MARC E ANDERSON V STATE FARM MUTUAL AUTO INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
MARC E. ANDERSON,
UNPUBLISHED
April 25, 2000
Plaintiff-Appellant,
v
No. 208651
Lapeer Circuit Court
LC No. 95-021596 CK
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellee.
Before: Kelly, P.J., and Jansen and White, JJ.
White, J. (dissenting).
I respectfully dissent.
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, subject to the provisions of this chapter.
During the pendency of this appeal, the Supreme Court decided Morosini v Citizens Ins Co of
America (After Remand), 461 Mich 303; 602 NW2d 828 (1999), holding that injuries the plaintiff
driver received when he was assaulted by the driver of another car following a minor traffic incident did
not give rise to a claim for PIP benefits under MCL 500.3105(1); MSA 24.13105(1). The Supreme
Court disagreed with this Court’s determination that the plaintiff’s injuries arose out of the use of his
motor vehicle as a motor vehicle. After discussing four cases, none of them factually similar to the
instant case as they largely involved assaults in motor vehicles,1 the Court concluded that the assault in
Morosini “was not ‘closely related to the transportational function of motor vehicles,’” quoting
McKenzie v ACIA, 458 Mich 214, 226; 580 NW2d 424 (1998). The Court further observed, in
pertinent part:
From these decisions we learn:
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• The focus is on the relationship between the injury and the use of a motor vehicle as
a motor vehicle, not on the intent of the assailant. Marzonie.
• Incidental involvement of a motor vehicle does not give rise to coverage under the
language enacted by the Legislature . . . Bourne.
• The statute authorizes coverage in the event of an assault only if it is “closely related
to the transportational function of motor vehicles.” McKenzie. [Morosini at 310]
In the instant case, there can be no question that the actual collision with the deer arose out of
the ownership, operation, maintenance or use of the vehicle as a motor vehicle, and was closely related
to plaintiff’s van’s transportational function. Further, while there may not be a legal obligation to clear
the roadway after a collision to prevent injury to other motorists, plaintiff’s actions in doing so were
directly related to the motor vehicle collision with the deer. Applying the applicable principles identified
by the Supreme Court, I conclude that the motor vehicle’s involvement in plaintiff’s injury was not
merely incidental, and that a motorist’s removal of an obstacle in the roadway directly resulting from a
motor vehicle collision is an injury causing activity that is “closely related to the transportational function
of motor vehicles.” Thus, there is a sufficient causal nexus between the injuries sustained and the use of
the motor vehicle as a motor vehicle to bring the injury within the intended purview of the no-fault act.
See Morosini, at 308-309.
In the cases relied on by defendant, many involving gunshot injuries, the motor vehicle’s
involvement was fortuitous, simply providing the site for injury. Here, there was first a motor vehicle
collision and then an injury producing event -- dragging the carcass from the roadway -- that was a
normal, direct and foreseeable response to a common motoring occurrence. That is, motor vehicle
deer collisions are a recognized risk of motoring, and it is normal, expected, and reflective of the direct
risks of motoring that a driver might attempt to remove the deer from the road to prevent harm to other
motorists. The connection between the injury producing event - - pulling the deer from the roadway -
and the motor vehicle is not simply fortuitous. Rather, the need to drag the deer from the roadway
arose directly from the transportational function of the motor vehicle. Id. The deer was hit by the motor
vehicle and was blocking the roadway. The requisite nexus between the injury and the transportational
function of the motor vehicle is present. Id.
The instant case presents considerations vastly different from those presented in the fortuitous
assault cases. Recognizing coverage here is consistent with the legislative purposes of lowering the
overall cost of providing benefits for motoring-type injuries and confining benefits to risks closely related
to the transportational function of motor vehicles, in that, rather than providing coverage for a fortuitous
extra-motoring event such as an assault, it encourages motorists to make the roadway more safe for
other motorists, and recognizes the close and
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natural causal connection between the motor vehicle collision and the motorist’s effort to clear the road
of the obstruction caused by the collision.
I would reverse and remand for further proceedings.
/s/ Helene N. White
1
Three of the four cases discussed by the Morosini Court involved assaults. See Thornton v Allstate
Ins Co, 425 Mich 643; 391 NW2d 320 (1986) (taxi driver shot during armed robbery by passenger);
Marzonie v ACIA, 441 Mich 522; 495 NW2d 788 (1992) (occupants of two vehicles argued, one
pursued the other vehicle home, occupant of the latter vehicle retrieved a gun and shot at first vehicle,
injuring driver); and Bourne v Farmers Ins Exchange, 449 Mich 193; 534 NW2d 491 (1995) (driver
assaulted during carjacking by two men hidden in back seat of his vehicle). In the fourth case,
McKenzie, supra, two men were hospitalized after inhaling carbon monoxide while they slept from a
heater in a camper/trailer attached to the back of a truck.
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