PHYLLIS SCOTT V STATE FARM MUTUAL AUTOMOBILE INS COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PHYLLIS SCOTT, Co-Guardian and CoConservator, DONALD SCOTT, Co-Guardian and
JOHN PFEFFER, Co-Conservator of the ESTATE
OF KRISTEN KROHN, an Incapacitated
April 15, 2008
Ingham Circuit Court
LC No. 06-001595-AV
STATE FARM MUTUAL AUTOMOBILE
Advance Sheets Version
Before: Wilder, P.J., and Murphy and Meter, JJ.
In this case regarding injuries sustained in an auto accident, plaintiffs seek first-party
personal protection insurance benefits for the cost of cholesterol medication for Kristen Krohn
(Krohn). The Ingham County probate court denied a motion for summary disposition by
defendant State Farm Mutual Automobile Insurance Company. Defendant appeals, by leave
granted,1 the Ingham Circuit Court’s denial of defendant’s application for leave to appeal the
probate court’s ruling. We affirm.
Krohn (formerly known as Kristin Scott2) was involved in a motor-vehicle accident in
1981, three days before her 18th birthday. She sustained a brain injury and other injuries. Over
the years following the accident, Krohn received personal protection insurance benefits from
State Farm for her care, recovery, and rehabilitation.
Scott v State Farm Mut Automobile Ins Co, unpublished order of the Court of Appeals, entered
September 20, 2007 (Docket No. 276544).
Plaintiff Phyllis Scott is Krohn’s mother, her coguardian, and a coconservator of her estate.
Plaintiff Donald Scott is her father and her coguardian. Plaintiff John Pfeffer is a coconservator
of her estate and is an accountant from Brighton, Michigan.
Plaintiffs first became aware that Krohn had a high-cholesterol problem about 1991. For
a few years, the problem was treated through exercise and a restricted diet. Over time, Krohn’s
cholesterol fluctuated but mostly remained high.3 According to plaintiff Phyllis Scott, Dr.
Shirley J. Robertson was the doctor who prescribed cholesterol medication for Krohn. Krohn
began taking Zocor for high cholesterol in 1997.
Between 1991 and sometime in 1997, Krohn’s cholesterol was managed through a
restricted diet and exercise. During this time, according to Phyllis, Krohn did exercise on a
regular basis and had a personal trainer, but her weight increased. In September 1997, Dr.
Martin A. Jacobson wrote a letter to a State Farm adjuster, confirming an earlier discussion, and
opining that Krohn’s hyperlipidemia was directly related to the sequelae from her auto accident.
The doctor noted that since the accident Krohn was not able to do as much exercise as she
should, but mainly she had impairment of self-control from her head injury, which made it hard
for her to eat a reasonable diet. Dr. Jacobson added that he would make another attempt to help
Krohn with her diet by sending her to a nutritionist. This was done.
In May 2003, Dr. Michael T. Andary, who was treating Krohn, made a chart note
following a physical examination of Krohn. Krohn was having significant problems with her
right leg. When she sat for long periods in a car and started to stand, she got significant pain.
The pain was in the posterior part of the knee and the upper part of the calf. Krohn told Dr.
Andary that the pain began while she was riding her bike during an exercise program. Krohn
was afraid that doing more exercise would make the problem worse. Krohn reported pain down
into her foot, severe enough that she had been using a wheelchair around the house. Dr. Andary
reported that Krohn had a very ataxic gait and used a cane. Regarding the right-knee pain, Dr.
Andary identified numerous possible contributing causes, including the accident. Regarding
Krohn’s cholesterol problem, Dr. Andary opined that it was causally related to the auto accident,
It is my view that this hypercholesterolemia is at least partially related to
her traumatic brain injury. Her inability to exercise influences her weight.
Additionally her cognitive problems influence her eating behaviors. Her
treatment for hypercholesterolemia in my view should be covered by her Auto No
Fault insurance. [Emphasis added.]
Dr. Andary’s recommendations included obtaining an MRI (magnetic resonance imaging) of the
right knee and that Krohn refrain from further exercise pending the MRI results. The record
does not indicate when, if ever, Dr. Andary recommended resumption of an exercise program.
Later, the Zocor was not as effective as Dr. Robertson had wanted it to be, so she added
Zetia around December 2003. In or around 2004, Krohn was prescribed Vytorin, a combination
of Zocor and Zetia. State Farm refused to pay for Zetia or Vytorin, contending that the need for
Plaintiff Phyllis Scott has been diagnosed with a high-cholesterol problem since 1994. Thus,
Krohn has a family history of high cholesterol.
it was insufficiently related to the 1981 motor-vehicle accident. Plaintiffs commenced this action
in the probate court. Defendant moved for summary disposition, which the probate court denied.
