Michigan Court of Appeals; Docket #318709; Unpublished
Judges Fort Hood, Hoekstra, and O’Connell; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of/Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving a claim for injuries suffered by plaintiff while trying to stop a fleeing vehicle driven and occupied by persons who had broken into his garage, the Court of Appeals held the injuries plaintiff sustained to his right hand as a result of punching the fleeing vehicle’s windshield were not compensable under MCL 500.3105(1) because those injuries did not “arise out of” the operation or use of the motor vehicle as a motor vehicle. However, the Court of Appeals conversely found that injuries plaintiff suffered to his left hand and ribs, as a result of being knocked to the ground by the fleeing vehicle as it was pulling away were compensable, because those injuries did in fact arise out of the operation or use of the motor vehicle as a motor vehicle.
Plaintiff was injured while trying to stop fleeing intruders who had broken into his home. When the intruders got into their vehicle, plaintiff punched out the windshield, breaking his right hand and fracturing his wrist. As the vehicle began pulling away, plaintiff was holding onto the rear-view mirror with his left hand and was knocked to the ground, injuring his ribs. Defendant, Progressive Michigan, was plaintiff’s no-fault carrier and denied his claim for benefits. Plaintiff filed this action seeking coverage. Defendant moved for summary disposition, claiming plaintiff’s injuries did not arise out of the operation or use of a motor vehicle as a motor vehicle, as required under §3105(1). The trial court granted defendant’s motion, finding the injury to plaintiff’s right hand arose from him punching the windshield when it was stationary and not while it was moving. The trial court further ruled that plaintiff’s other injuries were incidental to the vehicle’s use.
The Court of Appeals ruled the trial court erred in granting summary disposition for defendant on the claim relating to plaintiff’s injuries to his left hand and ribs. In so holding, the court noted an insurer is liable if the injury has a “causal connection” to the use of a motor vehicle as a motor vehicle and the connection is “more than incidental, fortuitous, or ‘but for.’”
Defendant argued that plaintiff’s injuries were incidental to the operation of the intruders’ fleeing vehicle. The Court of Appeals agreed with this argument, but only as to the injuries to plaintiff’s right hand. The court reasoned:
“[I]t is undisputed that the vehicle was stationary when Lowell struck it [with his right hand]. The fact that Lowell punched a vehicle — as opposed to one of the assailants or anything else the assailants might have taken shelter behind — does not mean that his injury arose out of the operation or use of that vehicle. The vehicle was not being operated or used. We conclude that the trial court properly granted summary disposition on this portion of Lowell’s claims.”
Regarding the injuries to plaintiff’s left hand and ribs, the Court of Appeals said they were compensable because they arose out of the operation and use of the motor vehicle as a motor vehicle. The court reasoned:
“According to Lowell, he was holding onto the vehicle’s mirror as it started to drive away, and the vehicle’s motion pulled him forward, snapped off the mirror, and caused him to fall. … Lowell’s injuries were directly related to the facts that the vehicle was in motion and was being used for transportation.”
The Court of Appeals concluded that a reasonable juror could find that the operation of the vehicle caused plaintiff to fall and injure his left hand and ribs. Therefore, the court held that summary disposition was improperly granted for defendant on this part of plaintiff’s claim.