Michigan Court of Appeals; Docket No.109858; Unpublished
Judges Neff and Murphy; Unanimous; (Opinion by Judge Allen)
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Exclusion for Vehicles Considered Parked [§3106(1)]
Exception for Occupying [§3106(1)(c)]
Causal Connection Requirement [§3106]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous Opinion written by Judge Allen, the Court of Appeals held that where death results from asphyxia caused by a leaking portable propane tank located in a parked motor van, the plaintiff is not, as a matter of law, precluded from claiming no-fault benefits under §3105(1) of the Act. In so holding, the Court of Appeals reversed the trial court's grant of summary disposition in favor of defendant.
The vehicle involved in this case was a 1979 Chevy Van that plaintiffs decedent purchased as a recreational vehicle which he used on overnight camping and fishing trips. Plaintiffs decedent purchased a portable heater that was attached to a propane gas tank that was situated inside the van, which heater served as a stove for cooking and also as a heating device. On the evening in question, plaintiff slept inside the van while on a fishing trip. Sometime during the evening, plaintiff died as a result of the van filling up with propane gas fumes. Apparently death occurred when the flame on the portable heater went out and the propane gas filled the van to the point where anyone in the van would die of asphyxia.
The Court of Appeals held that the trial court was incorrect in ruling that, as a matter of law, plaintiffs injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle as required by § 3105(1) of the Act. Because the vehicle in question was "parked," plaintiff must satisfy one of the parked vehicle exceptions set forth in §3106. In this case, subsection 3106(l)(c) applies to injuries sustained while persons are occupying a vehicle. However, mere occupancy is not sufficient to qualify for no-fault benefits. The claimant must still establish that the injuries arose out of the use of the motor vehicle as a motor vehicle. The Court of Appeals disagreed with the trial court's conclusion that because the propane heater was not a built-in heater, the fatal injury did not arise out of the use of the motor vehicle as a motor vehicle. As such, the trial court believed that installation of the portable heater was not a foreseeable use of the vehicle. In rejecting this analysis, the Court of Appeals stated:
"We know of no Michigan decision holding that the instrumentality causing the injury must
be a built-in part of the vehicle. . . . Deposition testimony clearly established that decedent
regularly used the van for camping and fishing trips and frequently slept in the vehicle. To us, it is reasonably foreseeable that a person owning a recreational vehicle and who camps overnight and sleeps in that vehicle would acquire a portable heater/stove for use in his vehicle."
The court also went on to state:
"If there is something about the automobile itself causing the injury to occur, there is coverage under the no-fault act"
In reaching its conclusion, the court relied upon Koole v Michigan Mutual (Item No. 646) and Perryman v Citizens Insurance Company (Item No. 966).
