EST OF RICHARD EUGENE BRZAK V ALLSTATE INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF RICHARD EUGENE BRZAK,
UNPUBLISHED
April 17, 2003
Plaintiff-Appellee,
v
No. 236745
Gratiot Circuit Court
LC No. 00-006202-NI
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
Before: Talbot, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right the judgment of $125,073.45, entered after a jury trial, in
this automobile no-fault case. We affirm.
Plaintiff’s decedent (“Brzak”) died when he had an epileptic seizure while driving and
crashed his pickup truck into a tree, throwing his body across the seat of the truck and pressing
his head against the passenger door. The autopsy identified the cause of death as “positional
asphyxia,” meaning he had asphyxiated in his truck due to the position of his head, which
blocked his airway. He otherwise sustained only minimal injuries from the collision. Although
defendant presented experts to testify that Brzak could have died from “sudden unexplained
death” (which can occur when the seizure triggers cardiac arrhythmia), and that positional
asphyxia can occur in many situations, including when the epileptic turns over while sleeping
and smothers against a pillow, the jury found his death arose “out of the ownership, operation,
maintenance or use of a motor vehicle as a motor vehicle,” as required by MCL 500.3105(1).
After trial, the court awarded plaintiff no-fault benefits, penalty interest, pre-judgment interest,
actual costs, and no-fault attorney fees.
Defendant first asserts that the trial court erred when it denied defendant’s motions for
directed verdict, judgment notwithstanding the verdict (JNOV), and new trial. We disagree.
We review the trial court’s decisions on these motions de novo. Derbabian v S & C
Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002); Morinelli v Provident Life &
Accident Co, 242 Mich App 255, 260; 617 NW2d 777 (2000). We consider all the evidence
presented up to the time of the motion to determine whether a question of fact existed, viewing
the evidence in the light most favorable to the defendant, granting the defendant every
reasonable inference, and resolving any conflict in the evidence in the defendant’s favor.
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Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998) (directed
verdict); Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998) (JNOV).
Michigan’s no-fault act 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.” MCL 500.3105(1). The no-fault act is remedial in nature and must be liberally
construed in favor of the persons intended to benefit from it. Cruz v State Farm Mut Auto Ins
Co, 466 Mich 588, 604; 648 NW2d 591 (2002). If the injured person’s presence in the
automobile is merely fortuitous, or there is no causal nexus between the injury and the
ownership, maintenance, or use of the motor vehicle, then recovery is not available. Thornton v
Allstate Ins Co, 425 Mich 643, 659-660; 391 NW2d 320 (1986).
Defendant relies on Denning v Farm Bureau Ins Group, 130 Mich App 777; 344 NW2d
368 (1983), where the decedent died from inhaling fumes emanating from the toxic chemicals he
was transporting. The Denning Court set forth a two-pronged test: “(a) Could the injury just as
well have occurred elsewhere? If so, there is no recovery. (b) Was the act which immediately
precipitated the injury identifiable with the normal use of a motor vehicle? If so, there is
recovery.” Id. at 786. However, in all of the cases examined and analyzed by Denning, supra,
the vehicle was not the proximate cause of the injury.
In the present case, Brzak’s death was apparently caused by his position in the truck.
Had he been elsewhere when he had a seizure, he would not have been in the same position.
Defendant’s argument is akin to arguing that because a severe cut can occur anywhere, a person
cannot recover who slices open a hand while exiting a motor vehicle after an accident. The agent
causing the injury in this case was the truck and the accident. There was ample evidence
supporting the jury’s conclusion that Brzak’s position, the cause of his death, was produced by
the truck and arose out of his use of the truck as a motor vehicle.
Defendant next argues that the trial court’s failure to give part of a requested special
instruction requires reversal. Again, we disagree.
