Detroit Med. Ctr. v. Progressive Mich. Ins. Co.

• Decision Date: 03 September 2013
• Docket Number: Docket No. 304622.
• Citation: 302 Mich.App. 392,838 N.W.2d 910
• Parties: DETROIT MEDICAL CENTER v. PROGRESSIVE MICHIGAN INSURANCE COMPANY.
• Court: Court of Appeal of Michigan — District of US

302 Mich.App. 392

838 N.W.2d 910

DETROIT MEDICAL CENTER

v.PROGRESSIVE MICHIGAN INSURANCE COMPANY.

Docket No. 304622.

Court of Appeals of Michigan.

Submitted Feb. 5, 2013, at Detroit.

Decided July 23, 2013.

Approved for Publication Sept. 3, 2013, at 9:00 a.m.

Miller & Tischler, PC, Southfield (by Ronni Tischler), for Detroit Medical Center.

Garan Lucow Miller, PC, Detroit (by Daniel S. Saylor), for Progressive Michigan Insurance Company.

Before: MARK J. CAVANAGH, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

Defendant, Progressive Michigan Insurance Company, appeals as of right the trial court's order entering judgment in favor of plaintiff, Detroit Medical Center, for recovery of personal protection insurance benefits under Michigan's no-fault act, MCL 500.3101 et seq., in the amount of $111,761.40. We reverse.

This case involves a single-vehicle accident by a motorcyclist. The motorcyclist, who was traveling upward of 100 miles an hour on a dark and deserted side street that intersected with Jefferson Road, saw bright headlights from an approaching motorvehicle. The motorcyclist applied his brakes to avoid colliding with the vehicle, causing the motorcycle to fishtail. The motorcyclist then lost control of the motorcycle and he “drop [ped the] bike on its side,” hit the sidewalk, and fell. The motorcycle never came into contact with the vehicle. The motorcyclist sustained serious injuries in the accident, which plaintiff treated. Plaintiff subsequently filed this lawsuit, seeking to recover personal protection insurance benefits for its treatment of the motorcyclist's injuries, from defendant Progressive, the insurer of the motorcycle owner. Following a bench trial, the trial court entered judgment in favor of plaintiff, concluding that the motor vehicle was sufficiently involved in the accident to allow recovery of no-fault benefits.

At issue in this single-vehicle-motorcycle-accident case is whether, as a matter of law, the evidence established that the motor vehicle, which did not make physical contact with the motorcycle, was sufficiently involved in the accident to trigger the motorcyclist's entitlement to no-fault benefits under MCL 500.3105(1). “Liability for no-fault personal protection benefits is governed by MCL 500.3105.” Jones v. Tronex Chem. Corp., 129 Mich.App. 188, 191, 341 N.W.2d 469 (1983). Under MCL 500.3105(1), “[t]he no-fault act provides coverage for accidental bodily injury ‘arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.’ ” Greater Flint HMO v. Allstate Ins. Co., 172 Mich.App. 783, 786, 432 N.W.2d 439 (1988), quoting MCL 500.3105(1). “Motorcycles are excluded from the definition of motor vehicles under the no-fault act.” Sanford v. Ins. Co. of North America, 151 Mich.App. 747, 749, 391 N.W.2d 473 (1986); MCL 500.3101(2)(e). However, “a motorcyclist is not among those whom the Legislature has excluded from benefits.” Underhill v. Safeco Ins. Co., 407 Mich. 175, 185, 284 N.W.2d 463 (1979) superseded by statute on other grounds as recognized by Autry v. Allstate Ins. Co., 130 Mich.App. 585, 590 n. 1, 344 N.W.2d 588 (1983). Rather, in Underhill, “the Supreme Court held that a motorcyclist involved in an accident which arises out of the ownership, operation, maintenance, or use of a motor vehicle is entitled to no-fault benefits.” Autry, 130 Mich.App. at 590, 344 N.W.2d 588; see also Bromley v. Citizens Ins. Co. of America, 113 Mich.App. 131, 134, 317 N.W.2d 318 (1982).

