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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

GRANGE INSURANCE COMPANY OF 

MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

June 28, 2018

v No. 338260

Wexford Circuit Court

MS ESCORT TRUCK SERVICES, LLC, JOSEPH 

P. ZARYCH, JR., MICHAEL BOS, and ESTATE 

OF JOE M. HERSHBERGER, by LYDIA 

STUTZMAN, Personal Representative,

LC No. 2017-027134-CK

Defendants,

and

ANGELA CLARK, Individually, as Conservator

of the ESTATE OF HOWARD A. CLARK, JR., 

and as Next Friend of MASON CLARK and 

MARLEE CLARK, Minors, 

Defendant-Appellant.

ANGELA CLARK, Individually, as Conservator 

of the ESTATE OF HOWARD A. CLARK, JR., 

and as Next Friend of MASON CLARK and 

MARLEE CLARK, Minors,

Plaintiff/Counter-DefendantAppellant,

and

ESTATE OF JOE M. HERSHBERGER, by 

LYDIA STUTZMAN, Personal Representative,

Plaintiff/Counter-Defendant,

v No. 338262
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Wexford Circuit Court

NORTHLAND CASUALTY COMPANY, LC No. 2016-026881-NI

Defendant/Counter-PlaintiffAppellee,

v

GERALD FITZGERALD, doing business as 

VETERANS PILOT CAR SERVICES,

Counter-Defendant.

GRANGE INSURANCE COMPANY OF 

MICHIGAN,

Plaintiff-Appellee,

v No. 338277

Wexford Circuit Court

MS ESCORT TRUCK SERVICES, LLC, JOSEPH 

P. ZARYCH, JR., MICHAEL BOS, and ANGELA 

CLARK, Individually, as Conservator of the 

ESTATE OF HOWARD A. CLARK, JR., and as 

Next Friend of MASON CLARK and MARLEE 

CLARK, Minors,

LC No. 2017-027134-CK

Defendants,

and

ESTATE OF JOE M. HERSHBERGER, by

LYDIA STUTZMAN, Personal Representative,

Defendant-Appellant.

ANGELA CLARK, Individually, as Conservator 

of the ESTATE OF HOWARD A. CLARK, JR., 

and as Next Friend of MASON CLARK and 

MARLEE CLARK, Minors,

Plaintiff/Counter-Defendant,

and
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ESTATE OF JOE M. HERSHBERGER, by 

LYDIA STUTZMAN, Personal Representative,

Plaintiff/Counter-DefendantAppellant,

v No. 338279

Wexford Circuit Court

NORTHLAND CASUALTY COMPANY, LC No. 2016-026881-NI

Defendant/Counter-PlaintiffAppellee,

v

GERALD FITZGERALD, doing business as 

VETERANS PILOT CAR SERVICES,

Counter-Defendant. 

Before: CAMERON, P.J., and METER and BORRELLO, JJ.

PER CURIAM.

In these declaratory judgment actions relating to the duty to defend and indemnify,

appellants appeal as of right from orders granting Grange Insurance Company of Michigan 

(“Grange”) and Northland Casualty Company (“Northland”) summary disposition under MCR 

2.116(C)(10). Appellants each filed two appeals, one pertaining to the order as to Grange and 

one pertaining to the order as to Northland, and this Court issued an order consolidating the four 

appeals. Grange Ins Co of Mich v MS Escort Truck Servs LLC, unpublished order of the Court 

of Appeals, entered May 19, 2017 (Docket Nos. 338260, 338262, 338277, and 338279). For the 

reasons set forth in this opinion, we affirm.

