Denning v. Farm Bureau Insurance Group

M. J. Kelly, P.J.

(concurring). I concur in result only as I do not believe there is any need to depart from prior case law in deciding this case.

An injury is compensable under Michigan’s no-fault act if (1) there is a causal connection between the automobile and the injury that is more than fortuitous, incidental or but for, and (2) the injury is foreseeably identifiable with the normal use of an automobile. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975), lv den 395 Mich 787 (1975). See also Smith v Community Service Ins Co, 114 Mich App 431, 433; 319 NW2d 358 (1982), lv den 417 Mich 867 (1983); Ciaramitaro v State Farm Ins Co, 107 Mich App 68, 69; 308 NW2d 661 (1981), lv den 413 Mich 861 (1982); Dowdy v Motorland Ins Co, 97 Mich App 242, 249; 293 NW2d 782 (1980); Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213, 222; 290 NW2d 414 (1980), lv den 409 Mich 919 (1980), and O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526, 530; 280 NW2d 583 (1979), lv den 406 Mich 1014 (1979).

As I read it, the majority opinion in this case creates an additional inquiry or test in determining whether an injury is compensable under no-fault: "if the injury can only occur in a motor *790vehicle there is coverage under the no-fault statute”. Contrary to the majority’s view, neither Mann v Detroit Automobile Inter-Ins Exchange, 111 Mich App 637; 314 NW2d 719 (1981), lv den 414 Mich 903 (1982), nor Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982) (adopting Judge Cynar’s dissenting opinion from 112 Mich App 59; 314 NW2d 799 [1981]) provides precedent for this new inquiry. In both Mann and Gajewski, the central issue was whether the causal connection between the automobile and the injury was more than incidental or fortuitous. In Mann, the Court held that the injury occurred only because the insured was driving his automobile under a highway overpass. In Gajewski, Judge Cynar held that the automobile was more than merely the site of the injury.

In this case, we must determine whether the plaintiff has sufficiently pled a causal connection between Mr. Denning’s death and the automobile that is more than fortuitous or incidental. GCR 1963, 117.2(1). The facts in this case are not in dispute and show that Mr. Denning was transporting a weed killer herbicide in his car when he became ill as a result of inhaling the herbicide fumes concentrated in the cab of his vehicle. Mr. Denning’s automobile ran off the road, struck a tree, and turned over. He died as a result of arteriosclerotic cardiovascular disease which was aggravated by inhalation of the fumes. I believe these facts as pled by the plaintiff are sufficient to support a finding that the automobile was more than merely the site of the injury.

I concur in reversal.