“No-Fault” Wage-Loss Benefits Required to Be Paid to Unemployed Claimant Suffering Disabling Injury at the Time of Auto Accident

In Jones v. Home Owners Ins. Co.COA, a 2-1 unpublished opinion, the Michigan Court of Appeals held that a claimant suffering disabling injury in an auto accident was entitled to no-fault wage-loss benefits under Michigan’s No-Fault Act, characterizing her as “temporarily unemployed” under MCL 500.3107a.

MCL 500.3107 of the No-Fault Act provides for first-party insurer “work-loss benefits” for up to three years after a claimant suffers injury in an automobile accident.  MCL 500.3107(1)(b) defines “work loss” as “consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured.”  A party claiming work-loss benefits under this provision must show actual wage loss; a mere loss of earning capacity is not sufficient.  MCL 500.3107(1)(b); Davis v. State Farm Mutual Auto Ins. Co., 159 Mich. App. 734 (1987).

MCL 500.3107a takes this measured definition of work loss and applies it to the “temporarily unemployed”.  Thus, an insured may be found to be “temporarily unemployed” where he or she is, or would have been, but for the accident, actively seeking employment and there is evidence showing the unemployed status would not have been permanent.

A claimant seeking benefits under this provision must provide “independent corroboration” of both intent and actions taken to secure employment during the period of “temporary unemployment”.  Bare assertions of such intent are insufficient to invoke the right to these specific no-fault benefits.

In the instant case, the claimant was unemployed when she was injured in an automobile accident.  She sought first-party “wage-loss benefits” from her no-fault insurance carrier.  The insurer denied benefits on the basis that she was unemployed at the time of the accident and her circumstances did not meet the definition of “temporarily unemployed” within the meaning of MCL 500.3107(b)(1) and MCL 500.3107a.  The insurer conceded the plaintiff had been actively seeking work at the time of her injury, and during the period thereafter.  However, the insurer argued there was no evidence of any actual job offer and thus the evidence failed to establish she was only “temporarily unemployed” before the accident.

The question was presented to a jury.  The jury found that the plaintiff satisfied the requirement of “temporary unemployment” under the No-Fault Act and ordered benefits to be paid by the insurer.

The Court of Appeals affirmed, holding that plaintiff presented sufficient evidence of her job search efforts, and there was a reasonable likelihood that she would have been hired for a particular job opportunity she was contacted about days before the disabling accident.

Judge Saad dissents.  His opinion points out the problem with this provision of the No-Fault Act, which appears to allow wage-loss benefits to be awarded based only on speculation that a particular job opportunity would have come to fruition.

Judge Saad concludes that because the plaintiff could not prove a causal connection between the accident and an actual loss of income, benefits should not have been awarded.  Under MCL 500.3107(1)(b) a claimant seeking work-loss benefits must suffer wage loss or loss of income they would have earned but for the accident.  Judge Saad contends that this “measured definition” of “work loss benefits” then must be read in conjunction with the “special category” of accident victims:  the “temporarily unemployed”.  That provision allows wage loss benefits to be awarded where a person is “temporarily unemployed at the time of the accident or during the period of disability….”  MCL 500.3107a.

Reading the two provisions together, Judge Saad contends a person’s search for employment before and after an accident does not establish the prerequisite causal connection between the accident and the wage loss.  Because plaintiff’s evidence that she was a candidate for a potential job was not demonstrable proof that she would have actually secured such employment, she could not demonstrate she was temporarily unemployed, or as Judge Saad puts it “she provided no ‘evidence showing [her] unemployed status would not have been permanent if the injury had not occurred.'”  Slip Op. at 3.

This is an important decision, but it does little to aid the apparent gap in the statutory language that appears to allow wage-loss benefits to be awarded to someone who is in fact, like Plaintiff, unemployed (whether temporarily or not) at the time of the accident.  The statute provides no guidance on the necessity of showing a status other than unemployed before the accident, and whether that status was close in time to the accident, or, as in some cases, years prior.  In other words, the statute appears to allow an award of wage-loss benefits based merely upon the fact of a prior job, and a claimant’s assertions that they were seeking employment at the time of the accident.

Although the majority appears to follow the law in this case, and the facts appear to fulfill existing judicial interpretation of the meaning of “temporarily unemployed” under MCL 500.3107a, there are cases in which this provision can be abused precisely for the reasons set forth in Judge Saad’s dissent.

How can an insurer counter evidence proffered to demonstrate that a claimant ‘s “unemployed status would not have been permanent”?