I. BACKGROUND

For purposes of these declaratory judgment actions, the parties do not appear to dispute 

the basic underlying facts of this case. Shortly before 6:00 a.m. on July 15, 2014, Howard Clark, 

Jr., and Joe Hershberger were passengers in a pickup truck traveling north on M-115 when the 

truck crashed into a semi-trailer that was blocking both the northbound and southbound lanes of 

M-115. Hershberger was fatally injured, and Howard sustained serious injuries. The semi-trailer 

was hauling a 104-foot concrete beam that was supported on one end by a converter dolly. 
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Gerald Fitzgerald,1 was operating the lead “escort vehicle” for the semi-trailer that 

morning. Joseph Zarych, Jr., an employee of MS Escort Truck Services, LLC (MS Escort), was 

operating the lead escort vehicle that morning for a second semi-trailer, which was to follow the 

previously mentioned semi-trailer that was hauling the 104-foot concrete beam. MS Escort was 

owned by Michael Bos.

At some point before approximately 5:44 a.m. that morning, while it was still dark,

Fitzgerald had driven out of a driveway and into the northbound lane of M-115. The first semitrailer, hauling the 104-foot concrete beam, followed by making a wide turn across both the 

northbound and southbound lanes of M-115. The semi-trailer drove into the grass beyond the 

shoulder of the southbound lane, with its headlights facing north, and the concrete beam spanned 

both lanes of M-115 with the other end supported by the converter dolly in the driveway. 

Subsequently, two vehicles traveling south on M-115 stopped short of the concrete beam after 

the driver of the semi-trailer sounded his air horn. The semi-trailer came to a complete stop

before completing its turn. It was at this point that the pickup truck carrying Howard and 

Hershberger crashed into the semi-trailer while traveling north on M-115.

Appellant Angela Clark, in her individual and representative capacities, thereafter filed 

an action against multiple parties that included, as relevant to the instant appeals, MS Escort, 

Bos, Zarych, and Fitzgerald. Appellant Lydia Stutzman, as personal representative of 

Hershberger’s estate, filed a similar action against multiple defendants that also included the 

previously mentioned relevant parties. With respect to Fitzgerald and as pertinent to the issues 

now raised on appeal, it appears from the factual allegations that appellants’ essential theory of 

recovery against Fitzgerald was that he negligently operated his escort vehicle by failing to drive 

into a position to control, block, or warn southbound drivers on M-115 regarding the concrete 

beam blocking the road. With respect to MS Escort, Bos and Zarych (the MS Escort parties), 

and as pertinent to the issues now raised on appeal, it appears from the factual allegations that 

appellants’ theory of recovery was essentially predicated on Zarych’s alleged negligence in 

operating his escort vehicle by failing to drive his vehicle to a position to control, warn, or block 

northbound traffic on M-115 regarding the concrete beam blocking the road. The merits of these 

underlying actions are not before us in the instant appeals.

Subsequently, in Lower Court No. 2016-026881-NI, appellants filed a joint complaint 

against Northland, seeking a declaratory judgment that Northland had a duty to defend and 

indemnify Fitzgerald in the underlying actions pursuant to Fitzgerald’s insurance policy with 

Northland. Northland filed a counterclaim seeking a declaratory judgement that the claims in the 

underlying actions were not within the coverage provided by its policy issued to Fitzgerald and 

that Northland did not owe a duty to defend or indemnify Fitzgerald. Northland maintained that 

it was entitled to declaratory relief because the allegations in the underlying actions did not result 

from the “use” of a covered “auto” as required by the policy. In Lower Court No. 2017-027134-

CK, Grange filed a complaint seeking a declaratory judgment that under the insurance policy it 

 1 Gerald Fitzgerald was doing business as Veterans Pilot Service. For the sake of simplicity, we 

will refer to him as “Fitzgerald” in this opinion.
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issued to MS Escort, Grange was not obligated to defend or indemnify MS Escort, Zarych, or 

Bos in the underlying actions because the nature of the allegations in the underlying actions did 

not fall within the scope of the coverage provided by the insurance policy. Both the Northland 

and Grange policies stated that the insurer would “pay all sums an ‘insured’ legally must pay as 

damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused 

by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’.”

All parties sought summary disposition, and a single hearing was held addressing the 

summary disposition motions in both Lower Court No. 2016-026881-NI and Lower Court No. 

