Michigan Court of Appeals; Docket No. 142201; Published
Judges Brennan, Corrigan, and R. C. Anderson; Unanimous; Opinion by Judge Anderson
Official Michigan Reporter Citation: 203 Mich App 86; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous published Opinion by Judge Anderson, the Court of Appeals reversed a decision in which the trial court had found plaintiff entitled to no-fault benefits where he was struck by a hunter's stray bullet while plaintiff was riding in a pickup truck.
In this case, plaintiff was the occupant of a pickup truck that was struck by a bullet during firearm deer season. The shot had been aimed at a deer, missed the deer, and traveled some distance, hit the pickup truck and thereafter striking the plaintiff. The issue below was whether plaintiff suffered "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" within the meaning of §3105(1).
In concluding that the injury did not meet the test of §3105, the court relied on the Supreme Court decision in Thornton v Allstate Insurance Company, 425 Mich 643 (1986), where a plaintiff taxi driver sought PIP benefits after he was injured by an armed robber in his cab. As was held in Thornton, without a relation that is more than "but for," incidental or fortuitous, there can be no recovery of PIP benefits.
The Court of Appeals also distinguished two decisions cited in Thornton, the case of Saunders v DAIIE, 123 Mich App 570 (1983) and Mann v DAIIE, 111 Mich App 637 (1981). In Saunders, the plaintiff was struck by a piece of concrete that was thrown through the open window of a vehicle. In Mann, the plaintiff was injured when a stone dropped from an overpass hit his car. In both of those decisions, the Court of Appeals held that such incidents were foreseeable in the nomfal use of a vehicle, and were aimed at automobiles, not drivers. Therefore, benefits were allowed in both Saunders and Mann.
The Court of Appeals noted that the recent Supreme Court decision in Marzoni v Auto Club Insurance Association, 441 Mich 522 (1992) denied benefits in a situation where the plaintiff was in an automobile when he was shot by a man on foot with whom the plaintiff had engaged in an argument earlier. In that case, the Supreme Court held that the intent of the assailant either to shoot the plaintiff or to shoot the automobile was irrelevant. In Marzoni, the Supreme Court held that, pursuant to Thornton, the proper inquiry is the relationship between the injury and the use of a motor vehicle as a motor vehicle. In Marzoni, the Supreme Court held that Saunders, supra and Mann, supra were, unlike Thornton, cases in which the hazard experienced by die insureds was directly tied to their use of a motor vehicle as a motor vehicle. In relying upon Marzoni, supra, the Court of Appeals here held that that case introduced a test of foreseeability, i.e., whether the harm that occurred is "within the ordinary risks of driving a motor vehicle." In the present case, although plaintiff’s injury occurred while he was within the confines of a motor vehicle, any relationship between the injury and the use of the vehicle as a motor vehicle was merely incidental, fortuitous, and "but for." In the words of the Court of Appeals, plaintiff was "simply in the wrong place at the wrong time, albeit he had arrived at that place and time in a motor vehicle." The court held that the risk of stray bullet passing through an automobile was not within the ordinary risk of driving a motor vehicle.
The Court of Appeals also distinguished this case from the decision in Kreighbaumb v Auto Club Insurance Association, 170 Mich App 583 (1988), a factually similar case in which the plaintiff slowed her automobile in order to avoid hitting a deer and then was struck by hunters' bullets. The Court of Appeals here held that Kreighbaumb was wrongly decided in view of the analysis of §3105(1) and Supreme Court precedent Therefore, the trial court decision finding in favor of the injured plaintiff was reversed.