There is no “iron-clad rule” as to what level of involvement is sufficient under MCL 500.3105. Dep't of Social Services v. Auto Club Ins. Ass'n, 173 Mich.App. 552, 557, 434 N.W.2d 419 (1988). However, “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.” Kangas v. Aetna Cas. & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42 (1975). “The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.” Id. The causal connection between the injuries and the motor vehicle “cannot be extended to something distinctly remote,” Jones, 129 Mich.App. at 192, 341 N.W.2d 469 (citation and quotation marks omitted); see also Keller v. Citizens Ins. Co. of America, 199 Mich.App. 714, 715, 502 N.W.2d 329 (1993). Moreover, the injuries must be more than “tangentially related to the use of an automobile” to trigger the entitlement to no-fault benefits. Bromley, 113 Mich.App. at 135, 317 N.W.2d 318. Actual physical contact between a motorcycle and a motor vehicle is not required to establish the requisite involvement of a motor vehicle in an accident as long as “the causal nexus between the accident and the car is established.” Id.;Greater Flint HMO, 172 Mich.App. at 788, 432 N.W.2d 439. For a motor vehicle to be involved in an accident, it “must actively, as opposed to passively, contribute to the accident,” and have “more than a random association with the accident scene.” Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 35, 39, 528 N.W.2d 681 (1995). ¹ “[T]here must be some activity, with respect to the vehicle, which somehow contributes to the happening of the accident.” Brasher v. Auto Club Ins. Ass'n, 152 Mich.App. 544, 546, 393 N.W.2d 881 (1986).

Defendant claims that the trial court erred as a matter of law by determining that the motor vehicle was sufficiently involved in the motorcycle accident to trigger entitlement to no-fault benefits under the facts of this case. We agree. This question presents an issue of law, which is subject to de novo review on appeal. Stewart v. State of Michigan, 471 Mich. 692, 696, 692 N.W.2d 376 (2004). “Whether an injury arises out of the use of a motor vehicle must be determined case by case.” McKenney v. Crum & Forster, 218 Mich.App. 619, 623, 554 N.W.2d 600 (1996); Jones, 129 Mich.App. at 192, 341 N.W.2d 469.

We can find no causal connection between the motorcyclist's injuries and the use of a motor vehicle as a motor vehicle sufficient to trigger entitlement to no-fault benefits under MCL 500.3105(1). The motorcyclist applied his brakes when he saw the vehicle's headlights approaching. The motorcyclist's evasive action in braking rapidly was in response to seeing the moving vehicle's headlights and because of the braking he fishtailed and lost control of the motorcycle, ultimately causing him to crash. But this does not mean that the motor vehicle was causally connected to the motorcyclist's injuries, that is, that the injury “originated from,” “had its origin in,” “grew out of,” or “flowed from” the use of the vehicle as a motor vehicle. Shinabarger v. Citizens Mut. Ins. Co., 90 Mich.App. 307, 314, 282 N.W.2d 301 (1979) (citation and quotation marks omitted).

Rather, the evidence established that the causal connection between the motorcyclist's injuries and the motor vehicle was merely incidental, fortuitous, or “but for.” Thornton v. Allstate Ins. Co., 425 Mich. 643, 659, 391 N.W.2d 320 (1986); see also McPherson v. McPherson, 493 Mich. 294, 297, 831 N.W.2d 219 (2013). We cannot say that the motor vehicle actively contributed to the accident rather than merely being present. See Turner, 448 Mich. at 39–40, 528 N.W.2d 681;Brasher, 152 Mich.App. at 546, 393 N.W.2d 881. While it is true that “a vehicle which is motionless in a lawful position is less likely to be considered involved,” and that “a moving vehicle is much more likely to be held to be involved,” Dep't of Social Services, 173 Mich.App. at 557, 434 N.W.2d 419, that does...