appeals from an order of summary disposition dismissing his claim for personal protection insurance benefits on a no-fault policy issued by defendant to plaintiff’s employer. We affirm.

The facts are essentially undisputed. Plaintiff, a truck driver, started the truck engine in preparation for a delivery. As he reached to move a briefcase within the interior of the truck, he ruptured a lumbar disc, thereby injuring his back. His claim for wage loss benefits resulted from that injury.

Although the circuit court specified that summary disposition was grounded in MCR 2.116(C)(8), it is clear that it relied on facts extraneous to pleadings in deciding the motion. Therefore, we will review the summary disposition as if it were granted pursuant to MCR 2.116(C)(10). Under that subrule, summary disposition should be granted if it is determined that, upon giving the nonmoving party the benefit of every reasonable doubt, it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988), lv den 431 Mich 877 (1988).

The issue to be decided in this appeal is whether plaintiff’s claim to personal protection insurance benefits meets the threshold requirement of an "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,” which is set forth in MCL 500.3105(1); MSA 24.13105(1). This statutory standard speaks to the requisite causal connection between the motor vehicle and the ensuing injury. This standard was explained in Thornton v Allstate Ins Co, 425 Mich 643, 659-660; 391 NW2d 320 (1986):

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, 640-641; 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. Without a relation that is more than "but for,” incidental, or fortuitous, there can be no recovery of pip benefits.

Applying this standard of causation, the Court in Thornton held that gunshot-inflicted injuries sustained inside a taxicab by its driver in the course of an armed robbery perpetrated by a passenger did not give rise to the insurer’s liability for benefits.

Under the facts demonstrated in this case, we find ourselves in agreement with the circuit court. It was a mere fortuity that plaintiff’s injury occurred as he was sitting in the truck. The particular setting of the truck suggests nothing specific to its operation or use as a motor vehicle that played a part in the injury.

In an effort to avoid the conclusion that the truck played no greater role than providing a site for the accident to occur, plaintiff points out that the briefcase contained documents pertaining to the truck’s shipment and further suggests that the configuration of the truck’s interior occasioned his original placement of the briefcase and the subsequent need to move the briefcase. Plaintiff cites Perryman v Citizens Ins Co of America, 156 Mich App 359; 401 NW2d 367 (1986), lv den 428 Mich 874 (1987), where another panel of this Court reversed summary judgment for the insurer and held that the cramped configuration and lack of lighting in the interior of a van may have been a contributing cause to the accidental discharge of a gun during its unloading from the van. Thornton was deemed "inapposite” because of the involvement of physical characteristics of the van in the accident. Perryman, supra, p 366.

We are not persuaded that the test and underlying rationale of Thornton should be so readily discarded. In the instant case, it may have been necessary for plaintiff to carry the briefcase in the fulfillment of his job duties as a truck driver, but it does not follow that those duties were congruent with the operation or use of the truck as a motor vehicle. Similarly, moving the briefcase by reason of the configuration of the interior of the truck cannot be said to result from some facet particular to the normal functioning of a motor vehicle. The need to make similar movements in order to reach for a briefcase routinely occurs in offices, airports, homes, conference rooms, courtrooms, restaurants, and countless other settings where no-fault insurance does not attach. The fact that plaintiff’s movement in reaching for the briefcase occurred in the interior of the truck does not transform the incident into a motor vehicle accident for no-fault purposes. See also Krause v Citizens Ins Co of America, 156 Mich App 438, 440; 402 NW2d 37 (1986) (accidental discharge of gun placed on top of car; held, summary disposition dismissing claim for pip benefits affirmed); Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 805-806; 420 NW2d 877 (1988), lv den 431 Mich 862 (1988) (plaintiff fell from bed of truck used to position ladder against a house; held, judgment of no cause of action dismissing claim for pip benefits affirmed). See also Michigan NR Co v Auto-Owners Ins Co, 176 Mich App 706; 440 NW2d 108 (1989).

Affirmed.

Sawyer, J., concurred.