Michigan Supreme Court Denies Leave in Two of Three Cases Pending to Address Legal Causation Under No-Fault Act for Motorcycle Accidents

Last week I filed an amicus curiae (friend of the court) brief in the State Farm v. MMRMA case pending on application to the Michigan Supreme Court.  As I mentioned in my last post, there were two other cases, both pending on applications to the Court, which asked the Court to deal with the same issue that is presented in this particular case.  Yesterday, the Court denied the applications in those cases.  See the orders here: DMC Case and Smutski v. Auto-Owners, et al.

There has been no disposition of the application in the case for which I submitted an amicus brief.  Thus, it remains the only one still pending.

I previously wrote about these cases in the following posts:

Amicus Curiae Brief Filed in State Farm v. MMRMA

State Farm Seeks Contribution from County Sheriff for Motorcyclist’s Injuries Suffered in Motor Vehicle Accident While Fleeing from Police

Braverman ex rel Smutski v. Auto-Owners, et al.

DMC v. Progressive, et al.

As I mentioned in my previous posts, the Court of Appeals in the Auto Owners case actually remanded for a determination of the factual circumstances involving the motorcycle accident.  There was a question of fact whether the tractor trailer had identifying lights on while it was in the roadway just before the motorcyclist crashed trying to avoid impact with the truck.  In the DMC v. Progressive case the Court of Appeals actually ruled there was no causation.  The “evidence” of involvement of another vehicle was based only on the motorcyclist’s testimony that an unidentified vehicle was about to cross his path and he wrecked his bike while trying to avoid the collision.

It is difficult, if not impossible, to interpret the Court’s actions from its non-action on these two applications.

We shall see what the Court does with the application in the State Farm case.  Although, interestingly, that case has the added wrinkle of involving a governmental entity as the insurance carrier.  Hence, my participation as amicus curiae author in support of the carrier’s application on behalf of Oakland, Wayne and Macomb counties.

I have been at the forefront of the motorcycle accident cases due to my authorship of amicus curiae briefs in the DeYoung / Spectrum case, which I wrote about here:

Supreme Court to Address Taking of Motorcycle in Insurance Coverage Dispute

Supreme Court Undertakes Joyriding and Unauthorized Taking of Motor Vehicles and Motorcycles

up until the present time involving these most recent significant pronouncements on the level of causation and priority among insurers under MCL 500.3114(5) of Michigan’s No-Fault Act.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

Lacey & Jones, LLP’s Appeals and Legal Research Group

Lacey & Jones, LLP’s Insurance Coverage and Recovery Group

Lacey & Jones, LLP’s Civil Litigation Group

 

Court of Appeals Issue Yet Another Opinion Articulating Different View of “Causation” in Motorcycle Accident Coverage Under No-Fault Act

In Braverman ex rel Smutzki v Auto-Owners Insurance Company, the Court of Appeals issued another legal ruling on the extent or level of “involvement of a motor vehicle” in a motorcycle accident required under the No-Fault Act.  In the past couple of months, the Court of Appeals has issued two other opinions, each of which seem to arrive at differing conclusions regarding the application and definition of the statutory requirement that a motor vehicle be “involved” in an accident with the motorcycle for the motorcyclist to recover benefits under the No-Fault Act.

Background

In this case, the motorcyclist suffered a fatal brain injury when she “laid down her bike” to avoid an apparently imminent collision with a tractor-trailer which was making a slow left turn in front of her.

It was approximately 10:00 p.m.  The street was poorly lit, if at all.  The decedent was riding her bike along with two other motorcyclists.  Their speed was approximated to be 30 to 45 miles per hour.

According to the testimony of one of decedent’s companions, she sped up suddenly and passed him on the left.  He testified this was unusual as they rode together often and he always took the lead and stayed on her left.  He also testified she was looking down at her right hand, which was the throttle side of her bike’s handlebars.  He noted that her throttle had gotten stuck once in the past when he was riding her bike.  He speculated at his deposition this may have been the cause for her sudden acceleration, her unusual maneuver around his left side, and her focus on her throttle rather than the road in front of her.

At a point shortly thereafter, the decedent looked up and saw the tractor-trailer.  Instead of stopping, she swerved and “laid down her bike” to avoid collision.  She did not come into contact with the tractor-trailer.  She suffered a fatal brain injury as a result of her fall.