Defendant filed an application for leave to appeal in the circuit court, which the circuit court
denied. We now affirm.
This case requires us to consider whether the cholesterol problem is one “arising out of”
the injuries sustained in the 1981 auto accident. MCL 500.3105(1). Statutory interpretation is a
question of law, reviewed de novo. Mt Pleasant v State Tax Comm, 477 Mich 50, 53; 729 NW2d
Michigan’s no-fault act, MCL 500.3101 et seq., provides:
Under personal protection insurance an 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.
Payable benefits are defined as follows, in relevant part:
(1) Except as provided in subsection (2), personal protection insurance
benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for
reasonably necessary products, services and accommodations for an injured
person’s care, recovery, or rehabilitation. [MCL 500.3107(1)(a).]
In Putkamer v Transamerica Ins Corp of America 454 Mich 626, 634-635; 563 NW2d
683 (1997), our Supreme Court stated:
In reviewing the requirement of subsection 3105(1) that the injury arise
out of the “use of a motor vehicle as a motor vehicle,” this Court concluded that
the Legislature has provided that there should only be coverage where the causal
connection between the injury and the use of the motor vehicle was more than
incidental, fortuitous, or “but for.” See Thornton v Allstate Ins Co, 425 Mich
643, 659; 391 NW2d 320 (1986.) See also Bourne v Farmers Ins Exch, 449 Mich
193, 198; 534 NW2d 491 (1995); Marzonie v Auto Club Ins Ass’n, 441 Mich 522,
530; 495 NW2d 788 (1992). [Emphasis added.]
Putkamer’s statement was made in the context of deciding whether a woman who slipped and
fell on ice while attempting to get into her parked car could recover personal protection
insurance benefits. On undisputed facts, the Supreme Court held that “plaintiff established as a
matter of law that her injury arose from the use of her parked motor vehicle as a motor vehicle . .
. .” Id. at 627. The Court was primarily interpreting MCL 500.3106(1), which currently
Accidental bodily injury does not arise out of the ownership, operation,
maintenance, or use of a parked vehicle as a motor vehicle unless any of the
(a) The vehicle was parked in such a way as to cause unreasonable risk of
the bodily injury which occurred.
(b) [T]he injury was a direct result of physical contact with equipment
permanently mounted on the vehicle, while the equipment was being operated or
used, or property being lifted onto or lowered from the vehicle in the loading or
(c) [T]he injury was sustained by a person while occupying, entering into,
or alighting from the vehicle.
Thus, while not exactly on point, Putkamer is instructive.
Both parties cite Kochoian v Allstate Ins Co, 168 Mich App 1; 423 NW2d 913 (1988).
Factually, the case is analogous, although, procedurally, it is not on point, because it does not
involve summary disposition.
Kochoian suffered a heart attack nearly three months after he was injured in a motorvehicle accident. He sought personal protection insurance coverage in the form of work-loss
benefits, contending that the heart attack arose out of the accident. After a bench trial in which
expert physician testimony was presented, the trial court entered a judgment of no cause of
action, and denied a motion for a new trial or judgment notwithstanding the verdict. Id. at 3.
Although the trial court erroneously used an incorrect standard of causation (requiring the heart
attack to have been “‘directly traceable’” to the accident), this Court nevertheless affirmed,
concluding that “even under the ‘arising out of’ standard plaintiff failed to prove his case by a
preponderance of the evidence.” Id. at 7. It further reasoned: “Indeed, our review of the record
convinces us that the trial court was correct in concluding that plaintiff’s heart attack, far from
being caused by his accident, instead constituted ‘an independent disabling injury that prevented
him from working.’“ Id. This Court continued:
We reach this conclusion while well aware that the term “arising out of”
does not require a showing of proximate causation, but rather something more
than a showing that the causal connection between the injury and the use of the
motor vehicle was merely incidental, fortuitous, or “but for.” Thorton v Allstate
Ins Co, 425 Mich 643; 391 NW2d 320 (1986); Krause v Citizens Ins Co of
America, 156 Mich App 438, 440; 402 NW2d 37 (1986); see also Shinabarger v
Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979) . . . .