2017-027134-CK. In its ruling from the bench, the trial court concluded that the proper analysis

to apply was the three-part test set forth in 6B Appleman, Insurance Law & Practice (Buckley 

Ed), § 4317, pp 367-369 (the Appleman test), which had been specifically adopted by this Court 

in Century Mut Ins Co v League Gen Ins Co, 213 Mich App 114, 121; 541 NW2d 272 (1995).2 

Under the first prong of the Appleman test, the trial court stated that the accident did not arise 

out of the inherent nature of the automobiles because it “arose as a result of the conduct of the 

escort drivers not signaling and warning people who are at risk because of the oversize load.” 

Under the second prong, the trial court explained that the accident did not arise within the natural 

territorial limits of the automobile and that “[w]e have a duty on the escort drivers to provide 

warnings to the public; that’s a duty that exist for them, but that’s not a duty that is inherent with 

the automobile.” Analyzing the third prong, the trial court concluded that the escort vehicles did 

not produce the injuries because they were caused by the collision of the northbound pickup 

truck with the semi-trailer. Accordingly, the trial court granted Grange and Northland summary 

disposition under MCR 2.116(C)(10) and concluded that Grange and Northland were not 

required to defend or indemnify their respective insureds in the underlying actions. The trial 

court denied appellants’ subsequent motions for reconsideration. 

These appeals followed. In Docket Nos. 338260 and 338262, Angela, in her individual 

and representative capacities, appealed the trial court’s ruling regarding Grange and Northland 

respectively. In Docket Nos. 338277 and 338279, Stutzman, as personal representative of 

Hershberger’s estate, appealed the trial court’s ruling regarding Grange and Northland 

respectively. As previously noted, the four appeals were consolidated by this Court.

II. STANDARD OF REVIEW

 2 The Appleman test provides as follows: 

1. The accident must have arisen out of the inherent nature of the automobile, as 

such; 2. The accident must have arisen within the natural territorial limits of an 

automobile, and the actual use, loading, or unloading must not have terminated; 3. 

The automobile must not merely contribute to cause the condition which produces 

the injury, but must, itself, produce the injury. [Century Mut Ins Co, 213 Mich 

App at 121.]
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“This Court reviews de novo a trial court’s decision on a motion for summary disposition 

in an action for a declaratory judgment.” Lansing Sch Ed Ass’n v Lansing Bd of Ed (On 

Remand), 293 Mich App 506, 512-513; 810 NW2d 95 (2011).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the 

complaint. In evaluating a motion for summary disposition brought under this 

subsection, a trial court considers affidavits, pleadings, depositions, admissions, 

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most 

favorable to the party opposing the motion. Where the proffered evidence fails to 

establish a genuine issue regarding any material fact, the moving party is entitled 

to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120; 597 

NW2d 817 (1999).]

Additionally, “questions involving the proper interpretation of a contract or the legal 

effect of a contractual clause are also reviewed de novo.” Rory v Continental Ins Co, 473 Mich 

457, 464; 703 NW2d 23 (2005). 

III. ANALYSIS

Appellants primarily argue that the trial court erred in granting summary disposition in 

favor of Grange and Northland because the trial court applied an incorrect test to determine 

whether the accident resulted from the use of Fitzgerald’s and Zarych’s escort vehicles.

“It is well settled that if the allegations of the underlying suit arguably fall within the 

coverage of the policy, the insurer has a duty to defend its insured.” Radenbaugh v Farm Bureau 

Gen Ins Co of Mich, 240 Mich App 134, 137; 610 NW2d 272 (2000) (quotation marks and 

citation omitted). “However, the duty to defend and the duty to indemnify are not determined 

solely on the basis of the terminology used in a plaintiff’s pleadings.” USF&G v Citizens Ins Co, 

201 Mich App 491, 493; 506 NW2d 527 (1993). “[A] a court must focus on the cause of the 

injury to ascertain whether coverage exists,” and “[i]t is the substance rather than the form of the 

allegations in the complaint which must be scrutinized.” Id. at 494. The duty to defend is 

broader than the duty to indemnify. Radenbaugh, 240 Mich App at 138. In determining whether 

an insurer has a duty to defend its insured, we consider the language of the insurance policy to 

discern the scope of the policy’s coverage. Id. Reviewing a dispute over the meaning of an 

insurance policy requires us to “look to the language of the insurance policy and interpret the 

terms therein in accordance with Michigan’s well-established principles of contract 

construction.” Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 

(1999). The terms of an insurance contract are enforced as written unless an ambiguity exists. 