A trial court’s decision whether to give a special jury instruction is reviewed for an abuse
of discretion and it will not be reversed unless failure to do so would be inconsistent with
substantial justice. Stoddard v Manufacturers Nat’l Bank of Grand Rapids, 234 Mich App 140,
162; 593 NW2d 630 (1999); Szymanski v Brown, 221 Mich App 423, 430; 562 NW2d 212
(1997).
Defendant requested the court give, in addition to the standard jury instruction SJI2d
35.02, a special instruction that read:
In order to find that the death of Plaintiff’s decedent arose out of his use of
a motor vehicle as a motor vehicle, you must find that the causal connection
between the decedent’s injury and his use of a motor vehicle as a motor vehicle
was more that [sic, than] incidental, fortuitous, or “but for.” Involvement of the
vehicle in decedent’s injury should be directly related to its character as a motor
vehicle. In other words, you must determine if the decedent’s death was closely
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related to the transportational function of a motor vehicle. If you find that the
decedent’s injury could just as well have occurred elsewhere there is no recovery.
The court approved all of the instruction except the last sentence. It found the first part of
the instruction “clarifies for the jury that there must be a causal connection between the injury
resulting in the plaintiff’s decedent’s death, and the use of a motor vehicle as a motor vehicle in
order for plaintiff to recover. The last sentence, however, it found was not “an accurate
statement of the law.” This conclusion is accurate. Defendant’s instruction embodies the test set
out by Denning, supra at 786. This test does not apply when the vehicle itself is the proximate
cause of the injury, as here. Therefore, the last sentence of defendant’s requested instruction was
not an accurate statement of the law in this case, and the trial court did not abuse its discretion in
failing to give that part of the special instruction to the jury.
Finally, defendant argues that the trial court clearly erred by awarding plaintiff attorney
fees under MCL 500.3148(1). Specifically, defendant claims that there was a bona fide factual
dispute regarding the cause of Brzak’s injury so that the benefits were not overdue under the nofault act. We disagree.
The decision to award or deny attorney fees is reviewed for an abuse of discretion.
Beach v State Farm Mut Auto Ins Co, 216 Mich App 612, 628; 550 NW2d 580 (1996). Absent
clear error, this Court will not reverse a trial court’s finding regarding an unreasonable refusal or
delay in paying benefits. Attard v Citizens Ins Co of America, 237 Mich App 311, 316-317; 602
NW2d 633 (1999).
MCL 500.3148(1) provides:
An attorney is entitled to a reasonable fee for advising and representing a
claimant in an action for personal or property protection insurance benefits which
are overdue. The attorney’s fee shall be a charge against the insurer in addition to
the benefits recovered, if the court finds that the insurer unreasonably refused to
pay the claim or unreasonably delayed in making proper payment.
If the insurer’s refusal or delay in payment is the product of a legitimate question of statutory
construction, constitutional law, or a bona fide factual uncertainty, the refusal or delay will not
be found unreasonable under MCL 500.3148(1). Beach, supra at 629. However, in such a
situation, the insurer must overcome a rebuttable presumption of unreasonableness and justify its
delay or refusal of benefits. Id.
In the present case, the trial court said, “[D]efendant always ignored the fact that Mr.
Brzak was involved in a motor vehicle, that he was using a motor vehicle as a motor vehicle
when this accident occurred,” and thus found no need to construe the statute. The injury arose
out of the use of a motor vehicle as a motor vehicle, and the simple fact that Brzak could have
also died in his sleep was not relevant to the facts at hand. Defendant’s insistence that there is no
recovery because the death could have occurred elsewhere is not an accurate application of law.
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Furthermore, the trial court’s finding that there was no bona fide question regarding the
cause of death was not clearly erroneous. The autopsy listed positional asphyxia as the cause of
death, and only defendant’s hired experts refuted the likelihood of the truth of that diagnosis.
Clear error exists when a reviewing court is left with the definite and firm conviction on the
entire record that a mistake was made. Christiansen v Gerrish Twp, 239 Mich App 380, 387;
608 NW2d 83 (2000). That cannot be said in this case.
Affirmed.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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