Department of Social Services v. Auto Club Insurance Ass'n

Cynae, P.J.

(dissenting).

I most respectfully dissent from the result reached in the majority opinion. There was no contact between the motorcycle and the Besant vehicle. Nor was there any indication that it would make any difference whether the Besant vehicle was stopped or moving in its own direction when the motorcyclist extended his leg and pushed off from the left rear tire of the Besant vehicle.

There was no more than "but for,” incidental, or fortuitous connection between the injuries sustained by the motorcyclist and the "use of a motor vehicle as a motor vehicle.” Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975). In my opinion, reversal is appropriate.