Id.

In this case, both the Northland and Grange policies provided that the insurer would “pay 

all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property 

damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the 

ownership, maintenance or use of a covered ‘auto’.” (Emphasis added.)

Our Supreme Court has noted that “[t]he phrase ‘arising out of the ownership, 

maintenance or use’ of a vehicle has commonly been used in automobile insurance policies” and
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generally provides the “basic causal relation test” in no-fault automobile insurance plans. 

Thornton v Allstate Ins Co, 425 Mich 643, 648-649; 391 NW2d 320 (1986) (citations and some 

quotation marks omitted). Our Supreme Court has further explained that this phrase “had a 

relatively well-established meaning in insurance law” at the time that the Michigan no-fault act 

was enacted and that “[a]ll courts agreed that some sort of causal connection between the injury 

and the ownership, maintenance, or use of the vehicle was required for coverage.” Id. at 649-

650.

The Thornton Court discussed an earlier decision from this Court, Kangas v Aetna Cas & 

Surety Co, 64 Mich App 1; 235 NW2d 42 (1975), which, as the Thornton Court noted, involved 

the interpretation of the phrase “ ‘arising out of the ownership, maintenance or use of the owned 

automobile’ ” in a pre-no-fault insurance contract. Thornton, 425 Mich at 650; see also Kangas, 

64 Mich App at 4, 8, 17. The Thornton Court quoted the following test that had been adopted in 

Kangas for the required causal connection between an injury and the use of a motor vehicle:

“[W]e 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.” [Thornton, 425 Mich at 650-651, quoting Kangas, 64 Mich App at 17 

(alteration in original).]

Additionally, our Supreme Court in Thornton quoted the Appleman test, contained in 6B 

Appleman, § 4317, pp 367-369, for the proposition that pre-Kangas caselaw “generally required 

more than ‘but for,’ incidental or attenuated causation.” Thornton, 425 Mich at 651. The 

Appleman test provides as follows:

“Accordingly, three rather interesting rules have been set up to determine 

the insurer’s liability: 1. The accident must have arisen out of the inherent nature 

of the automobile, as such; 2. The accident must have arisen within the natural 

territorial limits of an automobile, and the actual use, loading, or unloading must 

not have terminated; 3. The automobile must not merely contribute to cause the 

condition which produces the injury, but must, itself, produce the injury.” [Id., 

quoting Appleman, § 4317, pp 367-369.]

The Thornton Court applied these standards and held that the injuries that a taxi driver 

suffered during an armed robbery of his taxicab “did not arise out of the ownership, operation, 

maintenance, or use of a motor vehicle as a motor vehicle” for purposes of recovering personal 

protection insurance benefits under MCL 500.3105(1)3 because the injuries “had only a ‘but for,’

incidental, and fortuitous relation” with the driver’s use of the motor vehicle as a motor vehicle. 

 3 MCL 500.3105(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.”
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Thornton, 425 Mich at 646, 661-662. Our Supreme Court reasoned that the “motor vehicle was 

not the instrumentality of the injuries” but was “merely the situs of the armed robbery.” Id. at 

660. The Thornton Court further explained that the “relation between the functional character of 

the motor vehicle and [the driver’s] injuries was not direct” and that “the inherent nature of the 

use of a motor vehicle did not cause [the driver’s] injuries” because the injuries were caused by 

the robber’s gunfire. Id. at 660-661.

