Ventimiglia v United States Fidelity & Guaranty Company; (COA-UNP, 9/5/1997; RB #1964)


Michigan Court of Appeals; Docket No. 185378; Unpublished  
Judges Holbrook, Jr., Fitzgerald, and Smolenski; Unanimous; Per Curiam    
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt    

Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]

Not Applicable   

In this unanimous unpublished per curiam Opinion, the Court of Appeals held that plaintiffs heart attack suffered four days after an attempted carjacking did not arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle within the meaning of §3105(1) of the no-fault act.

Plaintiff, while driving on East Jefferson Avenue in Detroit, noticed that she was being followed by another motorist. When she stopped for a light, the other motorist attempted to block her car. Plaintiff took evasive action and subsequently notified police of the incident. Her pursuer was taken into custody. When plaintiff arrived home, she was very tired and felt a burning sensation in her throat. Four days later, she suffered a heart attack. Medical testimony in support of her claim that her heart attack was caused by this motoring incident, established that her heart attack was indeed caused by a vasospasm, which can result from stress or emotional upset. Further, medical testimony clearly established that a heart attack caused by a coronary vasospasm could occur four days after a very traumatic event. Plaintiff’s cardiologist believed that the criminal episode plaintiff encountered triggered her coronary vasospasm that led to her heart attack.   

The Court of Appeals, reversing a judgment in favor of the plaintiff entered by the trial court after a bench trial, held that, as a matter of law, plaintiff was not entitled to no-fault PIP benefits because her heart attack did not arise out of the operation or use of her automobile as a motor vehicle.  

Although the term "arising out of" requires less than a showing of proximate cause, it does require more than a showing that the causal connection between the injury and the use of the motor vehicle was merely incidental or fortuitous.   

The Court of Appeals further held that the trial court reliance on Bourne v Farmers Insurance Exchange, 203 Mich App 341 (1994) [Item No. 1695], was misplaced, because the Michigan Supreme Court modified that decision on appeal and held that in determining whether there is the requisite nexus between the injury and the use of the motor vehicle, the proper focus is upon the relationship between the injury and the use of a motor vehicle as a motor vehicle, not on the intent of the assailant. The Supreme Court in Bourne, supra, held that summary disposition in favor of the insurance company was proper in a case where plaintiff claimed physical injuries sustained in a carjacking. The Supreme Court in Bourne, supra, stated that it did not agree that assaults are part of the "normal risk" of motoring, but nevertheless, was prepared to examine cases on this issue when presented.   

The Court of Appeals in the instant case held that the facts herein do not squarely raise the issue of assaults as a normal risk of motoring. If assaults are not a normal risk of motoring and injuries resulting from a physical assault may not be characterized as arising out of the use of a motor vehicle as a motor vehicle, then injuries such as a heart attack resulting from the stress of the possibility of a physical assault may not be so characterized. Therefore, plaintiffs injuries in eluding an attempted carjacking did not arise out of a normal activity associated with the use of a motor vehicle as a motor vehicle.

 Finally, the Court of Appeals found the heart attack cases cited by the plaintiff, McKim v Home Insurance Company, 133 Mich App 694 (1984) [Item No. 1086], and Kochoian v Allstate Insurance Company, 168 Mich App 1 (1988) [Item No. 1128] to be distinguishable. In each of those cases, the heart attack was more closely related to the use of the motor vehicle as a motor vehicle, unlike the present case, where plaintiff’s heart attack arose out of the stress, she suffered from an attempted carjacking.