In Thornton, supra, pp 659-660, the Supreme Court stated:
“In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited
no-fault PIP benefits to injuries arising out of the ‘use of a motor vehicle as a
motor vehicle.’ In our view, this language shows that the Legislature was aware
of the causation dispute and chose to provide coverage only where 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.’ The involvement of the car in the
injury should be ‘directly related to its character as a motor vehicle.’ . . .
Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1),
must be the relationship between the injury and the vehicular use of a motor
vehicle. Without a relation that is more than ‘but for,’ incidental, or fortuitous,
there can be no recovery of PIP benefits.” [Emphasis in original.]
Whether an injury may be characterized as “arising out of” the use of a
motor vehicle for purposes of no-fault personal protection benefits, and thus based
on a relationship with the use of the motor vehicle which is more than merely
incidental, fortuitous or “but for” with that use—or, put differently, is not so
remote or attenuated as to preclude a finding that it arose out of the use of a motor
vehicle—is a determination which depends on the unique facts of each case and,
thus, must be made on a case-by-case basis. In the present case, the facts reveal
that plaintiff’s parentage, habits and preexisting physical condition clearly
predisposed him to the heart attack which occurred almost three months after his
truck accident. He acknowledged, among other things, being overweight, having
smoked heavily for thirty years, having parents who died of causes related to heart
disease, having suffered from angina since 1980, and having high blood pressure
since 1977. In view of these circumstances, we find little indeed to support
plaintiff’s assertion that his heart attack was caused by his use of the truck during
his March 2, 1982, accident. [Kochoian, supra at 8-9 (emphasis in first paragraph
In Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301
(1979), this Court used other words to describe the “arising out of” test:
The relationship between use of the vehicle and the injury need not
approach proximate cause.
“[T]he term ‘arising out of’ does not mean proximate cause in the strict
legal sense, nor require a finding that the injury was directly and proximately
caused by the use of the vehicle, nor that the insured vehicle was exerting any
physical force upon the instrumentality which was the immediate cause of the
injury. That almost any causal connection or relationship will do . . . . Case law
indicates that the injury need not be the proximate result of ‘use’ in the strict
sense, but it cannot be extended to something distinctly remote. Each case turns
on its precise individual facts. The 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.” [Some internal quotation marks omitted, citations omitted.]
Similarly, in Bradley v Detroit Automobile Inter-Ins Exch, 130 Mich App 34, 42; 343 NW2d 506
(1983), this Court stated that the use of the motor vehicle need only be one of the causes of the
injury; there may be other independent causes. “‘[A]lmost any causal connection or relationship
will do.’” Id. (citation omitted). Thus, it is well settled that “arising out of” requires more than
an incidental, fortuitous, or but-for causal connection, but does not require direct or proximate
causation. Kochoian, supra at 8.
Here, plaintiffs responded to defendant’s motion by producing evidence of a causal
connection between the accident and the hyperlipidemia, and we consider that evidence in a light
most favorable to plaintiffs. McManamon v Redford Charter Twp, 273 Mich App 131, 134; 730
NW2d 757 (2006). Plaintiffs presented testimony indicating that the accident caused brain and
skeletal injuries, which make it difficult for plaintiff to exercise, and which contribute to poor
judgment regarding diet. Plaintiffs also presented evidence that this difficulty in exercising and
the poor diet contribute to hyperlipidemia. Plaintiffs are not required to establish direct or
proximate causation. Kochoian, supra at 8-9. Almost any causal connection will do. Bradley,
supra at 42. Although a genetic predisposition to hyperlipidemia is apparently present, there is
no authority that, for purposes of personal protection insurance, a plaintiff must exclude other
possible causes (as there is authority, for instance, when proximate causation is at issue in a
traditional tort context4). Plaintiffs have presented evidence sufficient to raise a genuine issue of
material fact. The chain of causation, under plaintiffs’ theory, though somewhat attenuated, is
not so long that its links are completely unable to support the burden of proof. There is
testimony indicating that there is no objective test that can distinguish between a case of
hyperlipidemia caused genetically and one caused by independent factors. Thus, the trier of fact
must decide whether the high-cholesterol problem is one “arising out of” the accident.
/s/ Kurtis T. Wilder
/s/ William B. Murphy
/s/ Patrick M. Meter
“[W]hile the evidence need not negate all other possible causes, this Court has consistently
required that the evidence exclude other reasonable hypotheses with a fair amount of certainty.”
Craig v Oakwood Hosp, 471 Mich 67, 87-88; 684 NW2d 296 (2004) (internal quotation marks,
brackets, and citations omitted).