ALYCE VAHLBUSCH V ALLSTATE INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
ALYCE VAHLBUSCH, Personal Representative of
the Estate of BRYAN VAHLBUSCH, Deceased,
UNPUBLISHED
December 19, 1997
Plaintiff-Appellee,
v
No. 188240
Genesee Circuit
LC No. 93-025417-CK
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
Before: Holbrook, Jr., P.J. and White and R.J. Danhof,* JJ.
PER CURIAM.
Defendant appeals by leave granted from an order denying its motion for summary disposition
of plaintiff’s claim for no-fault benefits. We reverse.
While sleeping in the bed of his pickup truck, which was covered with a top, plaintiff’s
decedent, Bryan Vahlbusch, and a hunting companion both died of asphyxiation from the use of a
portable propane heater. Vahlbusch and the companion were sleeping in sleeping bags on foam
mattresses, which they had placed in the bed of the pickup truck. Vahlbusch had placed the propane
heater into the truck bed earlier in the day, rigging it up using a milk crate. When the men were
discovered the following morning, the one window at the rear of the truck bed, which had been
propped open the night before, was closed.
Defendant moved for summary disposition on the basis that the pickup truck was not being used
as a motor vehicle at the time of Vahlbusch’s death. The trial court denied the motion, ruling that there
were questions of fact for the jury. On appeal, defendant argues that the trial court erred in failing to
grant its motion. We agree.
Defendant moved for summary disposition under MCR 2.116(C)(10). A trial court’s decision
on a motion for summary disposition is reviewed de novo. Tranker v Figgie Int’l, Inc, 221 Mich App
7, 11; ___ NW2d ___ (1997). A motion for summary disposition under MCR 2.116(C)(10) tests the
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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factual basis of a claim. Id. In reviewing such a motion, all relevant affidavits, depositions, admissions
and documentary evidence submitted by the parties is considered in a light most favorable to the party
opposing the motion. MCR 2.116(G)(5); Quinto v Cross & Peters Co, 451 Mich 358, 362; 547
NW2d 314 (1996). This Court must determine whether there exists a genuine issue of material fact
upon which reasonable minds could differ or whether the party making the motion is entitled to judgment
as a matter of law. Quinto, supra.
The no-fault act, MCL 500.3105(1); MSA 24.13105(1), provides:
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 motor vehicle . . . .
Generally, there is no coverage for injuries that arise from the ownership, operation, maintenance or use
of a parked vehicle. MCL 500.3106(1); MSA 24.13106(1). However, an exception to this general
rule provides coverage when the person is injured while occupying the parked vehicle. MCL
500.3106(1)(c); MSA 24.13106(1)(c). Nonetheless, mere occupancy is insufficient to qualify a
claimant for no-fault benefits under subsection 31061(c). Engwis v Michigan Mutual Ins Co, 181
Mich App 16, 20; 448 NW2d 731 (1989). Rather, a claimant must still establish that his injuries arose
out of the use of a motor vehicle “as a motor vehicle.” Id.
The causation required in a case for no-fault benefits is more than “but for.” Pacific
Employers Ins Co v Michigan Mutual Ins Co, 452 Mich 218, 224; 549 NW2d 872 (1996). The
causation standard adopted by our Supreme Court in Thornton v Allstate Ins Co, 425 Mich 643; 391
NW2d 320 (1986), directs 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. [Id., 650-651, quoting Kangas v Aetna Casualty & Surety
Co, 64 Mich App 1, 17; 235 NW2d 42 (1975).]
Thus, the courts must consider “the relationship between the injury and the vehicular use of the motor
vehicle.” McKenzie v Auto Club Ins Ass’n, 211 Mich App 659, 662; 536 NW2d 301 (1995).
