IAN MCPHERSON V CHRISTOPHER MCPHERSON (Per Curiam Opinion)
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STATE OF MICHIGAN COURT OF APPEALS IAN McPHERSON, UNPUBLISHED January 10, 2012 Plaintiff-Appellee, v No. 299618 Oakland Circuit Court LC No. 2008-095926-NI CHRISTOPHER McPHERSON and AAA AUTO CLUB GROUP INSURANCE COMPANY, Defendants, PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant/Cross-PlaintiffAppellant, and AUTO CLUB INSURANCE ASSOCIATION MEMBER SELECT INSURANCE COMPANY and AUTO CLUB INSURANCE COMPANY, Defendants/Cross-Defendants Before: K. F. KELLY, P.J., and METER and GLEICHER, JJ. PER CURIAM. Ian McPherson drove his uninsured motorcycle into a parked car and sustained severe injuries. He contends that a seizure precipitated his motorcycle crash, and that a prior car accident caused his seizure disorder. The insurer that covered McPherson s no-fault benefits associated with the car accident denied liability for payment of no-fault benefits related to the motorcycle accident. The circuit court ruled that fact questions precluded summary disposition in the insurer s favor, and we affirm. -1- I. UNDERLYING FACTS AND PROCEEDINGS On November 25, 2007, plaintiff Ian McPherson rode as a passenger in a car driven by his brother, Christopher McPherson. Christopher lost control of the vehicle and it struck a freeway guardrail. Ian s head struck a deployed airbag. The next day, Ian got kind of a weird feeling when he stood up after smoking a cigarette, spun around and woke up in the hospital. According to Dr. M. Mazen Al-Hakim, Ian suffered a grand mal seizure triggered by the head injury and his ingestion of Adderal, a prescribed amphetamine. Dr. Al-Hakim opined that Ian also probably has an underlying genetic predisposition to seizures. After hospitalization for treatment of the initial seizure, Ian received follow-up neurological care from Dr. Brien Smith, an epilepsy specialist. Defendant Progressive Michigan Insurance Company bore responsibility for paying nofault benefits related to the 2007 accident. Alison Wieck, a Progressive claims supervisor, testified at her deposition that Progressive contacted Dr. Smith to obtain his opinion regarding whether the car accident caused Ian s seizure disorder. According to notes kept by a Progressive claims representative, Dr. Smith submitted an attending physician s statement attesting that Ian s seizures were solely related to the motor vehicle accident. Wieck admitted that after receiving Dr. Smith s statement, Progressive made no effort to obtain additional information or another medical opinion. On September 19, 2008, while riding his motorcycle on Woodward Avenue, Ian sort of had the same feeling I had from my first seizure, and then I didn t have enough time to pull over or anything. Before I knew it, I just kind of blacked out. His motorcycle crossed four lanes of traffic and struck a parked car. Ian suffered severe injuries in the 2008 accident, including ventilator-dependent quadriplegia. Ian submitted to Progressive a first-party, no-fault benefits claim arising from the motorcycle crash. When Progressive denied coverage, Ian filed this lawsuit. Progressive moved for partial summary disposition pursuant to MCR 2.116(C)(8) and (10). In support of its motion, Progressive argued that Ian s claim for first-party no-fault benefits related solely to the 2008 motorcycle accident rather than the 2007 car crash, and asserted that because Ian neglected to insure the motorcycle, he forfeited any entitlement to first-party no-fault benefits. In support of this argument, Progressive referenced documentary evidence including deposition testimony.1 In response to Progressive s summary disposition motion, Ian submitted the deposition testimony of Dr. Al-Hakim, who explained, If you have a head trauma causing amnesia or loss of consciousness, and especially if you have [a] genetic predisposition, and especially you [are] 1 In its initial brief in support of summary disposition, Progressive failed to raise any argument regarding the sufficiency of Ian s pleadings, despite that the motion invoked MCR 2.116(C)(8) as well as (C)(10). -2- taking [an] amphetamine, then you [are] going to have seizures in the future. Dr. Al-Hakim addressed the relationship between Ian s 2007 head injury and the 2008 seizure as follows: Q. Okay. And in terms of how much a role the I ll call it a head injury or well, the head injury he may have suffered in that November of 07 accident, how much did that play a role in the one that happened in September of 08? A. Well, posttraumatic seizure can happen at any time. You can have head trauma today, you can have seizure from posttrauma [sic] two days later, you can have it a year later, you can have it the rest of your life. In a bench ruling, the circuit court denied Progressive s motion, ruling as follows: In accepting the facts in the complaint as true the elements of the claim have been satisfied. Plaintiff has set forth a claim upon which relief can be