Subsequently, in Century Mut Ins Co, 213 Mich App at 121, this Court formally adopted 

the Appleman test “for deciding automobile coverage issues.” The Century Mut Ins Co Court 

noted in doing so that the Appleman test was consistent with, and provided clarification for, the 

Thornton/Kangas standard. Id. Like the instant case, Century Mut Ins Co involved the question 

whether the insureds’ liability for an injury came within insurance policy language that provided 

coverage for “ ‘damages for which an insured person is legally liable because of bodily injury or 

property damage arising out of the ownership, maintenance, or use including the loading or 

unloading of the insured car.’ ” Id. at 115-116. In Century Mut Ins Co, an individual was 

injured when she leaned into the insureds’ automobile and was bitten by the insureds’ dog. Id. at 

116. This Court held that under the Appleman test and the Thornton/Kangas causation standard, 

the dog-bite injury did not arise out of the ownership, maintenance, or use of a motor vehicle. 

Century Mut Ins Co, 213 Mich App at 117-118, 120-121. The Century Mut Ins Co Court 

reasoned that the automobile “was the mere situs of the injury,” that the assertion of liability 

against the insureds was based on the strict liability dog bite statute, and that the injury was not 

caused by the inherent nature of the automobile. Id. at 121-122.

In this case, following the above principles, we apply the Appleman test as a tool that is 

“useful for deciding automobile coverage issues.” Id. at 121. Under the first prong of the test, 

“ ’[t]he accident must have arisen out of the inherent nature of the automobile, as such.’ ” Id., 

quoting Appleman, § 4317, pp 367-368. In this case, the allegations involving Fitzgerald and 

Zarych4 in the underlying actions concerned their alleged failure to control, block, or warn 

drivers on M-115 regarding the semi-trailer and concrete beam that was blocking the road. 

These underlying claims relate to the alleged failure of Fitzgerald and Zarych to fulfill their

professional duties as escort drivers for the semi-trailer that was involved in the crash with the 

northbound pickup truck. The fundamental purpose of a motor vehicle, however, is providing 

transportation, not controlling traffic as an escort vehicle for a semi-trailer. Cf. McKenzie v Auto 

Club Ins Ass’n, 458 Mich 214, 215, 219-220; 580 NW2d 424 (1998) (concluding that “[w]hether 

an injury arises out of the use of a motor vehicle ‘as a motor vehicle,’ ” for purposes of 

determining an injured person’s entitlement to personal protection insurance benefits under 

§ 3105(1) of the no-fault act, “turns on whether the injury is closely related to the 

transportational function of automobiles”); cf. also Thornton, 425 Mich at 661 (distinguishing 

between “the inherent nature of the use of a motor vehicle” and the “occupational or commercial 

 4 Because the pertinent allegations involving MS Escort and Bos were predicated on Zarych’s 

alleged negligence with respect to his operation of his escort vehicle, we only need to analyze 

Zarych’s alleged actions and inactions to determine whether the trial court erred by determining 

that Grange was not obligated to defend or indemnify the MS Escort parties.
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use of a motor vehicle as a taxicab”). The fact that Fitzgerald and Zarych each may have 

performed their escort-driver duties while in a motor vehicle does not transform their respective

alleged actions and inactions into conduct that involved “ ‘the inherent nature of the automobile, 

as such.’ ” Century Mut Ins Co, 213 Mich App at 121, quoting Appleman, § 4317, p 368; 

McKenzie, 458 Mich at 215, 219-220; Thornton, 425 Mich at 661. Instead, the pertinent

allegations in the underlying actions concerned the failure of Fitzgerald and Zarych to take action 

of any kind to control, block, or warn drivers on M-115 with respect to the hazard presented by 

the semi-trailer in the road. These allegations relate to the duties of Fitzgerald and Zarych in 

their professional role and rather than to demonstrate that the accident arose out of the inherent 

transportation function of their vehicles “ ‘as such.’ ” Century Mut Ins Co, 213 Mich App at 

121, quoting Appleman, § 4317, p 368.

