March 29, 2011
The Michigan Court of Appeals recently ruled in the published opinion of Boertmann v Cincinnati
Ins Co, _____ Mich App _____, (2011) that a mother who witnessed her son’s death in a motor vehicle accident did sustain injuries that arose out of the use of a motor vehicle as a motor vehicle, entitling her to benefits.
The claim arose out of a fatal accident to Plaintiff, Gail Boertmann’s son, who was operating a motorcycle
directly in front of Ms. Boertmann when the accident occurred. The vehicle that Ms. Boertmann was driving was insured by Defendant, Cincinnati Insurance Company. Ms. Boertmann saw a vehicle make a wide turn into her son’s path and witnessed the two vehicles collide. Ms. Boertmann immediately proceeded to the parking lot where her son landed after the collision and went over to him. He was severely injured and was pronounced dead approximately 30 minutes after the collision.
Following the accident, Ms. Boertmann was treated and diagnosed by psychologists with post-traumatic
stress disorder (PTSD) and major depressive disorder. As a result of those conditions, Plaintiff also claimed
to suffer from insomnia, extreme fatigue, nausea, nose bleeds, sleep loss, loss of appetite, nightmares and
severe headaches on a daily basis.
Both parties filed for summary disposition arguing whether or not Ms. Boertmann’s injuries were injuries
“arising out of the ….use of a motor vehicle…” MCL 500.3105(1). The trial court initially granted Defendant’s
motion and denied Plaintiff’s, relying upon Williams v Citizens, 94 Mich App 762 (1990) and Keller v Citizens,
199 Mich App 714 (1993). However, Plaintiff moved for reconsideration and the trial court granted same,
vacating its prior opinion and order finding that the Williams and Keller cases were distinguishable because
Plaintiff actually witnessed the collision in this case. The Court here ruled that the trial court correctly concluded that the undisputed evidence indicated that Plaintiff’s injuries arose out of the use of a motor vehicle as a motor vehicle.
In reaching this decision, the Court found that the trial court correctly recognized that Plaintiff’s viewing
of the collision is a critical distinction between this case and Williams. In Williams, the Plaintiff’s daughter
suffered fatal injuries in a motor vehicle accident, but Plaintiff in that case did not see that accident, or view her daughter’s body within minutes of this occurrence. Accordingly, the court in Williams concluded that Plaintiff was not entitled to no-fault benefits, reasoning, “Plaintiff’s injury did not arise out of the ownership, operation, maintenance, or use of a motor vehicle. Rather, her injury arose out of the death of her daughter, which in turn arose out of the operation of a motor vehicle.”
Also, although the facts in Keller, are more analogous to the present case than the facts in Williams, the
Court of Appeals there still followed Williams because the Plaintiff’s stress in Keller was the result of the death, not what caused it. Specifically, although the Plaintiff in Keller heard the screech of the tires and immediately went outside to see her son’s body lying in the street where he had been struck by an automobile, Plaintiff’s grief over the death could have been from any cause. Accordingly, the court in Keller found that Plaintiff’s injury there was outside of the scope of coverage intended by 3105.
The instant case was found to be distinguishable from both Williams and Keller, primarily upon the
evidence from Plaintiff’s psychologists. Here, Ms. Boertmann’s psychologists submitted affidavits stating that
her PTSD was caused by her witnessing the collision which killed her son, not simply the result of her son’s
death. The psychologists on behalf of Ms. Boertmann explained that the traumatic incident was the collision
itself between her son’s motorcycle and the car that cut him off. That resulted in recurrent images and thoughts of the accident, causing marked diminished interest and ability to function, restricted affect and significant cognitive impairments. As such, Ms. Boertmann’s psychologists also believed it was quite evident that her depression was similarly and inextricably tied to the witnessing of the accident and to the PTSD.
Defendant argued that the claimant must be “actually involved” in the accident to recover no-fault
benefits. However, the Court found the case law simply did not support that argument, citing Jones v Tronex
Chem Corp, 129 Mich App 188 (1983) where a pedestrian could recover for injuries caused by lye that splashed up when a motor vehicle drove through a puddle and McMullen v Motor Insurance Corp, 203 Mich App 102 (1993) wherein a passerby was able to recover for injuries caused by steam released by another person who was maintaining his vehicle opened a cap on the radiator. The court in McMullen stated, “nothing in the language of the no-fault act requires that the injured person be the individual actually maintaining the vehicle in question.” These claimants’ injuries entitled them to no-fault benefits even though the injuries did not result from their own operation, use, ownership, or maintenance of a motor vehicle. Similarly, this court agreed that Plaintiff’s injuries need not result from her own use of a motor vehicle to fall within the scope of 3105(1).