In analyzing this case, we are guided by this Court’s reasoning in four similar cases. In Koole v
Michigan Mutual Ins Co, 126 Mich App 483; 337 NW2d 369 (1983), the insured was injured after
lighting a match and igniting gas that had escaped from the furnace pilot of a camper attached to his
pickup truck. This Court found that the insured was entitled to no-fault benefits, reasoning:
[T]he injuries sustained by the plaintiff here are foreseeably identifiable with the
normal use of this motor vehicle—a pickup truck with attached camper—as a motor
vehicle. . . . [U]se of this vehicle for camping or sleeping constituted a normal and
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foreseeable use as a motor vehicle and . . . such use properly encompassed operation
of the gas-fueled heater or furnace. . . . [T]he required causal nexus between the use of
this motor vehicle as a motor vehicle and plaintiff’s injuries has been established. [Id. at
485; emphasis supplied.]
In Engwis, supra, the insured was fatally asphyxiated when the portable propane heater in his
van malfunctioned, filling the van with propane while he was sleeping. Id. at 18. The van was equipped
with a couch and also had a built-in electrical rear heater. The plaintiff presented deposition testimony
indicating that the decedent purchased the van believing that it had been converted into a recreational
vehicle by the dealership. There was also testimony that the decedent regularly used the van on
overnight camping and fishing trips, and that the decedent’s wife had slept in the vehicle about two
weekends a month during the summer. After noting that “it is reasonably foreseeable that a person
owning a recreational vehicle and who camps overnight and sleeps in that vehicle would acquire a
portable heater/stove for use in the vehicle[,]” this Court held that the defendant insurer was not entitled
to summary disposition as a matter of law because a question of fact existed as to whether the van had
been converted into a recreational vehicle. Id. at 23.
In McKenzie, supra, the plaintiff was injured when the propane furnace in his twenty-eight-foot
trailer, which was attached to his pickup truck, malfunctioned. This Court rejected the defendant’s
argument that the use of the camper-trailer for sleeping did not constitute the use of a motor vehicle as a
motor vehicle. McKenzie, supra at 661. This Court noted that, as in Koole, the camper attached to
the pickup truck was intended for sleeping and therefore constituted use of a motor vehicle as a motor
vehicle under the no-fault act. Id. at 664.
Finally, in Yost v League General Ins Co, 213 Mich App 183; 539 NW2d 568 (1995), the
plaintiff sustained severe burns when he dropped a lit cigarette on combustible material inside the car in
which he was sleeping. Id. at 184. This Court concluded that, as a matter of law, the plaintiff had failed
to establish that the car was being used as a motor vehicle when the accident occurred. It found that the
plaintiff was using the car as a bed and there was nothing about the car to suggest that it was intended to
be used in such a manner. The Court found no causal nexus between the plaintiff’s injuries and the use
of the car as a motor vehicle. Id. at 185.
We find the instant case more akin to Yost than the other cases. The fact that Vahlbusch placed
sleeping bags and foam mattresses in the covered bed of his truck establishes that his vehicle was being
used as a bed when asphyxiation occurred, but does not establish that use of his vehicle as a bed was a
normal and foreseeable use of that vehicle as a motor vehicle. Unlike the vehicles in Koole, Engis and
McKenzie, there was nothing distinctive about Vahlbusch’s vehicle that invited its use as a bed as a
normal and foreseeable use of that vehicle as a motor vehicle. The mere installation of a top on the bed
of the pickup did not convert it for such use. Nor did plaintiff present any evidence suggesting that
Vahlbusch’s intended use of his pickup truck as a motor vehicle properly encompassed operation of a
portable propane heater, or that Vahlbusch equipped his truck with a cap with the intent of using the
truck bed for sleeping purposes as a normal and foreseeable use of that vehicle as a motor vehicle.
Indeed, defendant submitted deposition testimony indicating that the pickup truck had never before
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been used for camping or sleeping, and that Vahlbusch was never known to have slept in the bed of the
pickup truck before.
Accordingly, because the undisputed facts failed to establish a connection between the death of
plaintiff’s decedent and the use of the pickup truck as a motor vehicle, the trial court erred in denying
defendant’s motion for summary disposition.
Reversed.
/s/ Donald E. Holbrook, Jr.
/s/ Robert J. Danhof
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