The accident occurred at approximately 10:00 p.m. on a street with little or no lighting.  There was conflicting testimony as to whether the tractor-trailer’s lights were illuminated at the time of the accident.

Court Rulings

Under the no-fault act, MCL 500.3101 et seq., a motorcycle is not a “motor vehicle.”  MCL 500.3101(2)(e).  For an injured motorcyclist to recover personal insurance protection (PIP) benefits, the accident must “involve a motor vehicle.”  MCL 500.3105; Auto Club Ins Ass’n v State Auto Mut Ins Co, 258 Mich App 328, 331 n 1; 671 NW2d 132 (2003).

MCL 500.3114(5) establishes the order of priority of insurance coverage with respect to which insurer must pay the PIP benefits to the injured motorcyclist:

A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident;

(b) The insurer of the operator of the motor vehicle involved in the accident.

(c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.

(d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident.

(emphasis added).

Thus, if the tractor-trailer was “involved in the accident” that led to decedent’s injuries and death, then her estate can recover PIP benefits from defendant under MCL 500.3114(5)(a).  Generally, when there is physical contact between the injured party and a motor vehicle, that motor vehicle is involved under MCL 500.3114(5).  See Auto Club Ins Ass’n, 258 Mich App at 339-341. In this case, the parties agreed that neither decedent nor her motorcycle ever came into contact with the tractor-trailer. However, even if there was no physical contact, a motor vehicle
can still be involved in an accident. See Turner v Auto Club Ins Ass’n, 448 Mich 22, 39; 528 NW2d 681 (1995); Frierson v West American Ins Co, 261 Mich App 732, 736-737; 683 NW2d
695 (2004).  In Turner, the Supreme Court held:  [F]or a vehicle to be considered “involved in the accident” under MCL 500.3125 the motor vehicle, being operated or used as a motor vehicle, must actively, as opposed to passively, contribute to the accident. Showing a mere “but for” connection between the operation or use of the motor vehicle and the damage is not enough to establish that the vehicle is “involved in the accident[.]”  In Turner, 448 Mich at 25-26, a police car had its lights activated and was quickly pursuing a stolen vehicle. The stolen vehicle ran a red light and hit two trucks. Turner, 448 Mich at 25-26. One of the trucks split into two and crashed into a building, causing a fire and extensive property damage. Id. at 26. The police car did not collide with the stolen vehicle or either truck. Id. Nonetheless, our Supreme Court held that the police car was involved in the accident because its pursuit of the stolen vehicle prompted that vehicle’s driver “to ignore the red light and collide with the other vehicles,” so its insurer was responsible for paying property protection benefits with respect to the damaged building. Id. at 42-43.

In this case, the trial court concluded that the tractor-trailer was involved in the accident as a matter of law because the accident occurred when decedent reacted to the tractor-trailer in the road. The court compared the tractor-trailer to the police car in Turner, 448 Mich at 42-43, which the Court held was involved in the accident that caused property damage because the police car’s lights and speed caused the car it was pursuing to crash into another
vehicle, which then crashed into a building. Given this conclusion, the trial court ruled in plaintiff’s favor as a matter of law.

The Court of Appeals reverses, holding the trial court’s “but for” analysis was prohibited by the Supreme Court’s decision in Turner, supra, and that further factual development needed to occur to consider the extent to which the tractor-trailer was involved in the accident.

The panel somehow concludes the fact the tractor-trailer was moving slowly as opposed to stopped in the roadway made a difference in the extent to which it was or was not “involved” in the motorcyclist’s accident.  The panel also notes there was a factual question concerning whether the tractor-trailer was visible, given the time at night, the poor lighting of the roadway, and some conflict in the testimony concerning whether the operator of the tractor trailer had illuminated his lights and flashers.

There are several other interim rulings made by the Court of Appeals that are of import to the remand proceedings and the remaining progression of the case, but the focus of this article is on the divergence, yet again, in causation analysis under the No-Fault Act.

Conclusion and Takeaway

This is yet another case adding to confusion (or at least uncertainty) of the extent to which an automobile must truly be involved in, i.e., the cause of or a cause of, an accident involving a motorcycle.  The answer to the inquiry is extremely important in determining the priorities of insurance coverage available under the No-Fault Act.

