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Marzonie v Auto Club Insurance Association; (MSC-PUB, 12/30/1992; RB #1586)


Michigan Supreme Court; Docket No. 93152; Published  
Opinion by Justice Riley; 6-1 (with Justice Levin, Dissenting); Per Curiam 
Official Michigan Reporter Citation:  447 Mich 624; Link to Opinion alt  

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

Not Applicable   

In this 6-1 per curiam Opinion, the Supreme Court, pursuant to MCR 7.302(F)(1), peremptorily reversed the judgments of the Court of Appeals and trial court and remanded for judgment in favor of Auto Club based upon the court's conclusion that the plaintiff’s injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle where plaintiff was shot while occupying 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 reached his home. The driver of that vehicle ran into his house and came back out with a 20 gauge shotgun. He walked into the street and approached plaintiff’s car which began "creeping" toward him. He 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 the plaintiff instead. Plaintiff’s car then drove away, and as he drove away, shots were fired at the fleeing car. 

After Auto Club refused plaintiff’s demand for no-fault insurance benefits, this action was brought. In a 2-1 per curiam opinion, the Court of Appeals (Item No. 1S24) affirmed a jury determination that plaintiff’s injuries arose out of the ownership, operation, maintenance, or use of a motor vehicle. The Court of Appeals majority 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. 

In reversing the Court of Appeals and trial court decisions, the Supreme Court held that the testimony of the plaintiff clearly demonstrated that shots were fired during the continuation of an argument that had begun before the vehicle chase. The involvement of the automobiles was incidental and fortuitous. 

The Supreme Court held that in Thornton, supra, the focus was not on the intent of the assailant - instead, "the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle." The court distinguished cases relied upon by the plaintiff, where projectiles were thrown through an open window or dropped from an overpass. Saunders v DAIIE (Item No. 617) and Mann v DAIIE (Item No. 463). In those cases, the hazard experienced by the insureds was directly tied to their use of a motor vehicle as a motor vehicle. The court held that it is the relationship between that use and the hazard which is the key to the Saunders, supra and Mann, supra cases, not the subjective intent of the unidentified assailants. 

In his dissent, Justice Levin wrote that preemptory disposition of this appeal was not appropriate, and the court should have either granted or denied leave to appeal. Preemptory disposition, without plenary consideration, full briefing, oral argument and an opportunity for the profession to file briefs as amica curiae, should be reserved for cases in which the law is settled and factual assessment is not required.  

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