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Brown v Davis and Amerisure Companies and Michigan Mutual Insurance Company; (COA-UNP, 4/21/1995; RB #1785)


Michigan Court of Appeals; Docket No. 167596; Unpublished  
Judges Corrigan, O'Connell, and G. S. Allen, Jr.; Unanimous; Per Curiam 
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   

Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]

Not Applicable   

In this unanimous per curiam unpublished Opinion, the Court of Appeals held that the defendant insurance company was not obligated to pay a judgment for damages sustained by plaintiff when her arm was broken during a dispute with another cab driver over a fare.  

Although this was not a claim for no-fault benefits, but rather was a garnishment action seeking to collect a judgment for damages against the assailant taxi driver, the Court of Appeals relied upon several no-fault decisions in its analysis of the insurance policy provisions.  

In this case, plaintiff Brown and defendant Davis were taxi drivers in Detroit. They became involved in an altercation over prospective customers, and during this dispute, defendant Davis attempted to transfer the luggage of a customer from plaintiffs cab to his own. A struggle ensued during which plaintiffs arm was broken. The break occurred as defendant Davis was standing at the rear of his cab, attempting to place the luggage in the trunk of his cab. A judgment was entered by consent of the parties against Davis for $40,000 based upon a claim of negligence against Davis. When plaintiff attempted to collect this judgment by way of garnishment against Davis' insurance company, Michigan Mutual contended that there was no coverage under the policy, because the policy only covers damages caused by "an accident" and resulting from the ownership, maintenance or use of a covered auto.  

In reaching its decision, the court relied upon Kangas v Aetna Casualty and Surety, 64 Mich App 1 (1975), which held that where an injury inflicted is by an assault by an insured on a third party or by a passenger in assured's vehicle, the great weight of authority is that the injury does not arise out of the ownership, maintenance or use of the automobile. The test established by Kangas is whether the injury is "foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."  

The court held that in the instant case, plaintiff was injured as a result of a dispute over fares with Davis, and the assault and battery initiated at the back of plaintiff’s car. Clearly, the subsequent involvement of Davis' car was incidental and fortuitous. Therefore, plaintiffs injuries were not the result of an accident, and were not foreseeably identifiable with the normal use of Davis’ vehicle. The trial court decision was therefore upheld.

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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