Two of my prior posts speak to the “causation” analyses being employed by the courts in motorcycle accidents (and each of the cases appears to come to varying results (particularly in the spectrum of causative factors applied to come to the conclusion that a motor vehicle was in fact involved in a motorcycle accident).

Those posts are as follows:

Police Vehicle Involved In Motorcyclist’s Accident with Another Vehicle Where Police Vehicle Pursued Motorcyclist But Then Gave Up On the Chase

Motorcyclist’s Attempt to Avoid Collision with Motor Vehicle Not Sufficient “Involvement” of Motor Vehicle in Accident to Trigger Priority of Coverage Analysis

The Supreme Court appears to be narrowing (rather than expanding) the spectrum of causative factors in more recent pronouncements concerning “causation”, generally, under the No-Fault Act.

Supreme Court’s Decision in McPherson Concerning “Causation” in No-Fault Automobile Insurance Coverage Case

Considering the Supreme Court’s more recent pronouncement in McPherson, the dubious nature of the causation analysis employed in the 1995 Turner decision, the facts presented here, and other contrary Court of Appeals opinions, I believe this case is destined for further appellate treatment by the Supreme Court.

There are different statutory provisions at stake, but the attenuated nature of the causation analysis employed by the Court of Appeals in the instant case does seem to warrant further treatment by Michigan’s One Court of Justice.

It seems the answer lies somewhere in between the “actual contact” rule and the “passive contribution” or “but for” rule.

We shall see.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

Lacey & Jones, LLP’s Appeals and Legal Research Group

Lacey & Jones, LLP’s Insurance Coverage and Recovery Group

Lacey & Jones, LLP’s Civil Litigation Group

Michigan Supreme Court Issues Important 6-1 Decision on Priority of Payments for PIP Benefits and Rules Against Double Recovery

In Harris v. Auto Club.07.29.2013, the Michigan Supreme Court has ruled a plaintiff injured in a motor vehicle accident was not entitled to double recovery of medical benefits under the automobile liability policy issued to the owner of the motor vehicle involved in the accident.  The plaintiff was injured when his motorcycle was struck by a motor vehicle.  The motor vehicle was covered by a no-fault automobile liability policy issued by Auto Club Insurance Association (ACIA).  Under the no-fault act the insurer of the motor vehicle is responsible to pay personal insurance protection (PIP) benefits for injuries incurred by the plaintiff.  Plaintiff sought insurance coverage for his medical bills from his personal health insurance provider, Blue Cross Blue Shield of Michigan (BCBSM) and from ACIA.  He expected BCBSM to directly pay his medical providers and he expected ACIA to send him a check in the same amount.

The trial court ruled that ACIA’s policy was “uncoordinated” with other benefits, meaning it was responsible to pay PIP benefits regardless of any other insurance the claimant might have.  The trial court also noted plaintiff’s contract with BCBSM provided the latter was not responsible for services for which the plaintiff was not legally responsible, or for which he would not be charged if he did not have coverage with BCBSM.

The Court of Appeals in a 2-1 unpublished opinion (O’Connell, P.J., Donofrio, J., and Murray, J. (dissenting)) reversed, holding, in essence, the plaintiff was entitled to receive a double recovery for those benefits initially paid by BCBSM.  The dissenting judge reasoned that the language of the BCBSM policy controlled the outcome because plaintiff was not legally chargeable with the responsibility to pay for the services rendered due to the injuries he suffered in the collision with the insured motor vehicle.

The Supreme Court, addressing the question whether the plaintiff was entitled to a double recovery, reversed.  The Court noted its prior acknowledgement that an insurer with an uncoordinated policy may be required to pay a claimant even if that claimant received services for injuries paid for by a no-fault insurer.  The Court reasoned that the plaintiff here was not “covered” by a no-fault policy, but rather, he was entitled to receive payment for medical services rendered by statute.  MCL 500.3114 (priority statute allowing recovery of PIP benefits by a motorcyclist from the insurer of a motor vehicle when the former suffers injury in an accident with a motor vehicle – the insurer of the owner or registrant of the motor vehicle involved in the accident is the priority insurer in such situations).

