312 N.W.2d 235

A G ASSOCIATES, INC v MICHIGAN MUTUAL INSURANCE COMPANY

Docket No. 54948.Michigan Court of Appeals.
Decided October 7, 1981. Leave to appeal applied for.

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Edwards Edwards (by William J. Richards), for plaintiffs Burch.

Alan R. Miller, P.C. (by Alan R. Miller and David H. Robillard), for plaintiffs A G Associates, Inc., and Checker Cab Company.

Sommers, Schwartz, Silver Schwartz, P.C., for defendant.

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Before: BRONSON, P.J., and R.M. MAHER and F.X. O’BRIEN,[*]
JJ.

[*] Circuit judge, sitting on the Court of Appeals by assignment.

PER CURIAM.

Plaintiffs commenced the present declaratory action seeking to obligate defendant, Michigan Mutual Insurance Company, to defend and pay any settlement or judgment arising out of a separate action instituted by plaintiffs Curtis and Eppro Burch against plaintiffs A G Associates, Inc., and Checker Cab Company. Following summary judgment in favor of defendant, all plaintiffs appeal as of right.

The underlying suit arose out of an assault on Curtis Burch by Lawrence W. McDonald, a taxicab driver, under the employ of plaintiffs A G Associates and Checker Cab Company. Burch was a passenger in McDonald’s cab in the early morning hours of June 28, 1977. After Burch had paid his fare and begun to walk away from the cab toward his home, McDonald crept up behind him, struck him repeatedly with a tire iron, and robbed him. While leaving the scene, McDonald apparently attempted to run Burch over with the cab. Burch was severely injured in the assault.

The taxicab was insured under a policy issued by Michigan Mutual, which provided in applicable part:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, of an

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owned automobile or of a temporary substitute automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

The issue on appeal is essentially whether Mr. Burch’s injuries arose out of the ownership, maintenance, or use of the vehicle, and thereby triggered policy coverage. We hold that they did not.

In Kangas v Aetna Casualty Surety Co, 64 Mich. App. 1; 235 N.W.2d 42 (1975), this Court enunciated a test for determining whether a given injury is within such a liability policy:

“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.” Id., 17.

In the present case, McDonald utilized his role as taxi driver to select Curtis Burch as his robbery victim. Although there is, in that sense, a causal connection between the use of the vehicle and Burch’s injuries, we believe that that connection was an incidental one. The injuries suffered by Burch were not foreseeably identifiable with the normal use of the vehicle. Likewise, the fact that McDonald used a part of the vehicle, the tire iron,

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as the instrumentality of the assault was a mere fortuitous connection to the operation of the taxicab. See, also, O’Key v State Farm Mutual Automobile Ins Co, 89 Mich. App. 526; 280 N.W.2d 583 (1979), Hamka v Automobile Club of Michigan, 89 Mich. App. 644; 280 N.W.2d 512
(1979), Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213; 290 N.W.2d 414 (1980).

Recently, in Ciaramitaro v State Farm Ins Co, 107 Mich. App. 68; 308 N.W.2d 661 (1981), another panel of this Court rejected the argument advanced by plaintiffs that the commercial nature of the vehicle insured should make a difference in resolving cases involving the applicability of nofault automobile coverage. Although that case involved an attempt to collect benefits by the survivors of the driver of the commercial vehicle Ciaramitaro’s holding that an assault is not compensable via no-fault insurance as unconnected to the vehicle, itself, is equally applicable to this case. Indeed, it is an a fortiori
proposition that, if the risk to a driver of a commercial vehicle, who is known to carry money through his occupation, is not sufficiently foreseeable to be identified with the normal use of the car, then the far less normal and more unforeseen attack by a driver of a commercial vehicle on his passenger is also not compensable via the no-fault automobile statute.

At oral arguments, the attorneys for the plaintiffs vigorously argued that public policy considerations mandate that no-fault automobile policies issued to commercial carriers cover injuries inflicted by the carriers’ employees on their passengers. One of the attorneys noted that automobile insurance rates for taxicabs were two and one-half to three times greater than for private vehicles. None of us disagrees that sound public policy should dictate that cab companies insure against

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all risks which might foreseeably result in injury to their customers. However, at present, no state statute requires cab companies to carry general liability policies as a condition precedent to their lawful operation. We believe that the cause of the injuries in issue in this case arose out of an entirely different class of risk than that protected against by the automobile policy. While it is true that automobile insurance rates for cabs are much higher than for private vehicles, this is a product of the increased risk of protecting taxis from the normal hazards of the road and not because nofault policies covering cabs provide coverage for an increased class of risk. While the individual plaintiffs are understandably looking for a deep pocket to compensate them for the conceded wrong inflicted, the corporate defendants appear to be attempting to get a free ride on their no-fault policy because they did not want to expend the funds necessary for liability insurance. The words of the poet, Richard Burton, are apropos, “Penny wise, pound foolish”.

A different result might have been reached had Burch’s injuries resulted from McDonald’s apparent attempt to run Burch over. Such an assault, although intentional and criminal in nature, constitutes the use of an automobile qua automobile. However, a review of the record reveals that Burch never alleged in his complaints that he was injured from the latter assault, nor does his deposition testimony hint at any resulting harm. Absent allegations that the injuries were caused by the automobile as such, the complaints’ averments are outside the coverage of the insurance policy in question.

Likewise, we also conclude that defendant had no duty to defend the suit on behalf of the cab

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companies. The obligation to defend is to be determined by the allegations of the complaint in the underlying action. Guerdon Industries, Inc v Fidelity Casualty Co of New York, 371 Mich. 12, 18; 123 N.W.2d 143 (1963). An insurer has a duty to defend a suit, despite theories of liability asserted that are not covered, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich. App. 63, 67; 264 N.W.2d 122 (1978). Here, however, we conclude that the Burches’ underlying complaint does not allege any theories even arguably within the ambit of the no-fault policy. See The Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich. App. 136, 141-142; 301 N.W.2d 832 (1981). As such, summary judgment in favor of the insurer was appropriate.

Affirmed.

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