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STATE OF MICHIGAN
COURT OF APPEALS


EMC INSURANCE COMPANY, as subrogee of SCHMUCKAL OIL COMPANY, Plaintiff-Appellee, v JEFFREY ROGER RICHTER, Defendant-Appellant.

UNPUBLISHED January 15, 2008

No. 267643 Ottawa Circuit Court LC No. 05-052654-CZ

Before: White, P.J., and Saad and Murray, JJ. PER CURIAM. Defendant appeals by leave granted from a circuit court order that denied defendant's motion for summary disposition. We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E). Defendant drove a GMC Yukon to a gas station owned by Schmuckal Oil Company and accidentally caused a fire while filling a 28-gallon container with gasoline. The container was in the back of the vehicle. Plaintiff alleges that the gas ignited as defendant attempted to fill the container with gasoline. Defendant maintains that he had completed filling the tank and was removing the nozzle when he saw flames coming from the container. In any event, plaintiff alleges that the gas ignited because defendant failed to remove the 28-gallon container from the back of his truck before filling it with gasoline, and otherwise failing to ground the container, thereby allowing a static charge to build and ignite the gasoline. Plaintiff, the insurer and subrogee of Schmuckal Oil Company, brought this action for negligence against defendant, seeking to recover $114,386.90 that it paid for the damage caused by the fire. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that the action should be brought against the no-fault insurer of the Yukon. According to defendant, the property damage arose out of the "use" of a motor vehicle because the vehicle was being used for its intended and contemplated use. The trial court reasoned that no-fault coverage was not available under MCL 500.3121: Was there a causal connection between defendant's use of the Yukon and the injury to plaintiff's subrogor? This Court believes not. The damage was caused while the vehicle was parked and unoccupied and a tank or container not -1-


part of the vehicle but [sic] was being loaded with gasoline while it was not properly grounded. It had nothing to do with the use of a motor vehicle as a motor vehicle. The vehicle, although apparently having the capability of carrying a gasoline container, was not specifically designed or built with that specific intent. Therefore, this Court holds that the Yukon was not being used as a motor vehicle when the injury which was merely incidental or fortuitous to its use occurred. This Court reviews a trial court's decision on a motion for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We agree with the trial court that the damage did not arise out of the use of a motor vehicle as a motor vehicle. In McKenzie v Auto Club Ins Ass'n, 458 Mich 214, 220; 580 NW2d 424 (1998), the Court explained that the phrase "use of a motor vehicle as a motor vehicle," in

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