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Omaits v MIC General Insurance Corporation; (COA-UNP, 6/25/1990; RB #1386)

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Michigan Court of Appeals; Docket No. 115372; Unpublished 
Judges MacKenzie, Sawyer, and Doctoroff; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt  


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

TOPICAL INDEXING: 
Not Applicable  


CASE SUMMARY: 
In this unanimous per curiam, the Court of Appeals denied no-fault benefits to a woman who fell on a patch of ice on a sidewalk and broke her hip while attempting to walk around a truck. The patch of ice was formed as a result of water that dripped off the truck while it was being washed. The court rejected plaintiff’s argument that her injuries "arose out of the maintenance of a motor vehicle," thus entitling her to benefits under §3105(1) of the Act. The court acknowledged that under the previous decision in Musall v Golcheff (Item No. 1219), "there is no dispute as to whether washing a vehicle constitutes maintenance." However, in denying benefits to the plaintiff, the court stated, "to come within the provisions of the No-Fault Act, plaintiffs injury must have arisen out of maintenance of the vehicle insured by the policy under which plaintiff seeks to recover." The court also observed that "plaintiff was not involved in the maintenance of the truck and was not an employee of the owner of the truck. The vehicle insured by the policy under which plaintiff seeks to recover was not involved in her injuries in any way. There is no causal connection between maintenance of that vehicle and plaintiff’s injuries." 

[Author's Comment: It is respectfully submitted that there is no support in case law for the Court's conclusion that a maintenance injury must arise out of maintenance of the vehicle insured by the policy under which the claimant seeks to recover. In addition, there is no support in the statute for the proposition that it must be the claimant who is involved in the maintenance procedure in order for benefits to be payable. Finally, there is no support in the statute for any requirement that the plaintiff be an employee of the owner of the truck. These observations, which appear to be the rationale for the Court's decision, have not appeared in any other decision and appear to be "judicial legislation."]  


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