Michigan Court of Appeals; Docket No. 208651; Unpublished
Judges Kelly, Jansen, and White; 2-1 (With Judge White dissenting); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Entitlement to PIP Benefits: Transportational Function Requirement [§3105(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion, Judge White dissenting, the Court of Appeals held that where plaintiffs lower back injuries were claimed to have been caused as a consequence of his dragging from the road a deer that his vehicle had struck, such injuries were not compensable as no-fault benefits, because they were not "closely related to the transportational function of the vehicle, or related to the ownership, operation, maintenance, or use of the motor vehicle" as required under the Supreme Court's interpretation of section 3105(1).
Plaintiff struck a deer that crossed into the path of his van. Although he claimed at first that his injuries may have arisen from the collision with the deer, he subsequently claimed on appeal that the injuries occurred as a consequence of his efforts in dragging the deer from the roadway to eliminate a hazard to other drivers. Plaintiffs claim for medical expenses was denied by the trial court on the basis that they did not arise from the ownership, operation, maintenance or use of a motor vehicle as required under section 3105(1).
The majority, in affirming the trial court, relied upon Morosini v Citizens Insurance Company of America, 461 Mich 303 (1999) and McKenzie v ACIA, 458 Mich 214 (1998). In this regard, the court held:
"In McKenzie v Auto Club Ins Ass 'n, 458 Mich 214, 225-226; 580 NW2d 424 (1998), the Supreme Court held that whether an injury arises out of the use of a motor vehicle as a motor vehicle under § 3105(1) turns on whether the injury was closely related to the transportational function of motor vehicles. Specifically, the Supreme Court held that the requisite nexus between the injury and the transportational function of the motor vehicle was lacking where the plaintiff was injured while sleeping in a camper/trailer attached to the back of the plaintiff's pickup truck. Id., p 226.Further, the proper focus is on the relation between the injury and the use of a motor vehicle as a motor vehicle, Bourne v Farmers Ins Exchange, 449 Mich 193, 201; 534NW2d491 (1995), and first-party no-fault benefits are available where the involvement of the motor vehicle in the injury is directly related to its character as a motor vehicle. Marzonie vAuto Club Ins Ass 'n, 441 Mich 522, 531-532; 495NW2d 788 (1992). Thus, the connection between the injury and the use of the motor vehicle must be more than incidental, fortuitous, or but for. Id., p 532Plaintiff has not presented any evidence that his injury is closely related to the transportational function of the vehicle, or related to the ownership, operation, maintenance, or use of the motor vehicle. Although it was initially disputed in the lower court whether plaintiff's injury occurred as a result of the collision with the deer or as a result of pulling the deer off the road plaintiff did not depose his doctor and did not present any evidence that the back injury was caused by the collision. Plaintiff's contention there is a sufficient causal nexus between his injury and the use of a motor vehicle as a motor vehicle is incorrect in light of Supreme Court precedent because plaintiff was injured as a result of pulling a deer off the road, which is a separate occurrence from the van's collision with the deer."
In her dissent, Judge White distinguished the instant case from the "fortuitous assault cases" relied upon in Morosini, supra. In the instant case, Judge White felt there was no question that the actual collision with the deer arose out of the ownership, operation, maintenance or use of a vehicle as a motor vehicle, and was closely related to plaintiffs van's transportational function. A motorist's removal of an obstacle in the roadway, directly resulting from a motor vehicle collision, is an injury-causing activity that is closely related to the transportational function of motor vehicles. The instant case presents considerations vastly different from those presented in the fortuitous assault cases.