Moving to the second prong of the Appleman test, “ ‘[t]he accident must have arisen 

within the natural territorial limits of an automobile, and the actual use, loading, or unloading 

must not have terminated.’ ” Century Mut Ins Co, 213 Mich App at 121, quoting Appleman, § 

4317, pp 368-369. In this case, the accident occurred when the pickup truck carrying Howard 

and Hershberger crashed with the semi-trailer; the accident did not arise within the natural 

territorial limits of the vehicles driven by Fitzgerald and Zarych.

Finally, the third prong requires that “ ‘[t]he automobile must not merely contribute to 

cause the condition which produces the injury, but must, itself, produce the injury.’ ” Century 

Mut Ins Co, 213 Mich App at 121, quoting Appleman, § 4317, p 369. In this case, the vehicles 

driven by Fitzgerald and Zarych did not produce the injury; at best, the alleged failure of 

Fitzgerald and Zarych to fulfill their professional duties as escort drivers could have contributed 

to causing the condition that led to the crash, which is insufficient to meet the third prong of the 

Appleman test. Century Mut Ins Co, 213 Mich App at 121, quoting Appleman, § 4317, pp 369. 

The fact that Fitzgerald and Zarych allegedly failed to perform these duties while they were in 

motor vehicles does not mean that the vehicles produced the injury. 

Therefore, the underlying allegations involving the vehicles driven by Fitzgerald and 

Zarych do not satisfy any of the Appleman test prongs. Accordingly, the injuries in this case did 

not result from the ownership, maintenance, or use of their vehicles. Because these underlying 

allegations did not arguably fall within the coverage of the Grange and Northland insurance 

policies, the trial court did not err by granting summary disposition in favor of Grange and 

Northland. Radenbaugh, 240 Mich App at 137.

Appellants advance several arguments against this conclusion. First, appellants argue 

that the Appleman test does not apply in the instant case; according to appellants, its application 

is somehow limited to situations where the negligent use of a vehicle has not been pleaded 

because the theory of liability in Century Mut Ins Co was premised on the strict-liability-dog-bite 

statute. Appellants further rely on Wakefield Leasing Corp v Transamerica Ins Co of Mich, 213 

Mich App 123, 125-127; 539 NW2d 542 (1995). Appellants argue that Wakefield Leasing Corp

also applied the Appleman test to a situation that did not involve “allegations regarding the use 

of the vehicle.” In Wakefield Leasing Corp, a taxi driver was injured when a passenger assaulted 

him in his taxicab. Id. at 125. The question before this Court in Wakefield was whether the 

insurer had a duty to defend the insured taxicab company under the applicable automobile 

liability policy based on the allegation that the taxicab company had failed to install a safety 
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partition between the front and rear seats. Id. at 126-127. However, there is no language in 

either Century Mut Ins Co or Wakefield Leasing Corp creating such a limitation on the 

application of the Appleman test. The Century Mut Ins Co Court expressly adopted the 

Appleman test “for deciding automobile coverage issues.” Century Mut Ins Co, 213 Mich App 

at 121 (emphasis added). The instant case involves an issue of coverage under an automobile 

insurance policy, and we are bound by Century Mut Ins Co, MCR 7.215(J)(1). Therefore, we 

reject appellants’ argument because the Appleman test applies. Century Mut Ins Co, 213 Mich 

App at 121.

Next, appellants argue that Thornton stands for the proposition that the issue whether use 

of a motor vehicle caused an injury must be resolved “in favor of coverage if there is any 

allegation that a use of a motor vehicle caused injury unless there is an intentional tort alleged 

that is excluded under the insurance policy.” In addition to the fact that appellants cite

nonbinding dicta from Thornton in an attempt to support this argument,5 there is absolutely no 

language in the Thornton opinion indicating that the Court’s decision was predicated on the fact 

that the injury was caused by an intentional tort. Instead, the Court was clear that its decision 

was predicated on the lack of more than an incidental causal connection between the injuries and 

the “functional character of the motor vehicle.” Thornton, 425 Mich at 660.

