August 28, 2013
In the case of Detroit Medical Center v Progressive Michigan Insurance Co (Docket No. 304622, unpublished, 7/23/13), the Michigan Court of Appeals reversed a judgment entered by the Wayne County Circuit Court awarding the Detroit Medical Center (DMC) $111,761.40 for treatment provided to a young man seriously injured when he lost control of his motorcycle and crashed. Because the motorcyclist testified that he lost it when he applied his brakes suddenly to avoid colliding with an approaching automobile, the trial court found as a matter of law that the evidence showed sufficient “involvement of a motor vehicle” to satisfy the requirements of MCL 500.3105(1) and MCL 500.3114(5) and allow for the recovery of PIP benefits from the defendant insurer of the motorcycle’s owner.
A unanimous panel of the Court of Appeals disagreed and reversed in an unpublished per curiam decision. The opinion provided a concise, but thorough, discussion of the applicable case law on the extent of the causal connection between a motor vehicle and an injury-causing accident necessary to trigger no-fault insurance coverage. Because the injury was the result of a single-vehicle motorcycle accident (motorcycles are not classified as motor vehicles under the No-Fault Act), the court considered both the generally applicable standard of MCL 500.3105(1), i.e. injury “arising out of the ownership, operation, maintenance or use of a motor vehicle”, and the “involvement of a motor vehicle” standard under 500.3114(5), which sets forth the priority of insurers specifically with regard to injured motorcyclists.
The primary case regarding the “involvement of a motor vehicle” standard, which is actually found in several different provisions of the No-Fault Act, is Turner v ACIA, 448 Mich 22 (1995). That case held that the “involvement of a motor vehicle” standard is somewhat broader than the general “arising out of” standard. This was noted by the panel in the DMC case , but they found that neither standard could be met under the operative facts.
The key question for the court was whether “the motor vehicle actively contributed to the accident, rather than merely being present.” The court did acknowledge that the Turner case had specifically held that “physical contact is not required . . . nor is fault a relevant consideration” in deciding whether a motor vehicle was involved in a given accident. It also stated that there would be no question that the motor vehicle was involved if the motorcycle had actually come into contact with the approaching automobile.
Because there was no impact with a motor vehicle, however, the court looked at two published Court of Appeals cases with this characteristic in which a motor vehicle was still found to be involved in the accident and was able to readily distinguish them. In Bromley v Citizens Ins Co, 113 Mich App 131 (1982), which was cited by the trial court in support of its decision, a motorcyclist had crashed after a motor vehicle had veered across the center line into his path. In Greater Flint HMO v Allstate Ins Co, 172 Mich App 783 (1988), an automobile had stopped suddenly causing a chain reaction of emergency stops leading to a collision between two motorcyclists who were attempting to avoid the collision. Again, neither case involved any physical contact between the motorcycle and a motor vehicle, but the Court of Appeals had still found sufficient involvement the motor vehicle to require the payment of no-fault benefits.
After noting that the motorcyclist in this case was traveling 100 miles per hour on a dark and deserted side street approaching Jefferson Avenue in Detroit, the DMC panel held that the motorcyclist’s “subjective erroneous perceived need to react” to the sudden appearance of the automobile’s headlights was not enough to support a finding that the motor vehicle had actively contributed to the accident. Rather, “. . . the operation of the motor vehicle must have created an actual need for the motorcyclist to take evasive action.” (slip op at 4, emphasis in original)
Progressive was represented in this case by GLM’s Dan Saylor, who indicates that there will be a request submitted to the court to have this case published, as this last formulation helps to clarify the apparent tension in the language of Turner requiring the motor vehicle to “actively, as opposed to passively, contribute to the accident” and have “more than a random association with the accident scene” on the one hand, and its statement that fault is not “a relevant consideration in determining whether a motor vehicle is ‘involved in an accident'” pursuant to the no-fault act. The DMC court indicated its belief that Turner’s limitation on considering fault was meant to apply only when determining the cause of the accident and that fault may be considered in determining whether a motor vehicle was actually involved in the accident.
It is also our understanding that the plaintiff is going to file an Application for Leave to Appeal this decision.
LIMITED SPACE AVAILABLE – REGISTER NOW: TROY BREAKFAST SEMINAR
TROY BREAKFAST SEMINAR WILL TAKE PLACE ON THURSDAY SEPTEMBER 5, 2013 AT THE TROY MARRIOTT. CONTACT EILEEN CARTY AT ECARTY@GARANLUCOW.COM OR (800)875-7600.
SAVE THE DATE
BUCKEYE SEMINAR WILL TAKE PLACE ON THURSDAY OCTOBER 17, 2013 AT THE GREATER COLUMBUS CONVENTION CENTER. WATCH LAW FAX FOR FURTHER DETAILS REGARDING REGISTRATION AND AGENDA.
REGISTER NOW: BASICS OF MICHIGAN AUTOMOBILE NO FAULT INSURANCE LAW COURSE
Garan Lucow Miller, P.C. will be teaching the Basics of No Fault course on Tuesday evenings from October 1 through November 26, 2013. The classes will be held at the Lexington Hotel (soon to be named Crowne Plaza), 925 S. Creyts Road, Lansing, Michigan 48192 from 6:00 p.m. to 8:00 p.m.
The cost for this 9 week course will be $350.00 per person. GLM will offer a discounted rate for our clients that register 2 or more from the same company.
Please contact Eileen Carty at firstname.lastname@example.org to register, or call at (800) 875-7600.
Following is the Course Curriculum:
Week 1: October 1, 2013
Introduction – Why Does Michigan Keep No Fault?
Lecturer: John Whitman, GLM Ann Arbor office
Course Approach and Review of Materials.
Week 2: October 8, 2013
Mandatory Insurance and Definitions
Lecturers: Adam Gordon, GLM Ann Arbor office
Susan Williams, GLM Troy office
The Contract of Insurance – Certificate of Insurance – Rules of Interpretation – No Fault Definitions; Security Required; Penalties for Non-Compliance – Sections 3101, 3102 and 3103.
Week 3: October 15, 2013
Coverage and Exclusions
Lecturer: Daniel Saylor, GLM Detroit office
No Fault Coverage (i.e., entitlement) – Section 3105.
Week 4: October 22, 2013
Which Insurer Pays?
Lecturer: David Campos, GLM Grand Rapids office
Week 5: October 29, 2013
Benefits – Allowable Expenses and Property Protection Insurance
Lecturers: David Couch, GLM Grand Rapids office
Stacey King, GLM Detroit office
Week 6: November 5, 2013
Benefits – Wage Loss, Replacement Services and Survivors’ Loss
Lecturer: William Brickley, GLM Grand Blanc office
Week 7: November 12, 2013
Computation of Benefits – Limitations, Deductibles, and Coordination
Lecturers: Edward Freeland, GLM Troy office
Robert Goldenbogen, GLM Port Huron Office
Week 8: November 19, 2013
Statute of Limitations and Penalties
Lecturer: Emily Ross, GLM Troy office
Week 9: November 26, 2013
Deposition and Trial Skills Necessary for Defending No Fault Cases
Lecturer: John Whitman, GLM Ann Arbor office