Perryman v. Citizens Insurance Co. of America

M. J. Kelly, J.

Defendant appeals by leave granted from a circuit court order affirming the district court’s order of summary judgment, which awarded plaintiff no-fault benefits for injuries sustained when a gun discharged inside plaintiff’s motor vehicle. Plaintiff was awarded $1,408.78 plus costs and interest and intervening plaintiff was awarded $4,464, the amount expended for plaintiff’s medical bills. Defendant does not contest the amount of damages but alleges error in the finding of liability. We affirm.

On the evening of October 29, 1981, plaintiff and his landlord, Richard Peterson, set out from Marquette on a bird hunting trip in plaintiff’s 1979 Dodge van. Plaintiff’s van was a commercial model, with two bucket seats in front. The men stored their provisions and gear on the floor in the back where there were no seats. Plaintiff’s shotgun was placed on the floor behind his seat. Peterson’s shotgun, stored in a zippered case, was on the floor either behind his seat or between the seats, with the barrel pointing toward the back of the van.

On their way to a camp in Escanaba, plaintiff and Peterson stopped in Skandia at a local bar where they drank beer and shot pool. Afterward, they continued on toward the cabin, arriving at about midnight. Plaintiff pulled off the "two-wheel” road and parked the van on the grass outside the cabin. He turned off the van’s ignition and lights and in the darkness the two men began gathering up some of their gear to take into the *362cabin. Peterson reached for his shotgun, unzipped the case and lifted the gun. As he swung the gun around and over to get out of the van, the gun discharged and plaintiff’s left hand was struck. Plaintiff was hospitalized for one day and was subsequently treated at the Veteran’s Administration Hospital in Iron Mountain. Plaintiff lost 3Vi fingers on his left hand as a result of the gunshot wound.

Plaintiff filed this action in district court for no-fault benefits under an insurance policy with defendant, claiming that his injury arose out of his ownership, operation, maintenance or use of a motor vehicle. Plaintiff subsequently filed a motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(0(10), which was granted. The district court order granting summary judgment was entered December 18, 1984, along with an order allowing the Veteran’s Administration to intervene as plaintiff pursuant to a stipulation of the parties. Defendant appealed as of right to the circuit court which affirmed the district court judgment by opinion and order entered July 24, 1985. Defendant now appeals to this Court by leave granted.

There is no dispute that plaintiff’s vehicle was parked at the time the injury was incurred. Our analysis of this case is thus governed by MCL 500.3106; MSA 24.13106, which provides in relevant part:

(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
(b) Except as provided in subsection (2), the *363injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
(c) Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.

In order for plaintiff to be entitled to no-fault benefits, his injuries must have resulted under one of the three circumstances outlined in subsections (a) through (c) of § 3106 of the no-fault act. See Miller v Auto-Owners Ins Co, 411 Mich 633, 640; 309 NW2d 544 (1981). The trial court concluded and we agree that plaintiff was an occupant of his parked motor vehicle at the time he sustained his injuries and that Peterson was involved in the process of unloading property from the van. Thus, plaintiff has established as a matter of undisputed fact that his injuries were sustained under the circumstances set forth in subsections (b) and (c) of § 3106.

Plaintiff must additionally establish that his injuries are causally connected to his ownership, maintenance, or use of a motor vehicle. Miller, supra; Shaw v Allstate Ins Co, 141 Mich App 331, 333; 367 NW2d 388 (1985). A causal connection means that the "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.’ ” Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). The difficult and dispositive question in this case is whether the undis*364puted facts establish that plaintiffs injuries were causally connected to his ownership or use of his van, thus entitling him to no-fault insurance benefits.

Defendant argues, as did the defendant in Thornton, that the van was merely the site of the accident and in no way caused the accident or injury in question. Upon close analysis of the deposition testimony of both plaintiff and Richard Peterson and relevant case law, we disagree.

In Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979), the plaintiffs’ decedent was engaged with several friends in an illegal activity referred to as "shining” deer. After one unsuccessful shot, the decedent attempted to reenter the automobile which he was driving. He handed his gun to the front seat passenger and the gun discharged, fatally wounding the decedent in the head.

Plaintiffs filed suit to recover no-fault benefits. After determining as a matter of law which of two insurance policies applied, the trial court determined as a matter of law that plaintiffs were entitled to recover no-fault benefits and granted summary judgment against defendant insurer. On appeal, this Court reversed and remanded for trial on the issue of liability. We held that the sole fact that the injury had occurred while the decedent was entering a motor vehicle did not per se make the injury one that arose out of the use of a motor vehicle as a motor vehicle. Instead, we held that use of the vehicle as a motor vehicle must be one of the causes of the injury, though not the proximate cause. We further held that "[w]here the injury is entirely the result of an independent cause in no way related to the use of the vehicle,. . . the fact that the vehicle is the site of *365the injury will not suffice to bring it within the policy coverage.” 90 Mich App 313-314.

We think that the undisputed facts in this case support the legal conclusion drawn by the district and circuit courts. Plaintiff’s use of his motor vehicle as a motor vehicle was one of the causes contributing to his injuries. As pointed out by the trial court, use of a motor vehicle for transporting hunting gear and equipment for a hunting/camping trip is a reasonable and foreseeable use of one’s motor vehicle as a motor vehicle, particularly in the northern areas of this state. Here, plaintiff and Peterson placed their guns on the floor either behind or alongside the seats and kept them there as they traveled to their destination. During the process of unloading, Peterson found himself having to maneuver about in the interior of the van in an attempt to remove his gun fom the vehicle. He reached back for his gun and lifted it upward. He then had to swing the gun over and in front of his body within the fairly limited confines of the cab portion of the van. In doing so, Peterson discharged the gun, resulting in injury to plaintiff.

While we are persuaded that plaintiff’s injuries are causally connected to the use of his motor vehicle, we recognize the split of authority among courts which have faced this same issue. See 7 Am Jur 2d, Automobile Insurance, §202, pp 712-715; 15 ALR4th 10, § 24, pp 91-93. We further recognize that several causes contributed to the accident in this case, including Peterson’s failure to unload his weapon prior to transportation and his failure to secure the safety catch, neither of which should result in no-fault liability. Nevertheless, we think that the relatively confined and dimly lit quarters within which Peterson had to maneuver his weapon in order to unload it from the van contrib*366uted as one of the causes of the sequence of events which occurred in this case. Since plaintiffs van was more than merely the site of an accident, we find inapposite the intentional assault cases cited by defendant in its brief on appeal and recently addressed by the Supreme Court in Thornton, supra.

Affirmed.

T. M. Burns, J., concurred.