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Gabriel v Detroit Automobile Inter-Insurance Exchange; (MCC-UNP, 4/8/1980; RB #303)


Macomb County Circuit Court; Unpublished  
Judge James C. Daner; Written Opinion  
Official Michigan Reporter Citation: Not Applicable; Link to Opinion alt    

Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]  
Nature of Survivor’s Loss Benefits [§3108(1)]  
One-Year Notice Rule Limitation [§3145(1)]  
Tolling of Limitations for Estoppel [§3145]

Revised Judicature Act – Tolling of Statutes of Limitations (MCL 600.5851 – 600.5856)    

In a lengthy Opinion following a bench trial, Judge James Daner made several significant holdings regarding the no-fault statute of limitations and the recoverability of first party benefits in automobile assault cases. Judge Daner ruled:

1.    That where the plaintiff had made several trips to defendant's claim office within the one year statute of limitations period [§3145(1)] to make a claim for no-fault survivor's loss benefits as a result of the death of his son and where the defendant's agents repeatedly told the plaintiff that there was no coverage and made a memo to the claims file to that effect, and where plaintiff did not consult with an attorney until after the expiration of the one year period and suit was timely filed thereafter, the defendant cannot claim the benefit of the one year statute of limitations. Judge Daner cited several reasons for his holding on this issue. First, the real party in interest in this case was the decedent's minor son and, as such, the tolling provisions of the RJA regarding minors (MCLA 600.5851) apply. To this effect, Judge Daner cited the Court of Appeals decision in Rawlins v Aetna (item number 230). In addition, Judge Daner also stated that the defendant would be subject to the provisions of MCLA 600.5855 regarding the fraudulent existence of a claim and MCLA 600.5852 regarding the two year statute of limitations for administrators.

2.    Judge Daner held that the death that occurred in this automobile assault case "arose out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" under the terms of §3105(1) of the statute and thus entitled plaintiff to an award of no-fault benefits. The operative facts were as follows: Decedent was driving his automobile on an expressway when he had a tire blowout In order to avoid having an accident with other cars that were on the expressway, the decedent turned his vehicle sharply onto an exit ramp. At the top of the exit ramp was another vehicle which the decedent almost collided with. The occupants of this other vehicle became very angry and chased after the decedent's vehicle. When the two vehicles were abreast, an occupant of the other vehicle leveled a gun at decedent and shot him dead.

Judge Daner cited a long line of cases and agreed that a causal connection must exist between an accident and the injury in order for the injury to arise out of the ownership, operation, maintenance or use of a motor vehicle. That causal connection must be more than incidental, fortuitous or but for. The critical factor here was that the automobiles were the instrumentalities of the injury. The role of the automobiles was not incidental or fortuitous. Rather, the use of the automobiles was a causal factor of the altercation that lead to the shooting and death of the decedent It was very important that two cars were involved in what was in essence a noncontact accident. This noncontact accident caused the altercation which resulted in death. Judge Daner acknowledged that the result may have been different if the decedent was proceeding on an expressway and an assailant shot him absent a collision or "near miss" situation. Judge Daner also noted that in today's society it is becoming a common occurrence that people throw things from moving vehicles at other vehicles or otherwise utilize their vehicles to redress highway related disputes.

3.    In light of the fact that the decedent's minor child was living with his grandparents, Judge Daner felt there was ample testimony that the grandparents "will incur obligation" and furnish ordinary and necessary services for the minor in lieu of those that the decedent would have performed. Tangible things of economic value in this economy are at least $15 per day ($5,475 per year), and plaintiff may have judgment for $ 16,425." Judge Daner refused to award attorney fees and/or interest at 12 percent "for the reason that, under the facts and evidence there was not an unreasonable refusal by the defendant to pay the claim and for the further reason that this case presents serious questions of statutory construction."

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