Moreover, the Court rejected Defendant’s argument that there must be physical contact between the
claimant and the motor vehicle citing Musall v Golcheff, 174 Mich App 700 (1999) where the Plaintiff was not
injured by physical contact with the motor vehicle after inserting coins in a machine to begin washing his vehicle when the wash wand came loose and struck him. In Musall, Plaintiff’s injuries arose from contact with the wash wand as opposed to contact with its truck, and he was still entitled to no-fault benefits.
In light of the foregoing cases, and especially the undisputed evidence provided by Ms. Boertmann’s
psychologists, Ms. Boertmann’s injuries did arise out of the use of a motor vehicle as a motor vehicle, entitling
her to no-fault benefits.
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GARAN LUCOW MILLER
GRAND RAPIDS SPRING BREAKFAST SEMINAR
April 13, 2011 at Frederik Meijer Gardens and Sculpture Park
The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast
Seminar on April 13, 2011 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline, NE
in Grand Rapids {(616) 957-1580}.
Comprehensive written materials will be distributed to all who attend. After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit! In addition, a membership to Frederik Meijer Gardens and Sculpture Park will be
presented to two lucky seminar attendees, along with day passes to enjoy this lovely venue.
If you are able to attend this complimentary annual event, please register via e-mail to:
lbeatty@garanlucow.com or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations.
We look forward to seeing you!
8:00 – 8:25 am Registration and Continental Breakfast
8:25 – 8:30 am Welcome and Introduction
David N. Campos, Moderator
8:30 – 9:00 am The Three Phases of Surveillance
Speaker: Bob Chapman
Blue Diamond Investigations, LLC
9:00 – 9:20 am Premises Liability Update
C Lugo v Ameritech – Chinks in the Armor C Who will be Deemed an
Owner of an Animal that Causes Injury? C Social Host Claims – Narrow
Avenues for Recovery if the Facts are Right
Speaker: David A. Couch
9:20 – 9:40 am Adjusters and Their Estate Planning
C How to Avoid the 6 most Common Estate Planning Mistakes C Medicaid
Planning C Special Needs C New Tax Laws
Speaker: Tara L. Velting
9:40 – 10:00am Coverage Issues
C Fraud C Theft C Joyriding C Excluded Drivers C Excluded Drivers C
Priorities C Parked Vehicles C Alighting C ORV’s C UM/UIM
Speaker: Thomas G. Herman
10:00 – 10:15 am Break
10:15 – 10:35 am The Medical Marihuana Controversy
COverview of Michigan Medical Marihuana Act C How to Obtain It C Compensable Benefit in
Michigan under the No-Fault Act?
Speaker: Sarah L. Walburn
10:35 – 10:55 am No-Fault Home Accommodation Claims
C Griffith v. Wilcox
Speaker: Emily L. Partridge
10:55 – 11:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance
Life After “McCormick” C Surveillance and “the Pay Off”
Speaker: L. Ladd Culbertson
11:15 – 11:45 am Michigan Auto No-Fault Update
C Case Law Update C Year in Review and Anticipated
Future Case Law Development
Speaker: David N. Campos
11:45 – noon Questions and Answers
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GARAN LUCOW MILLER
INDY CITY SEMINAR – INDIANA & MICHIGAN LAW
May 18, 2011 at the Marriott Downtown Indianapolis
Garan Lucow Miller, P.C. is pleased to present our sixth annual seminar covering Indiana and
Michigan Law on May 18, 2011 at the Marriott Downtown Indianapolis, 350 W. Maryland Street,
Indianapolis, IN 46225 (317) 822-3500. The day will begin with a continental breakfast and registration at
8:30 a.m. followed by the program. Comprehensive written materials will be distributed to all seminar
attendees.
If you are able to attend this complimentary event, please register via e-mail to Eileen Carty at:
ecarty@garanlucow.com or phone Ms. Carty at (800) 875-7600 for reservations.
We hope to see you there!
8:30 – 8:55 Continental Breakfast & Registration
8:55 – 9:00 Welcome and Introduction
Speaker: David A. Couch
9:00 – 9:30 First Party Indiana Law Updates
Speaker: Gregory M. Bokota
9:30 – 10:00 Third Party Indiana Law Updates
Speaker: Jennifer L. McCloskey
10:00 – 10:30 Using Social Networking Sites as a Discovery Tool
Speaker: David A. Couch
10:30 – 10:45 Break
10:45 – 11:15 Michigan First Party No-Fault (PIP) Updates
Speaker: David N. Campos
11: 15 – 11:45 Criminal Defense in Catastrophic Injury Cases,
& the Impact of Criminal Restitution on Civil Liability and Subrogation
Speaker: L. Ladd Culbertson
11:45 – 12:00 Michigan Third Party Automobile Negligence Updates
Speaker: David A. Couch
12:00 – 12:30 Panel Discussion on Deposition Strategies and Tips for Testifying Effectively
Moderator: David A. Couch
12:30 – 1:00 Question and Answer Session
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UPCOMING SEMINARS
The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information.