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Volume XXVIII, No. 7, March 24, 2016        

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

From the Editor: Sarah Nadeau

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COURT OF APPEALS DETERMINES NECESSARY PHYSICAL NEXUS IS A QUESTION FOR THE
JURY WHEN MOTORCYCLIST HITS A PIECE OF LOOSE LUMBER IN ROADWAY

By Kyle C. Kamidoi

In  Danhof v. State Farm Mut. Auto. Ins. Co., 2016 Mich. App. LEXIS 510, the Plaintiff, a motorcyclist, filed suit seeking uninsured motorist benefits for injuries that he sustained after his motorcycle struck a piece of lumber which had fallen into the roadway. The Michigan Court of Appeals vacated and remanded for further proceedings the Eaton County Circuit Court’s ruling that the Plaintiff failed to establish a factual question regarding the necessary physical nexus between the lumber and a disappearing vehicle.

Plaintiff Danhof alleged that he observed a commercial “Lowboy” truck pull out from a Speedway gas station. As Plaintiff proceeded through an intersection behind the commercial truck, a Chevrolet Aveo separated him from the truck. Suddenly, the Chevrolet swerved to avoid a 4×6 piece of wood that took up the entire lane of traffic. Plaintiff was unable to avoid the wood and was ejected from the motorcycle landing on his head and back. Plaintiff posited that the wood fell from the “Lowboy” and supported that assertion by stating 1) the “Lowboy” never swerved meaning the wood came from that truck, 2) many commercial vehicles use this type of wood to brace the wheels of equipment they are transporting; and 3) the wood was too large to have naturally fallen.

Plaintiff was insured with Progressive Michigan Insurance Company and secured UIM coverage of $100,000. Plaintiff also maintained additional vehicles which were insured with State Farm Mutual Automobile Insurance Company, also with $100,000 in UIM coverage. Progressive denied benefits after an employee stated that he just so happened to witness the incident and never saw the wood fall from the Lowboy. State Farm further denied based on the existence of the Progressive Policy and no evidence that the wood fell from the Lowboy.

Both insurance policies had language that defined an “Uninsured Motor Vehicle” as a land motor vehicle or trailer of any type whose owner or operator cannot be identified and which strikes 1) you or a relative, 2) a vehicle you or a relative are occupying; or 3) a covered motorcycle. Plaintiff brought suit against both insurers who argued that there was no evidence to support a claim that the wood fell from the Lowboy. The Circuit Court granted the insurers’ motions for summary disposition concluding that no evidence connected the wood with another motor vehicle, and therefore, no “connection or nexus” could be found.

In Berry v. State Farm Mutual Automobile Insurance Company, 219 Mich App 340, 347, the Michigan Court of Appeals held that the “hit and run” provisions in UIM contracts include coverage even in cases of “indirect physical contact,” such as where an object falls off or is cast off by another vehicle that leaves the scene. All that is required to support coverage is “a substantial physical nexus between the disappearing vehicle and the object cast off or struck…”

The Court of Appeals in this matter ruled that the Circuit Court erred in granting summary disposition when there could be a reasonable inference that the large piece of wood fell from the commercial vehicle. The Court pointed to deposition testimony of the Progressive claims adjuster who witnessed the incident, in which he stated that he never saw any other vehicles ahead of the Lowboy swerve to avoid the wood. Plaintiff testified that he spoke with a woman on the scene who witnessed a piece of wood on the Lowboy “Get jarred loose and fall or flip”, although she never actually saw the wood fall onto the roadway.

The Court of Appeals held that it could be reasonably inferred that the wood was only in the lane for a few seconds, and therefore, could have fallen from the Lowboy. As a result, there existed a question of material fact that neither the Circuit Court nor the Court of Appeals could dismiss before it was time. Ultimately, the Court ruled it was a question for the jury to decide if a causal physical nexus existed between the Plaintiff and the wood that fell from the Lowboy. The order granting summary disposition in favor of the insurers was vacated and the case was remanded back to the Circuit Court for further proceedings.

 

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REGISTER NOW!

GRAND RAPIDS SPRING BREAKFAST SEMINAR

April 21, 2016 at the Frederik Meijer Gardens and Sculpture Park

You and your co-workers are invited to attend our Annual Spring Breakfast Seminar at the Frederik Meijer Gardens and Sculpture Park on Thursday, April 21, 2016. After the seminar, please enjoy all of the indoor and outdoor garden areas as our guests, including the always wonderful Butterflies Are Blooming exhibit.

If you are able to attend this complimentary client event, please R.S.V.P., along with the full names and number of attendees, to Lynn Beatty at lbeatty@garanlucow.com or call our office at 616-742-5500. We look forward to seeing you at the gardens.


AGENDA

8:00 – 8:25 a.m.       Registration and Continental Breakfast

8:25 – 8:30 a.m.       Welcome and Introduction

L. Ladd Culbertson, Moderator

8:30 – 8:50 a.m.       Michigan Third-Party (Automobile Negligence and Premises Liability) Updates

How courts have applied McCormick v Carrier and Lugo v Ameritech over the past year

Speaker: Berton K. May

 8:50 – 9:10 a.m.       The Effect of Covenant v State Farm on First Party No-Fault (PIP) Settlements and the Continued
                                 Importance of Properly Drafted Releases and Dismissal Orders

Speaker: Paul W. Gipson

9:10 – 9:30 a.m.         Recent Challenges to the Innocent Third Party Rule in PIP Cases

Speaker: Tara L. Velting

9:30 – 10:00 a.m.       Utilizing Proprietary Software to Effortlessly Track and Document the Online Activity of
                                  Claimants or Plaintiffs

Guest Speaker: Curt De Vries, President of Fraudsniffr

10:00 – 10:15 a.m.      Break

10:15 – 11:30 a.m.      Michigan First Party No-Fault (PIP) Updates

A comprehensive review of significant court decisions over the past year

Speaker: Emily L. Partridge

 11:30 – 11:50 a.m.     Utilizing the Bankruptcy Code as a Tool for Insurers to Recover Benefits Paid to Insureds as the Result
                                   of Fraudulent Claims

Speaker: Courtney A. Krause

11:50 – 12:05 p.m.     Uber and Self-Driving Vehicles: the Implications on Coverage and Liability from
                                  Developing Technology

Speaker: David A. Couch

12:05 – 12:15 p.m.    Question and Answer Session with the Panel of Speakers

 

 

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SAVE THE DATE!

INDY CITY SEMINAR

The Indy City Seminar is scheduled for

Thursday, May 19, 2016

at the Indianapolis Marriott Downtown.

This will be an all-day seminar with No-Fault Updates in the morning and the Deposition Boot Camp in the afternoon.  Lunch will be provided.

Watch Law Fax and GLM’s website for seminar agenda.