dissenting.
I respectfully dissent.
This appeal is to determine whether a driver can recover under any circumstances from his own automobile insurer when he is assaulted in the car by a stranger who thinks himself to be offended by the victim’s driving conduct. Viewed most favorably to the driver, the evidence indicates he could not reasonably foresee the' assault. I would reverse the summary judgment.
An unexpected happening is an accident. There is no precedent in Minnesota for our holding here. An accident victim’s insurer has no established basis to maintain that the insured suffered something other than an accident because of evidence that the tortfeasor was willful. Is a person deprived of his own coverage when in a car that is deliberately rammed by a willful stranger?
Surely, an insurer for the perpetrator avoids coverage limited to accidents of the insured. See Red & White Airway Cab Co. v. Transit Casualty Co., 305 Minn. 353, 357, 234 N.W.2d 580, 582 (1975). Absent the supreme court’s decision that this holding governs coverage purchased by a surprised victim, the logical distinction between the cases should lead us to reverse the summary judgment against appellant.
I agree with Judge Nierengarten and Chief Judge Popovich on the issue of a use-related event. Appellant was assaulted in his car. The incident arose out of a driving experience. These were not the circumstances in Holm v. Mutual Service Casualty Insurance, 261 N.W.2d 598 (Minn.1977). While the tortfeasor here, as in Holm, departed from his car to injure appellant, the governing concepts of law do not focus singularly on the car of the tort-feasor. Appellant’s injury arose from the use of his own car, which he continued to occupy when he was injured. In Meric v. Mid-Century Insurance Co., 343 N.W.2d 688 (Minn.Ct.App.1984), we upheld coverage where an intentional assault was perpetrated to get possession and use of a getaway car. Id. at 690. But for the use of a car, appellant’s injury would not have occurred. See Nadeau v. Austin Mutual Insurance Co., 350 N.W.2d 368, 371 (Minn.1984).