granted. Further, reviewing the evidence in the light most favorable to plaintiff it is possible for a reasonable juror to determine the second accident was caused by the injuries suffered in the first. I m not saying it s the best case and I m not saying that you will necessarily prevail, but it does survive a summary disposition. So I m denying the motion for summary disposition. This Court initially denied Progressive s application for leave to appeal, McPherson v McPherson, unpublished order of the Court of Appeals, entered September 21, 2010 (Docket No. 299618), but on reconsideration granted leave to appeal. McPherson v McPherson, unpublished order of the Court of Appeals, entered November 1, 2010 (Docket No. 299618). II. ANALYSIS Progressive challenges the circuit court s summary disposition ruling, which we review de novo. Robertson v Blue Water Oil Co, 268 Mich App 588, 592; 708 NW2d 749 (2005). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Spiek v Dep t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. West, 469 Mich at 183. The parties dispute centers on whether the no-fault act, MCL 500.3101 et seq., obligates Progressive to pay personal protection insurance benefits flowing from the injuries Ian sustained in the 2008 motorcycle accident. An injured claimant s entitlement to personal protection benefits arises from MCL 500.3105(1), which states: Under personal protection insurance an -3- insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. However, the no-fault act precludes receipt of personal protection benefits if at the time of the accident the person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect. MCL 500.3113(b) (emphasis added). The accident for which Ian seeks first-party no-fault benefits occurred in November of 2007. Ian contends that his current injuries, including his seizure disorder, arose from his brother s operation of the insured motor vehicle that struck the guardrail. The phrase arising out of the ownership, maintenance or use of a vehicle has commonly been used in automobile insurance policies, and was apparently used in the no-fault act in awareness of that history. Miller v Auto-Owners Ins Co, 411 Mich 633, 638; 309 NW2d 544 (1981). In Shinabarger v Citizens Ins Co, 90 Mich App 307, 313; 282 NW2d 301 (1979), this Court observed that cases construing the phrase arising out of the . . . use of a motor vehicle as a motor vehicle uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. Id. Drawing on case law from other jurisdictions, the Shinabarger Court emphasized that the relationship between use of the vehicle and the injury need not approach proximate cause, and that [t]he question to be answered is whether the injury originated from , had its origin in , grew out of , or flowed from the use of the vehicle. Id. at 314 (internal citations omitted). In Scott v State Farm Mut Automobile Ins Co, 278 Mich App 578, 586; 751 NW2d 51 (2008), lv den on recon 483 Mich 1032 (2009), this Court explained that arising out of requires more than an incidental, fortuitous, or but-for causal connection, but does not require direct or proximate causation. Viewed in the light most favorable to Ian, sufficient evidence establishes a question of fact concerning whether the 2008 motorcycle crash originated from, had its origin in, grew out of, or flowed from the 2007 car accident. Drs. Smith and Al-Hakim unequivocally connected Ian s seizure disorder to the trauma Ian experienced when his head collided with the air bag. This evidence could support a jury s reasonable conclusion that Ian s 2008 bodily injuries arose from Christopher s operation of the vehicle involved in the 2007 crash. Alternatively stated, the connection between Ian s injuries and the 2007 accident is not so remote or attenuated as to preclude a finding that it arose out of the use of a motor vehicle. Kochoian v Allstate Ins Co, 168 Mich App 1, 9; 423 NW2d 913 (1988). And the evidence reasonably supports that the causal connection between the injury and the use of the motor vehicle was more than incidental, fortuitous, or but for. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 634; 563 NW2d 683 (1997). We reject Progressive s argument that the motorcycle accident constituted a separate and superseding cause of Ian s spinal cord injury, supplanting any relationship between the first accident and the second. In Shinabarger, this Court specifically noted that the existence of an independent cause for a claimant s injuries does not bar recovery under the no-fault act: Where use of the vehicle is one of the causes of the injury, a sufficient causal connection is established even though there exists an independent cause. . . . Shinabarger, 90 Mich App at 313 (internal citations omitted). In Scott, 278 Mich App at 586, this Court summarized, there is no authority that, for purposes of personal protection insurance, a plaintiff must exclude other possible causes of his injury. Had Ian injured his spinal cord in 2008 by falling