MCPHERSON V AUTO-OWNERS INSURANCE COMPANY
Docket No. 77-4726
Michigan Court of Appeals
May 21, 1979
90 MICH APP 215
Plaintiff, Joyce L. McPherson, was injured when she slipped and fell on an obstruction in the highway. The accident occurred at the rear of her parked cаr while she was in the process of going around the car to remove her three-year old grandson from the back seat. Plaintiff commenced an action against Auto-Owners Insurance Company, the no-fault insurer of her automobile, for first-party bеnefits. The Kalamazoo Circuit Court, Patrick H. McCauley, J., found that there could be no liability on the agreed facts of the case and a judgment for the defendant was entered. The plaintiff appeals. Held:
The plaintiff was covered by her insuranсe policy under the provision of the no-fault insurance act which covers bodily injury sustained while entering into or alighting from her vehicle. It is sufficient that the automobile provided the occasion for the injury; it is not necessary that the automobile be the cause of the injury.
Reversed and remanded for entry of summary judgment for the plaintiff on the question of liability and for a determination of damages.
J. H. GILLIS, J., dissented. He would hold that even where a person is occupying, entering into or alighting from a vehiclе, it must still be shown that there is a causal relationship between the injury and the ownership, use or maintenance of the vehicle. Such causal relationship was not established here. He would affirm.
OPINION OF THE COURT
1. INSURANCE — AUTOMOBILES — WORDS AND PHRASES — NO-FAULT INSURANCE — STATUTORY CONSTRUCTION — STATUTES.
An interpretation of the phrase “occupying, еntering into or
2. INSURANCE — AUTOMOBILES — NO-FAULT INSURANCE — PARKED VEHICLES — CONTINUITY OF USE — STATUTES.
A person who had just stepped out of an automobile which was covered by a no-fault insurance policy and then, while going around to enter the automobile from the other side, slipped and fell on an obstruction in the highway and suffered personal injuries is insured under the provision of the no-fault automobile insurance act which covers injuries sustained by a person while “occupying, entering into or alighting from” a parked vehicle; there is such coverage where the injured person intends a continued use of thе car; it is unnecessary that the automobile be a cause of the injury, it is sufficient that the automobile provides the occasion for the injury (
DISSENT BY J. H. GILLIS, J.
3. INSURANCE — AUTOMOBILES — INJURY — CAUSAL CONNECTION — OWNERSHIP, MAINTENANCE, OR USE — STATUTES.
There must be a causal connection between an injury sustained and the ownership, maintenance or use of an automobile to create a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal cоnnection must be more than incidental, fortuitous or “but for“, and the injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle (
4. INSURANCE — AUTOMOBILES — INJURY — CAUSAL CONNECTION — OWNERSHIP, MAINTENANCE OR USE — PARKED VEHICLE — STATUTES.
A causal connection between a plaintiff‘s injury and the ownership, use or maintenance of a motor vehicle must be shown, even where a person is occupying, entering into, or alighting from the vehicle, before the plaintiff is covered by the provisions of the no-fault automobile insurance act which pertain to
Jerkin, Plaszczak, Hurley & Bauhof, for plaintiff.
Ryan, Jamieson & Hubbell, for defendant.
Before: D. F. WALSH, P.J., and J. H. GILLIS and T. M. BURNS, JJ.
T. M. BURNS, J. Plaintiff sued to recover first-party benefits under a no-fault insurance contract issued by defendant covering her automobile. Plaintiff had temporarily parked her car and was in the process of going around it to remove her three-year-old grandson from the back seat. While at the rear of the automobile she slipped and fell on an obstruction in the highwаy, sustaining injury.
The controlling statute is
“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:
* * *
“(c) The injury was sustained by the person while occuрying, entering into or alighting from the vehicle.”
The trial court found that there could be no liability on the agreed facts of this case and our review is, therefore, as if the judgment were one under GCR 1963, 117.2(3). In the trial court‘s opinion, it is stated that there was no “causаl connection” between the injury and plaintiff‘s entering into or alighting from the motor vehicle.
We reverse.
