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Kreager v State Farm Mutual Automobile Insurance Company; (COA-PUB, 12/21/1992; RB #1591)


Michigan Court of Appeals; Docket No. 133800; Published  
Judges Corrigan, Weaver, and Connor; Unanimous; Opinion by Judge Corrigan  
Official Michigan Reporter Citation:  197 Mich App 577; 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 unanimous published Opinion by Judge Corrigan, the Court of Appeals affirmed the trial court determination that plaintiff was not entitled to PIP benefits on the grounds that plaintiff, who was shot by a passing motorist, did not sustain injury arising out of a motor vehicle accident.  

Plaintiff had stopped his car at an intersection when he felt something hit the rear of his vehicle. He got out of his vehicle and found that a bottle had been apparently thrown at his car from a vehicle behind him. The vehicle was occupied by several young men. Plaintiff picked up the bottle and threw it back at the car behind him. The car then accelerated and passed him while he stood outside of his vehicle. As the car drove by, five shots were fired, one of which struck and injured the plaintiff.  

The Court of Appeals upheld the trial court determination that pursuant to the provisions of §3105, plaintiff’s injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. The court held that this case was controlled by Thornton v Allstate Insurance Company, 425 Mich 643 (1986) (Item No. 935) and its progeny. The court held that armed assault and drive-by shootings are not generally the type of conduct that is reasonably identifiable with the use of an automobile. The shots could just as readily have been fired from a building, a parked car, a bicycle, or by a fellow pedestrian. Therefore, plaintiff was not entitled to personal injury protection benefits. 

The court also rejected plaintiff’s argument that he was entitled to uninsured motorist benefits pursuant to the provisions of the defendant's policy, which would pay for damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. An uninsured motor vehicle is defined in the policy as including a "hit-and-run" land motor vehicle whose owner or driver remains unknown and which strikes the insured and causes bodily injury. The court held that the requirement in the policy of "physical contact" between the uninsured vehicle and the plaintiff is enforceable in Michigan. Reliance by plaintiff on the decision in Hill v Citizens Insurance Company, 157 Mich App 383 (1987) (Item No. 1024) in which a large rock was projected through the windshield by the wheels of a passing truck, did not support plaintiff’s claim in this case that there was a "substantial physical nexus" between the unidentified vehicle and plaintiff. Therefore, the court denied uninsured motorist benefits.  

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