Michigan Court of Appeals; Docket No. 123383; Published
Judges Marilyn Kelly, MacKenzie, and Gribbs; 2-1 (with Judge Mackenzie Dissenting); Per Curiam
Official Michigan Reporter Citation: 193 Mich App 332; 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 2-1 per curiam Opinion (Judge MacKenzie dissenting), the Court of Appeals affirmed a jury's determination that plaintiff’s injuries received as a result of a shotgun blast at the vehicle in which he was a passenger, were injuries arising out of the ownership, operation, maintenance or use of a motor vehicle.
In this case, plaintiff became involved in a dispute as he drove home from a party. He and his passenger pursued another vehicle in a high speed chase while the passenger threw beer bottles. The chase ended when the driver of the other vehicle, Vernon Oaks, reached his home. Oaks ran into his house and came back out with a 20-gauge pump shotgun. He walked into the street and approached plaintiff’s car which began "creeping" toward him. Oaks testified that he aimed between the headlights of the car and fired in an attempt to disable the car. Although he intended to strike the radiator, the shot struck plaintiff instead. When Auto Club refused to pay plaintiff’s no-fault benefits, this action was brought. The issue was submitted to the jury, and the jury concluded that Oaks' assault was directed at plaintiff’s automobile rather than at plaintiff. Based upon this jury conclusion, plaintiff was deemed entitled to no-fault benefits.
On appeal, Auto Club argued that plaintiff’s injury did not arise out of the operation of a motor vehicle as a motor vehicle, and that the intent of Oaks to shoot the vehicle rather than the plaintiff should not be controlling.
The Court of Appeals upheld the decision that plaintiff was entitled to no-fault benefits. The court held that unlike Thornton v Allstate, 425 Mich 643 (1986), and other similar cases, in this case the assault was directed at the vehicle plaintiff was driving, and not directly at the plaintiff. Here, the car was not merely the situs of the insured's injuries; plaintiff would not have been shot had he not been in the car. Rather, plaintiff’s injuries stemmed from the functional character of the motor vehicle.
In her dissent, Judge MacKenzie contends that the majority misconstrued the Thornton, supra, decision. Judge MacKenzie would hold that this case presents a situation similar to Thornton in which the inherent nature or the functional character of plaintiff s motor vehicle did not cause his injuries. Instead, the plaintiff was injured as a result of his dispute with Oaks, and plaintiff’s automobile merely served as the situs of Oaks' gunfire. Accordingly, Judge MacKenzie would reverse.