Perhaps more searching inquiry should be made regarding the diligence and scope of the job search effort, the individual’s post-injury wage-earning capacity, and job availability in general.  What if the economic downturn makes it impossible for even the most qualified individual to obtain a job paying wages similar to those upon which the award is based, i.e., the last preceding job?  In such circumstances, how “temporary” is “temporary unemployment” if not for the entire three-year period that no-fault benefits are available under the No-Fault Act?

Perhaps vocational and rehabilitation expert evidence should be used to establish these factors, as with worker’s compensation claimant’s burden to prove an entitlement to total, as opposed to partial, or no, wage-loss benefits, i.e., the “disability and wage loss” provisions of MCL 418.301 of the Workers Disability Compensation Act.

I suspect the decision will be appealed to the Supreme Court for further evaluation.

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

 

 

Supreme Court Clarifies Meaning of “Unlawful Taking” Under Exclusion in Michigan’s No-Fault Act for Motorcycle Accident Claims

As I had predicted in earlier posts, the Supreme Court has ruled that a motorcyclist who borrowed a stolen motorcycle, but did not know the motorcycle had been stolen, was entitled to benefits under Michigan’s No-Fault Automobile Insurance Act, and the “unlawful taking” exclusion did not apply.  The Court issued its opinion yesterday in Rambin v. Allstate.

In a published opinion, the Michigan Court of Appeals had reversed a trial court decision denying the Plaintiff insurance benefits after he was injured in a collision with an automobile and the motorcycle Plaintiff was driving.  Unbeknownst to the Plaintiff, the motorcycle was stolen.  It was loaned to him by a friend who told him he could use it for a motorcycle riding event.

The Plaintiff pursued insurance benefits from the legal owner’s insurance company.  The insurance company denied benefits on the basis of MCL 500.3113(a) the “unlawful taking” exception to the statutory requirement for personal insurance protection benefits under the No-Fault Act.

Basing its decision on the Michigan Supreme Court’s recent decisions in Spectrum v. Farm Bureau and Progressive v. DeYoung, the latter of which I had written an amicus brief for in the Michigan Supreme Court on behalf of Insurance Institute of Michigan, the Court holds that because Plaintiff did not know the motorcycle had been stolen PIP benefits should have been extended to him from the true owner’s insurance company.

MCL 500.3113(a) provides:  A person is not entitled to be paid [PIP] benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed: (a) The person was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle….

In its opinion, released yesterday, the Court holds that since the evidence presented was that the plaintiff did not know the motorcycle had been stolen, he did not intend to take the vehicle without authority.  The exclusion in MCL 500.3113(a) does not apply in light of plaintiff’s belief that he had authority to take and use the motorcycle.  Therefore, the plaintiff would be entitled to personal insurance protection benefits if additional evidence did not reveal he knowingly took the motorcycle without authority.

The Court remands the case for additional evidence to determine whether the plaintiff had no knowledge about the motorcycle’s status as stolen property.

I previously wrote about this case and predicted its eventual arrival at and disposition by the Supreme Court.

Court of Appeals Decision in Rambin Places Case Squarely in Line for Supreme Court Consideration

What Does “Unlawful” Taking of Motorcycle Mean Under Michigan’s “Unlawful Taking” Exclusion of the No-Fault Act? Supreme Court to Consider

For more than a century, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• Estate of Truett v. Wayne County (Court of Appeals Docket No. 313638 (May 6, 2014)
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

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

 

Supreme Court Amicus Brief Filed in State Farm v. MMRMA Case Considering Whether Police Vehicle Pursuing Speeding Motorcyclist Sufficiently “Involved” In Motor Vehicle Accident to Require Apportionment of Liability Among No-Fault Insurance Carriers

I filed an amicus curiae brief on behalf of Oakland County, Macomb County and Wayne County in this case, urging the Supreme Court to grant Michigan Municipal Risk Management Authority’s application or, alternatively, to reverse the Court of Appeals.  My brief is attached here:  Supreme Court Amicus Curiae Brief for Oakland, Wayne and Macomb Counties stamped copy.

In State Farm v. MMRMA, Supreme Court Case No. 147752, the Court of Appeals held that a police vehicle pursuing a speeding motorcyclist was sufficiently “involved” in a motor vehicle accident between the motorcyclist and another vehicle, even though the police vehicle was nowhere near in proximity to the motorcyclist when he (or his bike) collided with the other vehicle, insured by State Farm.  This holding resulted in the apportionment of liability between the no-fault insurance carrier for the county and the insurer of the vehicle.  Michigan Municipal Risk Management Authority (MMRMA) filed an application for leave to appeal the Court of Appeal’s decision.

