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

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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

Michigan Supreme Court Rules Physical Custody of Children Per Court Order Under Child Custody Act Determines “Domicile” for Purposes of Allocating Priority of Coverage and Risk Sharing Among Automobile Insurers Under Michigan’s Automobile No-Fault Insurance Act

In a 4-3 opinion (authored by Justice Kelly and Joined by Chief Justice Young and Justices Cavanagh and Viviano) the Court addressed the meaning of the legal term “domiciled” in MCL 500.3114(1) of Michigan’s No-Fault Automobile Insurance Act, which establishes the primary insurer for purposes of covering claims arising out of injuries from automobile accidents.

In Grange Insurance Co. v. Lawrence, the Court addressed the term “domiciled”.  Under MCL 500.3114(1) “personal protection insurance polic[ies]…appl[y] to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.”  Further, under MCL 500.3115(2), where two or more insurers are in the same order of priority, the insurer paying benefits is entitled to partial recoupment from the other insurers in the same order of priority.  The first case addressed by the court involved a situation in which the trial court concluded the decedent who was killed in the accident had two “domiciles”, thus placing two insurers in the same order of priority of coverage.  Under MCL 500.3114(4) where no policy of a named insured, that person’s spouse or a relative of either domiciled in the same household covers the accident, the priority is established as the insurer of the motor vehicle, or the insurer of the operator of the motor vehicle.  This was the situation in the second case addressed by the opinion in which the decedent was a minor whose physical custodial parent lived in Tennessee.  She was living temporarily at her uncle’s house attending school in Michigan when she was killed in an accident while riding in a friend’s car.

The Court noted the term “domiciled” was a legal term of art which the common law jurisprudence in Michigan for the last 165 years had defined as a person’s principal residence.  The Court also pointed out under that jurisprudence “domicile” has always been a singular place at which a person resides at any given point in time.

The Child Custody Act (CCA), MCL 722.21 et seq., governs domestic orders of custody arising out of divorce proceedings.  Although “legal” custody and “physical” custody can have separate meanings under the CCA, the “physical” custody awarded by the court identifies and thus dictates the locus of the child’s “domicile”.  The CCA is therefore consistent with the common law.

Thus, a court order’s custody award designation of who has “physical” custody will be the determining factor for insurers in considering whose insurance covers the risk under MCL 500.3114(1), and whether and to what extent another insurer is entitled to seek subrogation based on the sharing provision in MCL 500.3115(2).

In the two cases consolidated for this opinion, the Court ruled the court’s orders awarding physical custody of the minor children killed in the separate accidents was the determinative factor in assessing which insurer would be liable for the claims asserted for insurance benefits.

In the first case, the child was killed while riding with the mother, who had physical custody and shared joint legal custody of the child with the child’s father.  The auto insurer of the mother sought to recoup partial benefits for the payout on the claim from a policy held by the child’s father.  The trial court found the child had two domiciles at the time of her death and thus, MCL 500.3115(2) allowed the insurers to share in the payment of the claims.  The Court of Appeals affirmed and appeal was granted by the Supreme Court.  The Supreme Court reversed, holding the insurer of the decedent’s mother was the primary insurer because she had been awarded physical custody in the divorce proceedings.

In the second case, the decedent’s father had physical custody of her and resided in Tennessee.  The “household” insurer of her uncle, in whose house she was temporarily residing to attend school, sought a declaration as to its liability for coverage vis-a-vis the insurer of the automobile in which she suffered her fatal injuries.  The household insurer argued that the insurer of the vehicle was primary because no policy of a named insured, a named insured’s spouse or a relative “domiciled” in the same household would apply because she was not “domiciled” in Michigan, but rather was domiciled in Tennessee per the court’s custody order.  The trial court disagreed, ruling that the “household” insurer covered the risk and was responsible.  The Court of Appeals reversed, concluding there was a question of fact concerning decedent’s true domicile.  The Supreme Court granted the appeal and reversed, holding that the insurer of the vehicle in which the decedent was killed was the primary insurer and covered the risk.  There was only one “domicile”, that being the locus in Tennessee.  As the decedent was not therefore “domiciled” in the uncle’s house, the priority insurer fell to the insurer of the vehicle in which she was riding at the time of her death.

In its opinion, the Court resolves the question of which insurance companies would be primarily liable to cover the risk and whether any other insurers would be required to share in payment of the claims.  Even where a minor child or ward has two legal residences, the only concern when assessing coverage is which household is the locus of the “domicile”.

Justice Zahra, joined by Justices Markman and McCormack, agreed that the No-Fault Act’s reference to “domicile” was defined by the common law, but disagreed that a court’s order issued under the Child Cutdosdy Act should be the end point in the analysis. Rather, Justice Zahra argued the court’s order should raise a rebuttable presumption of actual “domicile” but the parties might be afforded an opportunity to present evidence establishing a different domicile in accordance with the traditional factors for assessing same under the common law.  Justice Zahra points out the majority’s opinion assumes automatically that the a court’s custody order dictates the location of domicile (even where the arrangement of the parties or the actual circumstances might be different); the opinion allows, in some circumstances, the order to establish an alternate domicile system actually inconsistent with the common-law rule a person can have only one domicile at a given time; and the opinion’s effect infringes on an insurer’s ability to properly assess risk and burdens insurers with having to inquire about or determine the meaning and import of a court’s custody awards.

This is a very significant case that provides guidance to insurance companies writing auto no-fault policies in Michigan and to attorneys representing the diverse parties likely to be involved in such litigation.

If you would like more information about this case contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP

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