Next, appellants argue that the instant case is actually controlled by Vanguard Ins Co v 

Clarke, 438 Mich 463; 475 NW2d 48 (1991), overruled on other grounds by Wilkie v AutoOwners Ins Co, 469 Mich 41, 63; 664 NW2d 776 (2003), and that the Appleman test does not 

apply because the Vanguard Ins Co found that an injury arose out of the operation and use of an 

automobile without applying the Appleman test. In Vanguard Ins Co, an individual drove into 

his garage after a night of consuming alcohol and closed the garage door while the car engine 

continued to run. Vanguard Ins Co, 438 Mich at 467. The individual died from the carbon 

monoxide fumes, as did his wife and son who were in the home. Id.

However, Vanguard Ins Co is inapplicable to the instant case and does not stand for the 

proposition argued by appellants because the issue whether the deaths arose out of the operation 

and use of an automobile was not discussed by the Vanguard Ins Co Court. The only issue 

before the Court was whether the theory of concurrent causation should be adopted in the context 

 5 “Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to 

determine the case at hand and, thus, lack the force of an adjudication.” Auto Owners Ins Co v 

Seils, 310 Mich App 132, 160 n 7; 871 NW2d 530 (2015) (citation and quotation marks omitted). 

The language from Thornton that is cited by appellants involves a reference to the view of a 

commentator that liability protection should be provided for any use of an automobile unless the 

policy expressly limits coverage to use as a vehicle; but the necessity of exclusionary or limiting 

language in an insurance policy was not at issue before the Court in Thornton, and the Thornton

Court also did not formally adopt the particular commentator view cited by appellants in this 

case. See Thornton, 425 Mich at 656-657. Thus, appellants have only cited dicta in support of 

their position, and we are not bound by this language. Auto Owners Ins Co, 310 Mich App at 

160 n 7.
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of insurance liability where although a policy exclusion exists, there were two or more causes of 

an indivisible injury and one cause falls within the coverage of the insurance policy. Id. at 465-

466. In Vanguard Ins Co, it was argued that the deaths were caused by both the closing of the 

garage door and the operation of the automobile and that, under the theory of concurrent 

causation, the exclusion in the homeowner’s insurance policy for injuries arising out of the use of 

a motor vehicle did not prohibit liability under the homeowner’s policy because that policy 

would cover the negligent act of closing the garage door. Id. at 468-469. Our Supreme Court 

declined to adopt the concurrent causation theory. Id. at 474-475. The Court merely noted,

without discussing any relevant test and indeed without providing any analysis on the point at all, 

that “the tragic event at issue here clearly ‘arose out’ of the operation and use of an automobile.” 

Vanguard Ins Co, 438 Mich at 475. Therefore, we reject appellants’ arguments that Vanguard 

Ins Co somehow controls our analysis in the instant case or requires us to abandon the Appleman 

test.

Next, appellants argue that our analysis should be guided by Pacific Employers Ins Co v 

Michigan Mut Ins Co, 452 Mich 218; 549 NW2d 872 (1996). According to appellants, Pacific

Employers Ins Co dictates (1) that the Appleman test is inapplicable and (2) that when analyzing 

whether an injury arose out of the use of an automobile, the focus is on the specific use of the 

vehicle at issue under the unique facts and circumstances of a given case. Apparently, appellants 

urge us to abandon the Appleman test and consider the particular uses of escort vehicles to 

determine whether the injuries in this case resulted from the use of a covered auto. Appellants 

essentially argue that the specific use of the vehicles at issue must always be considered 

regardless whether there is any language in the insurance policy addressing uses of particular 

types of motor vehicles.