The terms used in subsection (c) of the statute are not new with the statute. They have been used in medical coverage provisions of insurance contraсts for some time in clauses which provide benefits without regard to a particular person‘s negligence. See, Anno: Automobile insurance: when is a person occupying an automobile within meaning of medical payments provision, 42 ALR3d 501, § 2(a), pp 504-505. In effect, these clauses provided for a type of no-fault benefit before the current no-fault statutes came into being. We would interpret this statute in light of the previous court interpretations of similar language in insurance policies.1
Our courts have dealt with the phrase and policies on several occasions. The most important of these cases is Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), rev‘g 52 Mich App 40; 216 NW2d 484 (1974). See also, Collins v Motorists Mutual Ins Co, 36 Mich App 424, 428; 194 NW2d 148 (1971), lv den 388 Mich 812 (1972).
In Nickerson, the plaintiff was injured when the car in which he was riding stalled on the highway. The plaintiff was standing in front of the car waiting for assistancе from a passing motorist when the car was pushed into him after being struck by a third car. This Court denied recovery under the “occupying”2 language of the policy.
The Supreme Court unanimously reversed. It held:
The reasoning supporting the holding that physical contact with the auto at the time of the injury was unnecessary was summarized by Justice WILLIAMS,
“In sum, the approach to interpretation of this policy language which does not hold “physical contact” mandatory, appears to us to be by far the more reasonable and persuasive approach. It accords with a strict reading of the policy language, it well implements the time-honored policy of construction of policy language against the insurer, and, perhaps most significantly, as Judge MCGREGOR and plaintiff point out it guards against recovery based entirely upon ‘fortuitous circumstance‘.” 393 Mich at 331.
Because of the Supreme Court‘s apparent reliance on Judge MCGREGOR‘S dissent, it is also instructive to examine that dissent in this Court. 52 Mich App at 47-48. In his view, the appropriate test was one of continuity of action. Under this test the appropriate inquiry is to determine the intent of the injured person with regard to the automobile. Even if the person is temporarily out of or away from the auto, coverage will be found if the person intends a continued use of the car.
Reading these interpretations into
The trial court‘s grant of summary judgment to defendant is reversed. Summary judgment on the question of liability entered in favor of plaintiff is ordered and the matter is remanded to the trial court for a determination of dаmages.
D. F. WALSH, P.J., concurred.
J. H. GILLIS, J. (dissenting). I disagree with the majority‘s position that it is only necessary that the automobile be the occasion of the injury and no causal connection need be shown. In order to support this assertion, reliance is made upon the interprеtation of language in the Worker‘s Disability Compensation Act.
It is not necessary to go to worker‘s compensation law to ascertain the meaning of the “arising out of” term here for there is an abundance of case law directly on pоint. See, Anno: Automobile
“It is well settled that a causal relation or connection must exist between an accidеnt or injury and the ownership, maintenance, or use of a vehicle in order for the accident or injury to come within the meaning of the phrase ‘arising out of the ownership, maintenance or use’ of a vehicle.”
Moreover, worker‘s compensation law applies essentially a “but for” test to determine whether an injury is sufficiently related to the employment relationship to be compensable. Nemeth v Michigan Building Components, 390 Mich 734, 736; 213 NW2d 144 (1973). Such an approach in automobile insuranсe cases was expressly rejected in Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (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.”
I also believe the majority has failed to deal properly with the relationship between §§ 3105 and 3106 of the no-fault act. Section 3105 provides the general requisite for liability:
“Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motоr vehicle, subject to the
Where the insured vehicle is parked there are additional criteria which must be met:
“Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle аs 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) The injury was a direct result of physical contact with equipment permanently mоunted 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) The injury was sustained by a person while occupying, entering into or аlighting from the vehicle.”
MCL 500.3106 ;MSA 24.13106 .
Even where a person is occupying, entering into or alighting from a vehicle, it must still be shown that there is a causal relationship between the injury and the ownership, use, or maintenance of the vehicle. In the instant case while it mаy be true that but for her use of the car plaintiff would not have slipped, as previously noted this is not the proper test to apply. The trial court held there was no causal connection between her use of the automobile and the fact that she fell in the snow and I agree with that determination.
I would affirm.
Notes
Similar “arising out of” language in the Worker‘s Disability Compensation Act has been interpreted not to require a causal nexus between injury and employment. Whetro v Awkerman, 383 Mich 235; 174 NW2d 783; 42 ALR3d 375 (1970). The view taken here is consistent with that type of analysis.