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Volume XXV, No. 10, June 28, 2013          

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin and Simeon R. Orlowski

 

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COURT DISCUSSES “INVOLVEMENT” IN ACCIDENT INVOLVING TWO MOTORCYCLES AND A MOTOR VEHICLE

CONTRIBUTOR – SARAH NADEAU

 

On June 6, 2013, the Michigan Court of Appeals issued an unpublished, Per Curiam opinion in Grange Insurance Company of Michigan v Bozung, et al. (Docket No. 304557), in which it reversed the Circuit Court’s decision granting a directed verdict in favor of defendant and Judgment entered in favor of defendant, affirmed the Circuit Court’s denial of plaintiff’s motion for summary disposition, and remanded for a new trial.

In Bozung, defendant Dennis Bozung was operating his motorcycle on which his wife was riding as a passenger.  Defendant John Stowell was also operating his motorcycle on which his wife was riding as a passenger.  Defendants all claimed to have suffered injuries as a result of an accident that occurred involving the two motorcycles, and a motor vehicle owned and operated by plaintiff Grange Insurance’s insured, Ryan Heimlich.  Defendants sought to recover personal protection insurance benefits from Grange, claiming that the Heimlich motor vehicle was “involved in the accident” as that term is used in the Michigan No-Fault Act, MCL 500.3114(5).

Grange and the defendants filed several motions for summary disposition addressing whether the Heimlich motor vehicle was “involved in the accident.”  The Monroe County Circuit Court consistently found a question of fact regarding “involvement,” believing there to be a factual dispute as to whether defendant Bozung’s motorcycle made contact with the Heimlich motor vehicle, and whether defendants’ injuries arose out of that contact.  The matter then proceeded to trial, and at the close of defendants’ proofs, defendants’ moved for a directed verdict as to the question of “involvement.”  The Circuit Court granted defendants’ motion, finding as a matter of law that there was contact between the Bozung motorcycle and the Heimlich motor vehicle.  Further, the Circuit Court found that contact meant “involvement” pursuant to MCL 500.3114(5) and entered judgment in favor of defendants.

On appeal, the Michigan Court of Appeals affirmed the Circuit Court’s denial of Grange’s motion for summary disposition.  The Court of Appeals agreed that whether a motor vehicle is “involved in an accident” is a question of law for the Circuit Court to decide.  However, in this case, the Court of Appeals found that there were sufficient underlying disputed issues of fact which precluded a decision on a motion for summary disposition.

Specifically, the Court of Appeals noted that there was a genuine issue of material fact whether the Bozung motorcycle had physical contact with the Heimlich motor vehicle.  The Court cited Auto Club Ins Ass’n v State Auto Mut Ins Co, 258 Mich App 328, 339-341; 671 NW2d 132 (2003) as its basis for finding that, “if there was contact, then the Heimlich Suburban was, as a matter of law, involved in the accident.”  The Court of Appeals also opined there was a genuine issue of material fact as to whether Mr. Heimlich placed his Suburban in park while waiting behind another vehicle, or if he had the vehicle in drive with his foot on the brake.  The Court found that “[i]f a finder of fact concludes that the Suburban was in park, then the Suburban was involved in the accident as a matter of law because it actively contributed to the accident.”

Finally, the Court of Appeals found that defendants’ injuries arose from the use of the Heimlich motor vehicle as a motor vehicle, whether or not the Heimlich motor vehicle was “involved in the accident.”  The Court of Appeals opined that the causal nexus required for a motor vehicle to be “involved in an accident” is less stringent than that required for an individual’s injuries to have arisen from the use of a motor vehicle as a motor vehicle.  The Court found that defendants’ injuries in this case were the direct result of defendant Bozung’s attempts to avoid hitting the Heimlich motor vehicle so that the injuries arose out of the use of a motor vehicle as a motor vehicle.

Having reached the above conclusions, the Court of Appeals found that the Circuit Court improperly relied upon its own determinations of witness credibility in order to grant defendants’ motion for directed verdict.  The Court of Appeals reasoned that the testimony offered at trial was conflicting at best as to the issues of contact and whether the Heimlich vehicle was parked.  Therefore, the jury should have been permitted to determine which testimony was more credible.

On cross-appeal, defendants had argued their entitlement to attorney fees under MCL 500.3148(1), claiming Grange’s refusal to pay PIP benefits in this case was unreasonable.  The Court of Appeals found that Grange’s refusal to pay PIP benefits was reasonable in light of the factual questions surrounding the “involvement” of the Heimlich motor vehicle in the accident.  Thus, the Court of Appeals affirmed the Circuit Court’s decision to deny defendants’ motion for attorney fees.

This Court of Appeals decision is worth noting for one significant reason: The Court opined that whether or not there was contact between the Heimlich motor vehicle and the Bozung motorcycle, defendants’ injuries arose out of the use of the Heimlich motor vehicle because the injuries were the result of defendant Bozung trying to avoid hitting the Heimlich motorcycle.  In other words, the Court seems to suggest that vehicles stopped in the middle of a two lane road (in this case in order to allow oncoming traffic to clear so another vehicle might make a left-hand turn) will always be “involved in an accident” for purposes of recovering PIP.   Such a result seems contrary to the No-Fault Act provisions as a whole.

As of June 27, 2013, neither party had filed an application for leave to appeal with the Michigan Supreme Court.

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MEDICARE WEBLOG

Garan Lucow Miller announces GLM Medicare News, a new weblog dedicated to Medicare issues, including information on the Medicare Secondary Payer program, new decided cases, new proposed and adopted regulations, MMSEA reporting, and related topics. Find it at http://medicarenews.us

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Garan Lucow Miller, P.C., is offering a traveling Trial Boot Camp

This complimentary Trial Boot Camp would be presented to a group of 10 or more in your office, half day session.  Please contact Eileen Carty at ecarty@garanlucow.com or (248)641-7600.

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SAVE THE DATE

TROY BREAKFAST SEMINAR WILL TAKE PLACE ON THURSDAY SEPTEMBER 5, 2013 AT THE TROY MARRIOTT. WATCH LAW FAX FOR FURTHER DETAILS REGARDING REGISTRATION.