Morosini v. Citizens Insurance Co. of America

Cavanagh, J.

(concurring). I agree with the decision to deny coverage in this case. However, I disagree with the majority’s reliance on the McKenzie v ACIA, 458 Mich 214; 580 NW2d 424 (1998), “transportational function” as a basis for our conclusion.

The majority leads us through this Court’s history of interpreting the relationship between MCL 500.3105(1); MSA 24.13105(1), and facts where a motorist has suffered an intentional physical assault. Bourne v Farmers Ins Exchange, 449 Mich 193; 534 NW2d 491; 42 ALR5th 953 (1995), Marzonie v ACIA, 441 Mich 522; 495 NW2d 788 (1992), and Thornton v *312Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). I agree that we should examine these cases for guidance in determining whether the instant injury is compensable under the statute. However, the majority veers off course when it looks to McKenzie, where the plaintiffs were injured when propane gas fumes leaked into a camper/trailer where they were sleeping. In that case, the majority stated that coverage would not be afforded when vehicles were being used for functions other than transportation, and held that the camper/trailer was being used for “sleeping accommodations.” 458 Mich 226. This use was too far removed from the transportational function to constitute use “as a motor vehicle” at the time of injury. Coverage was denied on that basis. Id.

Because the instant facts provide no dispute that the motorists were operating their vehicles as motor vehicles on a public highway, we need not look further into the “use” or “function” of the vehicles. This is not a case where, as the McKenzie majority notes, “a motor vehicle is [being] used for other purposes, e.g., as a housing facility of sorts, as an advertising display (such as at a car dealership), as a foundation for construction equipment, as a mobile public library, or perhaps even when a car is on display in a museum.” 458 Mich 219. Instead, this case requires an inquiry into the causal connection between the use of the vehicle' as a vehicle, and the injury. We must determine whether the injuries inflicted on plaintiff during the intentional assault are injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . .” MCL 500.3105(1); MSA 24.13105(1).

*313Plaintiff and his attacker were operating motor vehicles on a public highway when the attacker struck plaintiff from the rear. No injury resulted from this collision. However, once plaintiff exited his vehicle in order to exchange insurance information and to examine the area where the impact occurred, he was assaulted and injured by the other motorist. Plaintiffs injury arose out of an intentional assault that occurred after the two motor vehicles were being used as motor vehicles. As in Bourne, where the plaintiff was attacked during a carjacking, this plaintiff suffered a personal physical attack. Generally, such an attack is not compensable. 449 Mich 198. This Court came to the same conclusion in Thornton where the taxicab driver was shot and robbed by a customer. This Court found:

While the injuries were perhaps “foreseeably identifiable” with the occupational or commercial use of a motor vehicle as a taxicab, the relation of the gunshot wound to the functional use of a motor vehicle as a motor vehicle was at most merely “but for,” incidental, and fortuitous. [425 Mich 661.]

In Marzonie, the plaintiff argued with another motorist and was later shot by that person while driving his car. This Court stated that the injuries did not arise out of the use of the motor vehicle as a motor vehicle:

The involvement of the automobiles was incidental and fortuitous. Although Mr. Oaks says that the plaintiff’s car was moving toward him at a “creep,” the shooting arose out of a dispute between two individuals, one of whom happened to be occupying a vehicle at the moment of the shooting. [441 Mich 534.]

*314Finally, in Bourne, we held that carjacking injuries did not arise out of the use of the plaintiffs vehicle as a motor vehicle:

The carjacker simply struck plaintiff. Hence, plaintiffs vehicle was at best the situs of the injury, which is not a sufficient condition to establish the requisite causal connection between the injury and the vehicle. [449 Mich 200.]

In the instant case, the Court of Appeals granted plaintiff recovery by holding that plaintiffs injuries arose from an activity normally associated with the use of a vehicle as a motor vehicle. 224 Mich App 70, 84-85; 568 NW2d 346 (1997). It reasoned that

getting out of the vehicle to inspect for damages from an accident is a normal activity associated with the use of a vehicle as a motor vehicle. Because there was a sufficient causal nexus between the injuries sustained by plaintiff in the assault and the use of the motor vehicle as a motor vehicle, defendant insurer is liable under § 3105(1).

The Court of Appeals essentially reasoned that being assaulted while fulfilling statutory duties to exchange insurance information is a normal risk of driving. I disagree and continue to adhere to this Court’s statement:

[W]e do not agree that assaults are part of “the normal risk” of motoring. [Bourne, 449 Mich 200, n 3.]

In that same footnote, we recognized that there have been cases where objects were projected at, or dropped on, vehicles, which resulted in an injury. Saunders v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983); Mann v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981). We agreed to review such cases as an *315exception to this general rule. However, in this case, we have an intentional physical attack on a person, not a vehicle.

Plaintiffs injuries arose out of the blows inflicted on him by another motorist. The connection to the use of vehicles as motor vehicles preceding the attack provides insufficient “but for” causation. I am unpersuaded that we should depart from the general rule when the causal connection between using the vehicles as motor vehicles is broken by a physical personal assault.