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O'Key v State Farm; (COA-PUB, 4/16/1979; RB #182)


Michigan Court of Appeals; Docket No. 18-507; Published   
Judges Cynar, Holbrook, and Riley; Unanimous; Opinion by Judge Cynar   
Official Michigan Reporter Citation: 89 Mich App 526; Link to Opinion alt   

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

Not Applicable    

In a unanimous Opinion by Judge Cynar, the Court of Appeals held that a person who sustained gunshot wounds by an unidentified assailant while seated in a parked car with the engine running, was not entitled to receive no-fault benefits under §3105(1) of the no-fault statute or the applicable no-fault policy of insurance inasmuch as such an injury did not arise out of the "ownership, operation, maintenance or use of an automobile." The Court of Appeals relied on a previous non-no-fault decision of the Court of Appeals in Kangas v Aetna Casualty, 64 Mich App 1 (1975), which involved a situation wherein several passengers riding in the insured's automobile committed an assault on a pedestrian leading to his death. The Kangas Court held that the insurer of the driver of the automobile had no duty to defend in an action against the insured.

In applying the Kangas rationale, the Court of Appeals in the instant case held that it was not sufficient that the plaintiff was an occupant of the automobile at the time he was wounded. The Court noted that the automobile was not the instrumentality of the injury and its role in the gunshot incident was merely incidental. The Court noted that the plaintiff's occupancy of the car was a fortuity and was not connected in any way with the assault. In addition, the Court stated that an assault by an armed assailant upon the driver of an automobile is not the type of conduct that is "reasonably identifiable" with the use of a motor vehicle. Accordingly, plaintiff was denied no-fault benefits.

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