Technically, this case is a pure insurance coverage dispute between two no-fault automobile insurance carriers.  Since motorcycles are not covered “vehicles” under Michigan’s No-Fault Act (and motorcyclists are not obligated to carry no-fault coverage), when a motorcyclist suffers injury in a motor vehicle accident, the no-fault act contains a provision “prioritizing” which no-fault insurers are to be “on the risk”.  MCL 500.3114(5)(a).  Subsection 6 provides if “2 or more” vehicles are involved in the [motor vehicle] accident” the insurers in the same order of priority shall apportion liability among themselves.

There is much debate about this provision and the “scope” of its meaning in terms of which vehicles are, or, are not, “involved in” the motor vehicle accident.  Several prior cases from the Supreme Court and Court of Appeals interpreting other provisions of the no-fault act appear to give an “expansive” interpretation of the phrase “involved in”, which results in apportionment of coverage responsibility among multiple insurers.

Governmental entities are affected by this case because they are also responsible to provide the security (insurance) required by the no-fault act for the day-to-day operations involving government owned vehicles.  In addition to being contrary to the plain language of the statutory provision, the Court of Appeals decision makes no mention of the effect its ruling has upon government operations and the fiscal consequences of imposing liability under circumstances in which the government is performing an essential function – in this case, the law enforcement function.  There are two other applications pending in the Supreme Court requesting the Court to consider this same provision and the “scope” and meaning of the phrase “involved in” when “motor vehicles” are ostensibly involved in an accident in which a motorcyclist suffers injury.  I previously wrote about this case, as well as the other two.

Police Vehicle Pursuing Fleeing Motorcyclist “Involved In” Motorcyclist’s Accident With Another Motor Vehicle Triggering Insurance Coverage Obligation on the Part of the Governmental Entity

See also:  Braverman ex rel Smutski v. Auto-Owners Ins. Co., et al and DMC v. Progressive, et al.

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

Police Vehicle in Pursuit of Fleeing Motorcycle “Involved” in Motorcyclist’s Accident with Another Vehicle and County Liable to Participate with Auto Insurer in Reimbursement for Medical Care

In, State Farm v. MMRMA, the Michigan Court of Appeals addressed whether a police vehicle in pursuit of an uninsured motorcyclist who was fleeing was sufficiently “involved” in an accident between the motorcyclist and another vehicle such that the insurer of the latter vehicle (State Farm) could seek pro rata contribution from the county’s insurer, the Michigan Municipal Risk Management Authority (MMRMA) for reimbursement of medical and other expenses for the motorcyclist’s injuries.

The county sheriff observed the motorcyclist exceeding the speed limit and engaged to pursue and stop him.  After a chase at speeds of nearly 100 miles per hour, the sheriff lost sight of the motorcyclist, who had turned onto a winding dirt road.  The sheriff continued down the dirt road and soon noticed a plume of smoke in the distance.  He came upon a vehicle, which had collided with the motorcycle.  The motorcyclist was severely injured.  State Farm, the insurer of the motor vehicle that collided with the motorcycle paid personal insurance protection to the motorcyclist for his injuries in the amount of $675,114.16.  State Farm then sought contribution from MMRMA, which refused, asserting the sheriff’s vehicle was not involved in the accident.

State Farm filed a declaratory judgment action seeking contribution under Michigan Compiled Law (MCL) 500.3114(5), which provides:

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.

There were other issues raised in this appeal, but the primary, and therefore dispositive, issue concerned the question whether the motorcyclist’s accident arose out of a motor vehicle accident which involved the county sheriff’s patrol car.  If yes, then the county’s insurer was required by the terms of MCL 500.3114(5) to participate pro rata in the reimbursement by State Farm of the motorcyclist’s PIP benefits.

The Court of Appeals concludes the county sheriff’s patrol car was “involved” in the accident.  The Court states the motorcyclist’s injuries “shows evidence of the involvement” of the county sheriff’s patrol vehicle.  The Court relies on a 1995 Supreme Court case in which the court held a police vehicle pursuing a fleeing motorist was sufficiently “involved” in a multi-vehicle crash involving the motorist even though the police vehicle had backed off the chase moments before the accident.

In my judgment, reliance on the 1995 case is out of line with more recent pronouncements on causation by the Supreme Court.  See, for example, my discussion of another recent case in which, relying on more modern Supreme Court precedent, the Court of Appeals held that where a motorcyclist who avoided a collision with another vehicle, an auto insurer would not be responsible to reimburse medical expenses incurred by the motorcyclist.  That post discussing the case is here:  DMC v. Progressive – Hospital Not Entitled to Reimbursement from Auto Insurer Where Motorcyclist’s Injuries Caused by Attempt to Avoid Collision with Motor Vehicle

Granted, the statutory provision in that case is the more general causation statement in MCL 500.3105, but the Court of Appeals here attempts nonetheless to distinguish “single vehicle” involvement with multi-vehicle involvement in the accident by relying on the vitality of the 1995 Turner decision by the Supreme Court.   Such a causation analysis seems contrary to the causation analysis employed in the more recent decision McPherson, discussed in my previous noted blog post, and further discussed in my post about that case here:  McPherson v. McPherson – Recent Pronouncement by Supreme Court on Level of Causation Required Under No-Fault Act

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.

