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Ho Bac Nguy v Farmers Insurance; (COA-UNP, 2/10/1986; RB #906)


Michigan Court of Appeals; Docket No. 81880; Unpublished  
Judges Bronson, T. M. Burns, and Simon; 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 Opinion, the Court of Appeals affirmed the decision of the circuit court denying defendant's motion for summary judgment.

Plaintiff was injured on March 11,1983, when he was struck by a bullet while lawfully driving his motor vehicle eastbound on the Jeffries Freeway in Detroit. Police investigation failed to disclose the source of the bullet the motive of the person causing the injury, the identity of the person causing the injury or any suspects.

Defendant in its motion for summary judgment on the basis of alleged "failure to state a claim upon which relief can be granted," contended that plaintiff’s injuries did not arise out of the ownership, maintenance, operation or use of a motor vehicle as a motor vehicle. Defendant specifically challenged the sufficiency of the causal connection between the injury sustained and the use of the vehicle. After first noting that the pleadings did in fact state allegations which were clearly legally sufficient the Court of Appeals went on to note that sufficient facts were available to also require denial of summary judgment on the basis of GCR 1963,117.2(3).

The Court of Appeals ruled that the term "arise out of" does not require a showing of proximate causation, but rather a sufficient causal connection is established if the injury is foreseeably identifiable with the normal use, maintenance or ownership of the vehicle. [See Wagner v Michigan Mutual, Item No. 693; and Kangas v Aetna Casualty, 64 Mich App 1; 235 NW 2d 42 (1975).] The Court of Appeals stated that while ordinarily an assault on a person in an automobile in a noncommercial setting is not a compensable injury under the no-fault act, an injury is compensable if the assault is directed at the automobile itself rather than at the driver or passenger. (See Mann v DAIIE, Item No. 605; and Saunders v DAIIE, Item No. 617.) The Court of Appeals noted that the facts presented below indicated that there were at least three possibilities which could have occurred, including: (1) plaintiff could have been personally assaulted; (2) there could have been an assault directed toward his car; or (3) he could have been struck by a random bullet without the existence of an intended assault. Plaintiff would be entitled to recovery if he established either of the latter two situations.

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