from a ladder during a -4- seizure, Progressive would potentially bear liability. That Ian instead suffered a seizure while riding a motorcycle does not, standing alone, eliminate any connection between his 2007 head injury and the 2008 events.2 Shinabarger and Putkamer instruct that traditional tort causation concepts, including but for and proximate causation, do not govern whether an injury arises out of the operation of a motor vehicle as a motor vehicle. Rather, [a]ll that is required to come within the meaning of the words arising out of the . . . use of the automobile is a causal connection with the accident. Ins Co of North America v Royal Indemnity Co, 429 F2d 1014, 1018 (CA 6, 1970). While the phrase should not be extended to include entirely remote or utterly unforeseeable events, where a causal nexus links the operation of a vehicle and an injury, MCL 500.3105(1) compels coverage. Here, Ian has established a triable issue of fact whether his spinal injuries arose from Christopher s operation of the vehicle involved in the 2007 accident. We do not find persuasive Progressive s argument that DeSot v ACIA, 174 Mich App 251; 435 NW2d 442 (1988), compels a different result. In DeSot, the plaintiff s decedent struck a car while driving an uninsured motorcycle, and suffered fatal injuries. Id. at 252-253. The decedent also owned two insured vehicles, and his widow claimed no-fault survivors loss benefits based on the existence of those policies. This Court held that survivors no-fault benefits are derivative of the decedent s right of recovery and . . . the language of ยง 3113(B) which would have precluded the decedent s claim also disqualifies the claim of the survivors. Id. at 254. The plaintiff raised no claim in DeSot that an injury related to a separate accident subject to no-fault coverage occasioned her husband s motorcycle accident. DeSot neither controls the outcome in this case nor provides helpful authority. That this case involves two accidents not only distinguishes it from DeSot, but refutes the dissent s contention that Ian s uninsured status governs his ability to receive no-fault benefits for his quadriplegia. The dissent begins its analysis by asserting, [d]espite the fact that the no-fault act is free from a causation analysis, the majority focuses on the cause of the accident Ian s seizure. Post at 4. Yet in essentially the same breath, the dissent maintains that because [t]here is no question that the motorcycle crash caused [Ian s] paraplegia [sic], Ian s failure to insure the motorcycle compels a finding that Ian is disqualified from coverage. Post at 5 (emphasis added). Indisputably, the motorcycle accident constitutes the most proximate cause of Ian s spinal cord injury. But as the dissent correctly recognizes, at least in passing, tort law causation analysis does not control a claimant s eligibility to receive no-fault benefits. Rather, the statute commands that an insurer pay benefits for accidental bodily injuries arising out of the . . . operation . . . or use of a motor vehicle as a motor vehicle, subject to certain limitations. MCL 2 Although Progressive vigorously contests that Ian s seizure disorder arose from the 2007 accident, it presented no evidence contradicting Dr. Al-Hakim s testimony or the opinion apparently rendered by Dr. Smith. The record includes no evidence refuting Ian s claim that his seizure disorder arose from the 2007 car accident, or that a seizure triggered the 2008 motorcycle crash. -5- 500.3105(1). Ian asserts that his quadriplegia arose out of Christopher s operation of a motor vehicle. He grounds his benefit claim solely on the first accident. Thus, the issue presented is whether any evidence supports that Ian s quadriplegia arose from that accident. Something that aris[es] out of, or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen. People v Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006). Record evidence supports that the first accident bore a connective relationship with the second; viewed in the light most favorable to Ian, the second accident flowed directly from the first. The dissent simply ignores both the boundary of Ian s claim and the plain language of MCL 500.3105(1), which sets forth the rules governing first-party coverage determinations. Thornton, 425 Mich at 659-660. Lastly, we find no merit in Progressive s claim that the circuit court erred by failing to grant summary disposition based on MCR 2.116(C)(8). Summary disposition on the basis of subrule (C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Dalley v Dykema Gossett PLLC, 287 Mich App 296, 304; 788 NW2d 679 (2010) (internal quotation omitted). Regardless whether Ian s complaint omitted mention of the 2008 motorcycle accident, it stated a potentially valid claim for first-party benefits arising from the 2007 car crash. Accordingly, this argument is unavailing. Affirmed. /s/ Patrick M. Meter /s/ Elizabeth L. Gleicher -6-
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