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

No-Fault Insurer Entitled to Judgment on Hospital’s Claim for Reimbursement of Medical Expenses for Motorcyclist’s Injuries for Accident Caused in Avoiding Collision with Motor Vehicle

In DMC v. Progressive, The Court of Appeals reversed a trial court judgment for the plaintiff hospital which sought reimbursement from defendant no-fault insurer of medical expenses for care to an injured motorcyclist.

The motorcyclist suffered serious injuries after he ditched his bike to avoid a collision with an automobile about to cross into his path.  The motorcycle never came into contact with the vehicle.

The hospital rendered medical services to the motorcyclist in the amount of approximately $112,000 and then sought reimbursement from the motorcyclist’s household automobile no-fault insurer.  The insurer objected on grounds the No-Fault Act, MCL 500.3101, et seq., excludes motorcycles from the definition of motor vehicle.  See MCL  500.3101(2)(e).  While motorcycles are excluded from the definition of motor vehicles, a sufficient causal connection between a motorcyclist’s accident causing injury and a motor vehicle will allow recovery by the motorcyclist of personal insurance protection benefits under the No-Fault Act. The 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.  MCL 500.3105(1).  

Based on the evidence before it (and, apparently without a jury impaneled), the trial court ruled the hospital was entitled to recovery for the care and treatment of the injured motorcyclist.  The insurance company appealed and the Court of Appeals reversed.  

Characterizing the question as one of law, to wit, the extent of the motor vehicle’s involvement in the motorcyclist’s decision to ditch his bike, the Court of Appeals engages in a causal relationship test.  The Court concludes the nexus between the motorcyclist’s actions and conduct and the alleged fear of collision with the approaching motor vehicle was not sufficient to conclude that his injuries arose out of the use, operation or maintenance of a motor vehicle as a motor vehicle.  The Court analogizes the case to the recent McPherson decision, which I previously wrote about here (McPherson v. McPherson), to the causal tenuousness in this case.  McPherson however, involved a claim for injuries suffered in a motor vehicle accident when the injured plaintiff suffered a seizure while riding a motorcycle.  His injuries were significant in the second accident as he was rendered a paraplegic.  However, since he could not recover no-fault benefits for the second accident because he was riding a motorcycle, which is excluded, he sought to have benefits extended by alleging that the earlier motor vehicle accident was the true cause of his seizure, which caused the accident resulting in his injuries.  The Supreme Court disagreed.

Here, the Court holds that the perceived, but subjective and unfounded fear of collision with an approaching motor vehicle is not a sufficient nexus of involvement by a motor vehicle to allow recovery of no-fault benefits.  Hence, the hospital was not entitled to reimbursement from the no-fault insurer.

In my judgment, the Court of Appeals overstepped its boundaries here by concluding it is a question of law whether the approaching motor vehicle was involved in the accident.  After noting the question of such involvement is to be taken on a case-by-case basis, it appears to remove from the province of the trial court that part of the fact-finding function entitled to deference.  Having concluded the question is one of pure law, it was free to review the case de novo.  Then, it is free to conclude the motorcyclist’s fear of a collision with the vehicle was subjective and unfounded, and that the mere perception of an inevitable collision is insufficient to give rise to the causal connection required to recover no-fault benefits.

These appear to be the types of cases where it would be wise to develop a factual scenario that requires significant factual conclusions on the part of the trial court and / or a jury.  Was the testimony of the driver of the motor vehicle offered?  Was he or she even identified?  Was there any other factual information that could have led the trier of fact to conclude that a pending collision with the motor vehicle was more than an unfounded and subjective perception?  Although, the Court of Appeals concludes the facts were insufficient to establish the requisite causal connection, i.e., the proximate cause (a fundamentally mixed question of law and fact ordinarily reserved to the province of the finder of fact in the given case), to sustain the hospital’s claim against the no-fault insurer, this does appear to be a judicial choice made by a higher tribunal, rather than an unequivocal application of the rule of law.

In any event, the case provides an interesting explanation of this panel’s view of the causal relationship test to prove an entitlement to no-fault benefits.  I believe the Supreme Court might take a closer look at this case if the hospital were to challenge the ruling.