The Court reasoned the Court of Appeals erred by concluding that the no-fault insurance policy issued by the driver of the motor vehicle involved in the accident with plaintiff covered the plaintiff; rather, the statute provided an entitlement to PIP benefits to be paid for by that insurer.  “[Plaintiff] is entitled to PIP coverage because MCL 500.3114(5)(a) designates ACIA as the responsible insurer.”

If the plaintiff had paid a premium to BCBSM for an uncoordinated policy, a premium that would have reflected the absence of the coordination provision, then he might expect a double recovery.  Under MCL 500.3114(5)(a) however, the plaintiff was not obligated to pay his medical expenses, ACIA was as a matter of law.

The Court also relied on policy concerns of avoiding double recovery in the insurance industry by allowing matching cash grants as a result of the apparent (but not legitimate) ambiguities created by two existing insurance policies.  Premiums are to reflect, as near as possible, the risks associated with the policy’s terms of coverage.  If the BCBSM policy’s “non-coordination” provision would have been read out of that policy, it would have required BCBSM to cover a risk which it did not anticipate by the provision of a higher premium for such non-coordination.

This opinion obviously reflects a reasonable outcome and is based more on common-sense than any real concern of policy.  The other take away from the opinion is that the health insurance provider must take care the policy reflects the coordination with other potentially legally required priority payments to which the insured may be entitled.

Michigan Supreme Court Rules on Causal Connection Required to Receive No-Fault Benefits in Addressing Whether Plaintiff’s 2008 Spinal Cord Injury Suffered in a Motorcycle Accident Due to a Seizure “Arose Out Of” 2007 Motor Vehicle Accident in which Plaintiff Suffered a Brain Injury that Induced Seizures

In this recent opinion, the Michigan Supreme Court in a (5-1 opinion (Justice Cavanagh dissenting and Justice Viviano not participating)), rules that a plaintiff who was rendered a paraplegic after he suffered a seizure resulting in a crash while riding a motorcycle in 2008  was not entitled to no-fault benefits from the defendant insurance company, which paid benefits to him for the seizure inducing brain injury he suffered in a 2007 accident.  Plaintiff claimed he was entitled to no-fault benefits for the spinal cord injury suffered in the 2008 motorcycle accident because that injury “arose out of”the 2007 accident in which he suffered the brain injury.

The trial court denied the insurance company’s motion for summary disposition and the Court of Appeals affirmed.  After hearing oral argument on the insurance company’s application, the Supreme Court reversed.  The Court addressed “whether the spinal cord injury suffered in the 2008 injury ‘arose out of’ the 2007 accident for purposes of MCL 500.3105(1).”

The Court explains the causal connection required to receive no-fault benefits arising out of a motor vehicle accident:  “[A]n insurer is liable to pay benefits for accidental bodily injury only if those injuries ‘aris[e] out of’ or are caused by ‘the ownership, operation maintenance or use of a motor vehicle . . . .’ It is not any bodily injury that triggers an insurer’s liability under the no-fault act. Rather, it is only those injuries that are caused by the insured’s use of a motor vehicle.”  Citing Griffith v. State Farm Mut. Auto Ins. Co., 472 Mich. 521, 531 (2005).

The Court further explained that an injury arises out of the use of a motor vehicle as a motor vehicle when “the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.’”  Citing Thornton v. Allstate Ins. Co., 425 Mich. 643, 659 (1986).

Here, the Court concludes the causal connection between the 2008 spinal cord injury and the 2007 accident is insufficient to satisfy the “arising out of” requirement of MCL 500.3105(1).  As explained by the Court:  “Plaintiff did not injure his spinal cord while using the vehicle in 2007.”

The Court continues:  “Rather, he injured it in the 2008 motorcycle crash, which was caused by his seizure, which was caused by his neurological disorder, which was caused by his use of a motor vehicle as a motor vehicle in 2007.  Under these circumstances, we believe that the 2008 injury is simply too remote and too attenuated from the earlier use of a motor vehicle to permit a finding that the causal connection between the 2008 injury and the 2007 accident ‘is more than incidental, fortuitous, or ‘but for.’”  Citing Thornton, supra at 659.

Read the Court’s entire opinion here: McPherson v. McPherson