Michigan Court of Appeals; Docket No. 78-4737; Published
Judges Allen, Bashara, and Beasley; 2-1(with J. Bashara Dissenting)
Official Michigan Reporter Citation: 96 Mich App 763; Link to Opinion 
STATUTORY INDEXING:
General / Miscellaneous [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In a 2-1 Opinion, the Court of Appeals rendered a significant decision concerning the interpretation of §3135(2) of the No-Fault Act The majority concluded that under the language of this section, the legislature intended to limit tort liability whenever an automobile is involved in the accident, even if the cause of the accident could in no way be attributed to the vehicle. The majority rejected the plaintiff’s contention that if the defendant's tort does not arise from his use of the motor vehicle, the defendant's liability is not affected by virtue of §3135. On the contrary, the majority concluded that the phrase in §3135(2) "tort liability arising from the ownership, maintenance, or use... of a motor vehicles should be construed to apply to a vehicle "owned, maintained or used," by either plaintiff or defendant.
The facts in this case were as follows: The defendant owned a cow which was negligently permitted to wander onto a highway. The plaintiff’s motor vehicle struck the cow sustaining serious property damage. The damage to the vehicle was paid by the plaintiff’s insurance company and the plaintiff’s insurance company filed a subrogation action against the owner of the cow to recover the property damage. By virtue of the court's opinion, the owner of the cow had no liability in tort whatsoever for this property damage in light of the fact that the plaintiff’s vehicle was covered by the No-Fault Act, thus calling into play the abolishment of tort liability for property damage.
Judge Bashara filed a dissent. He stated that §5 of the Uniform Motor Vehicle Accident Reparations Act, from which the Michigan no-fault law is patterned, clearly provides that "the only tort action" which are abolished are those which arise from the defendant's ownership, maintenance or use of a motor vehicle." Thus, Judge Bashara felt that "one whose negligence may have caused damage, but who may not have been involved in a collision, should not be absolved from liability."
[Author's Comment: This decision is somewhat in conflict with the reasoning in Schwark y Lilly (item number 218). That case held that the reimbursement provisions of §3116 of the Act do not apply to dram shop tort recoveries because the No-Fault Act does not address such tort liability situation." In Schwark the Court said, "The liability of the dram shop defendants did not arise out of the ownership, maintenance or use of an automobile. Instead their liability arose from their alleged 'unlawful selling, giving or furnishing. . .intoxicating liquor to a visibly intoxicated person'."
In addition, this decision (Tuttle) is completely contra to the decision in Auto-Owners v Scholten (item number 305)]
