347 N.W.2d 760 | Mich. Ct. App. | 1984
HAWKINS
v.
ALLSTATE INSURANCE COMPANY
Michigan Court of Appeals.
Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by James L. Borin), for Allstate Insurance Company.
*605 Dennis J. Simon & Associates, P.C. (by Taras P. Jarema), for American Fidelity Insurance Company.
Collins, Einhorn & Farrell, P.C. (by Dale J. McLellan and Noreen L. Slank), for Aetna Casualty & Surety Company.
Before: DANHOF, C.J., and ALLEN and M.E. DODGE,[*] JJ.
PER CURIAM.
Plaintiff Marlene Hawkins was a passenger in a Pontiac driven on February 8, 1976, by Edward Copley and insured by defendant-appellant Allstate Insurance Company. Copley's Pontiac struck a Rambler owned and operated by Osie Moore and insured by defendant-appellee American Fidelity Insurance Company. Soon after this collision, Marlene Hawkins and Edward Copley, who had exited from the Pontiac, were struck by a third vehicle, an uninsured Dodge driven by Kate Williams. The Dodge also struck the Rambler. Williams fled the scene of the accident, dragging Ms. Hawkins under the car for six-tenths of a mile and severely injuring her.
Hawkins sought no-fault benefits from Allstate and from American Fidelity and was denied benefits by each company. She then made application to the State of Michigan for no-fault assigned claims plan benefits and the claim was assigned to defendant-appellee Aetna Casualty & Surety Company. Aetna paid plaintiff weekly benefits, but refused to pay plaintiff's medical expenses. Hawkins thereupon filed the instant action against all three defendants, seeking payment of her medical expenses. The motion to intervene by Attorney General Frank J. Kelley and the Michigan Department *606 of Social Services was granted by the trial court because the motion alleged that plaintiff's medical bills had been paid by Medicaid.
After a bench trial, the trial court found that Hawkins was an "occupant" of the Pontiac at the time of the second accident. The trial court issued a partial summary judgment on the issue of coverage in favor of plaintiffs and defendant Aetna against Allstate. A partial summary judgment of no cause of action was entered on behalf of American Fidelity and Aetna as to Hawkins' claims. The final judgment was entered on June 11, 1982, fixing the amount of damages. It is from this judgment that Allstate appeals.
On appeal, Allstate argues that the trial court erred in holding that Hawkins was an occupant of the Pontiac at the time of the second accident. We follow the Supreme Court's analysis in Nickerson v Citizens Mutual Ins Co, 393 Mich. 324; 224 NW2d 896 (1975), and hold that the trial court correctly found her to be an occupant of the Pontiac at the time of the second accident.
MCL 500.3106; MSA 24.13106 governs insurance liability under the no-fault act where parked vehicles are involved in an accident:
"(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) Except as provided in subsection (2), the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) Except as provided in subsection (2) for an injury *607 sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle."
A two-tier analysis is generally applicable to § 3106 situations: first, the plaintiff must fall within one of the § 3106 exceptions and, second, a causal connection between the injuries sustained and the ownership, maintenance, or use of the motor vehicle must be found. Teman v TransAmerica Ins Co of Michigan, 123 Mich. App. 262; 333 NW2d 244 (1983); Dowdy v Motorland Ins Co, 97 Mich. App. 242; 293 NW2d 782 (1980).
Section 3106(c) looks to whether the injured person was "occupying, entering into, or alighting from the vehicle". In Nickerson, supra, a pre-no-fault action, the Supreme Court refused to require that there be "physical contact" before an individual could be found to be occupying the motor vehicle. The plaintiff in Nickerson had, like the instant plaintiff, been a passenger in the insured vehicle immediately prior to his injuries by an uninsured motorist. We find the court's analysis in Nickerson to be equally applicable to the present case. Plaintiff herein was found by the trial court to have left the Allstate insured vehicle three to five minutes prior to the second collision for the purpose of exchanging identification and accident information with the other driver involved in the first collision. This finding is well supported by the record and indicates plaintiff's immediate prior occupancy of the vehicle. We agree with the trial court that plaintiff's injury falls within the exception listed in § 3106(c).
The remaining issue is whether a causal connection exists between the injury and the ownership, maintenance, or use of the motor vehicle. We *608 believe that this question must be answered in the affirmative in this case. The requisite causal connection was described by this Court in Kangas v Aetna Casualty & Surety Co, 64 Mich. App. 1, 17; 235 NW2d 42 (1975), lv den 395 Mich. 787 (1975):
"In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle."
The trial court found that:
"Also, plaintiff did not engage in any conduct other than the necessary and compelling activity of exchanging personal information regarding her injuries, etc., from the first accident, nor did she delay, deviate or commit any acts that were not reasonably incident under similar circumstances."
We believe that an injury from a third vehicle after alighting from an insured vehicle which has been involved in an accident is "foreseeably identifiable" with the ownership, maintenance, or use of a motor vehicle.
Affirmed. Costs to plaintiff.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