In Pacific Employers Ins Co, 452 Mich at 220, a child was injured crossing a street after a 

school bus driver dropped her off at the wrong location on her first day of kindergarten. Our 

Supreme Court held that the “ ‘use’ of a school bus, as stated in these policies of insurance, 

includes disembarkation of a kindergartener at a place other than the predetermined bus stop, and 

that an injury that is foreseeably identifiable with the disembarkation at a place other than the 

predetermined location, arises out of the ‘use’ of the school bus.” Id. (emphasis added). The 

school district’s automobile insurance policy provided in pertinent part that it would pay “ ‘all 

sums which the insured shall be legally obligated to pay as damages’ ” due to accidents 

“ ’arising out of the ownership, maintenance or use . . . of the owned motor vehicle.’ ” Id. at 

221-222. Significantly, however, the school district’s automobile insurance policy also provided 

in relevant part that the coverage only applied while the vehicle was being used for a defined 

“ ’use.’ ” Id. at 222. The policy included the following definition of school bus use:

“Bus uses are:

A. School Bus Use.

School Bus Use—means the carrying of persons in connection with school 

attendance or any school activity of your school or school district.” [Id.]

As appellants in this case point out, the Pacific Employers Ins Co Court analyzed the 

particular use of school buses in reaching its conclusion. Id. at 226. However, in the instant 
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case, no such additional language regarding the use, purpose or scope of escort vehicles is 

present in the previously cited insurance policy provisions at issue, and there is consequently no 

indication that the insurance policy requires consideration of the particular uses of escort 

vehicles as distinguished from ordinary motor vehicles. The analysis in Pacific Employers Ins 

Co was clearly tied to the language of the specific insurance policy at issue, and there is no 

language in the opinion announcing the bright-line rule proposed by appellants that a court is 

always to scrutinize the particular use of the individual vehicle at issue in a given case to 

determine whether an accident resulted from the use of a motor vehicle. Appellants have not 

directed us to any language in the relevant insurance policies addressing the use of motor 

vehicles as escort vehicles or that would require us to apply the type of analysis to escort 

vehicles that the Pacific Employers Ins Co Court applied to school buses. Instead, the insurance 

policies at issue in this case refer more generally to the use of a covered auto, and, as previously 

discussed, the Appleman test provides the proper analytical framework. Appellants essentially 

ask us to add language to the insurance contracts, which we decline to do because our task is to 

enforce the insurance contract as written. Henderson, 460 Mich at 353. For these reasons, 

Pacific Employers Ins Co is inapplicable to the instant case and does not compel a conclusion 

that the trial court erred.

Next, appellants argue that the underlying allegations involving the vehicles driven by 

Fitzgerald and Zarych satisfy the definition of “accident” contained within the Grange and 

Northland policies and that the trial court erred by either ignoring the application of the term 

accident or finding the term to be ambiguous without construing it against the insurance 

companies. However, appellants’ focus on the definition of accident in the policies is misplaced. 

The Northland and Grange policies in this case provide that coverage exists for injuries “caused 

by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’.” 

(Emphasis added.) Accordingly, regardless whether the incident qualifies as an accident under 

the policies, that accident must also result from the ownership, maintenance or use of a covered 

auto. As previously discussed, the injuries did not result from the ownership, maintenance, or 

use of the vehicles driven by Fitzgerald and Zarych. Contrary to the argument raised on appeal 

by appellants, there is no conflict between the conclusions (1) that an accident occurred and (2) 

that the accident did not actually result from the use of the vehicles driven by Fitzgerald and 

Zarych, as determined under the Appleman test. Thus, we also reject appellants’ argument that 

the definition of “accident” in the policies somehow affects our analysis.

IV. CONCLUSION

The injuries in the underlying actions did not result from the ownership, maintenance, or 

use of the vehicles driven by Fitzgerald and Zarych. Therefore, the allegations against Fitzgerald 

and Zarych did not provide a basis for coverage under the Grange and Northland insurance 

policies that would require Grange and Northland to defend or indemnify their respective 

insureds in the underlying actions, and the trial court did not err by granting summary disposition 

in favor of Grange and Northland.
-13-

Affirmed. Grange and Northland, as prevailing parties, may tax costs. MCR 7.219(A).

/s/ Thomas C. Cameron 

/s/ Patrick M. Meter 

/s/ Stephen L. Borrello