April 24, 2015
In Frankenmuth Ins Co v. Progressive Michigan Ins Co, unpublished opinion per curiam of the Court of Appeals, issued March 19, 2015 (Docket No. 319855), Jeanine Serba, who was insured under a policy issued by Frankenmuth, was a passenger on a motorcycle being driven by Daniel Martin. While traveling on the entrance ramp to US-131 northbound from I-196 westbound, Martin swerved, struck the curb and lost control of the motorcycle. Both he and Serba were thrown from the motorcycle and Martin observed Serba lying in the road and badly injured. As Martin went to get his motorcycle out of the road, Serba was struck by a van being driven by Miguel Correa, which was insured by Progressive. A witness estimated three to four minutes elapsed between the time Serba was thrown from the motorcycle and Serba being struck by Correa’s van.
Frankenmuth took the position that Progressive was higher in the order of priority pursuant to MCL 500.3114(5), which states, in pertinent part: “A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) the insurer of the owner or registrant of the motor vehicle involved in the accident….”
Progressive argued that Frankenmuth was higher in the order of priority pursuant to MCL 500.3115(1) where the accident did not occur while Serba was an operator or passenger of a motorcycle, but rather while Serba was a pedestrian.
In analyzing the purpose, and application, of MCL 500.3114(5), the Court of Appeals discussed two hypothetical situations. On one hand, if Serba had fallen or been thrown from the motorcycle and then struck almost immediately by a trailing motor vehicle, she would have been a passenger of the motorcycle. On the other hand, if Serba had fallen or been thrown from the motorcycle, followed by Serba picking herself up from the pavement, moving to the shoulder’s roadway, and then walking on the side of the entrance ramp, at which point she was struck by a motor vehicle, then she would not have been a passenger of a motorcycle.
The Court of Appeals determined that the instant matter fell in between the two fact patterns, as a few minutes passed between Serba being thrown to the pavement and her being struck by the motor vehicle. However, during that time period, she had remained in the roadway, clearly immobilized. Therefore, the Court of Appeals held that MCL 500.3114(5) was triggered where a sufficiently direct correlation existed between the operation of a motorcycle, the operation of a motor vehicle, injuries arising from an accident involving the motor vehicle, and the injured party’s status as the operator or a passenger of the motorcycle.
Save The Date! | Thursday, June 18, 2015 | Windy City Seminar
The 2015 Windy City Seminar will take place on Thursday, June 18, 2015 at the Chicago Marriott Schaumburg.
Illinois Continuing Education Credits will be offered.