Opinion
Docket No. 70995.
Decided June 3, 1985.
Franklin, Petrulis, Bigler, Berry Johnston, P.C. (by Witold Sztykiel), for plaintiff.
Faintuck, Shwedel Wolfram (by William G. Wolfram), for Leon T. Walter.
Beier, Howlett, Hayward, McConnell, McCann, Jones, Kingsepp Shea (by P. David Palmiere), for Detroit Automobile Inter-Insurance Exchange.
Defendant Detroit Automobile Inter-Insurance Exchange appeals as of right from an April 6, 1983, order granting summary judgment to plaintiff Central Mutual Insurance Company (CMI). The action arose out of a June 15, 1981, fire at a gasoline service station leased by defendants-cross-plaintiffs Leon T. Walter and Franklin Standard Service, Inc. The fire occurred when fuel leaking from a 1966 Cadillac, brought into the station for repairs, spread onto the floor and was ignited, apparently by the open flame of a hot water heater in the service bay.
The service station premises, owned by C. Rudolph Hanson and Wilma J. Hanson, sustained damages of $23,570.92. CMI, the fire insurer for the premises, paid for repairs and brought this action for negligence against Leon T. Walter and Franklin Standard Service. In an amended complaint filed May 11, 1982, plaintiff sued DAIIE, the no-fault insurer of the Cadillac, to recover for the premises damage under the property protection section of the DAIIE policy. MCL 500.3121(1); MSA 24.13121(1).
The circuit court found that the DAIIE policy controlled because the damages claimed were foreseeably identifiable with the normal maintenance of the automobile. Buckeye Union Ins Co v Johnson, 108 Mich. App. 46; 310 N.W.2d 268 (1981), lv den 414 Mich. 873 (1982).
The relevant section of the no-fault act, MCL 500.3121(1); MSA 24.13121(1), provides:
"Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3121, 3125 and 3127."
On appeal DAIIE contends that the fire did not "aris[e] out of the ownership, operation, maintenance or use of a motor vehicle" within § 3121(1). DAIIE argues that, since the source of ignition (the hot water heater) was unrelated to the direct maintenance of the Cadillac, the damage was not foreseeably identifiable with the normal maintenance of the vehicle. Kangas v Aetna Casualty Surety Co, 64 Mich. App. 1, 17; 235 N.W.2d 42 (1975), lv den 395 Mich. 787 (1975).
In the trial court DAIIE also argued that the garage keeper's liability act, MCL 256.541 et seq.; MSA 9.1721 et seq., should control this action.
Plaintiff CMI responds that the trial court correctly granted summary judgment because the fire and subsequent damage clearly did arise out of the use and maintenance of a motor vehicle. The term "arising out of" in MCL 500.3121(1) does not require as strict a showing of causation as does the concept of proximate cause. In the case at bar, plaintiff argues, it was entirely foreseeable that a fire could occur when a vehicle leaking fuel was brought into a gasoline station for repairs.
We agree with defendant DAIIE that the fire did not "aris[e] out of the ownership, operation, maintenance or use of a motor vehicle" within the meaning of MCL 500.3121(1). In Kangas v Aetna Casualty Surety Co, supra, the Court set forth the following test for determining whether an accident arises out of the ownership, operation, maintenance, or use of a motor vehicle:
"[W]hile 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". 64 Mich. App. 17.
See also Williams v Citizens Mutual Ins Co of America, 94 Mich. App. 762, 764-765; 290 N.W.2d 76 (1980); Ricciuti v DAIIE, 101 Mich. App. 683; 300 N.W.2d 681 (1980).
The present case is distinguishable from Buckeye, supra, and other "trouble light" cases, because in this case a condition in the garage itself was ultimately responsible for the accident. See, e.g., Liberty Mutual Ins Co v Ins Co of North America, 117 Mich. App. 197; 323 N.W.2d 650 (1982), lv den 417 Mich. 922 (1983); Michigan Mutual Ins Co v Carson City Texaco, Inc, 123 Mich. App. 240; 333 N.W.2d 235 (1983), aff'd 421 Mich. 144; 365 N.W.2d 89 (1984); Hawkeye Security Ins Co v State Farm Mutual Automobile Ins Co, 136 Mich. App. 138; 356 N.W.2d 7 (1984). In cases where fuel from a vehicle was ignited by a mechanic's trouble light, there was a close and direct connection between the vehicle's being maintained and the source of ignition. In the case at bar, however, there was no connection; the source of ignition was a water heater pilot light spatially and conceptually removed from the repair work being performed on the automobile. The water heater's sole function was to provide hot water for the gas station bathrooms. It was unrelated to the work of servicing automobiles. We do not believe the Legislature intended the no-fault act to apply in such circumstances.
In Citizens Ins Co of America v Tuttle, 411 Mich. 536 ; 309 N.W.2d 174 (1981), the Court held that the no-fault act did not abolish the tort liability of a nonmotorist tortfeasor whose wrongful act did not involve the defendant's ownership, maintenance, or use or a motor vehicle. In Tuttle the defendant's tort liability, if any, arose only from his alleged wrongful keeping of a cow. Similarly, in the present case the accident arose out of the actions of a nonmotorist tortfeasor. The fire resulted from the placement of a water heater with an open flame in the service bay area of a gasoline station. This was a premises hazard unrelated to the normal maintenance and repair of motor vehicles. It was not foreseeably identifiable with the normal operation, maintenance, or use of vehicles. Kangas, supra; King v Aetna Casualty Surety Co, 118 Mich. App. 648; 325 N.W.2d 528 (1982), lv den 418 Mich. 881 (1983). The no-fault act's abolition of tort liability does not extend to this situation. Tuttle, supra; Ohio Casualty Ins Group v Robinson, 127 Mich. App. 138, 147; 338 N.W.2d 898 (1983) (MacKENZIE, J., concurring in part and dissenting in part).
We do agree with the trial court that the garage keeper's liability act does not apply to this case. The garage keeper's liability act is directed toward damage to motor vehicles and is irrelevant where the claim is for damage to service station premises. Michigan Mutual Ins Co v Carson City Texaco, Inc, supra, p 149; Hawkeye Security Ins Co v State Farm Mutual Automobile Ins Co, supra, pp 142-143.
DAIIE's second and alternative contention is that foreseeability was a question of fact which should not have been decided on a motion for summary judgment. In responding to this issue, CMI has argued that this case involved a question of statutory construction and therefore a question of law susceptible to resolution by summary judgment.
We agree that summary judgment was a proper vehicle for deciding this case, although we do not agree with the result reached by the trial court. Trial on the merits was unnecessary because the facts of the accident were not in dispute, and the trial court's determination involved a question of statutory construction, not a question of deciding between competing factual assertions made by the parties. Consequently, it is appropriate for this Court to direct entry of an order disposing of the case on summary judgment. GCR 1963, 820.1(7); MCR 7.216(A)(7).
Reversed and remanded for entry of judgment in favor of defendant DAIIE.