Michigan Court of Appeals; Docket # 329507; Unpublished
Judges Riordan, Fort Hood and Servitto; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of/Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Uninsured Motorist Benefits
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving a motorcyclist who was injured when a metal object flew up from the roadway and hit him in the face, causing him to crash, the Court of Appeals held that State Farm’s motion for summary disposition was improperly denied on plaintiff’s PIP claim because plaintiff failed to establish the required causation for benefits under MCL 500.3105(1).
The Court further held that State Farm’s motion for summary disposition was properly denied on plaintiff’s uninsured motorist (UM) claim, because the presence of the metal object on the highway established a “substantial physical nexus” between a hit-and-run vehicle and the object.
Plaintiff was driving his three-wheeled motorcycle on a Canadian highway, traveling back to Detroit with a group of motorcyclists. Traffic reportedly consisted of cars and some trucks that were “carrying loads.” The motorcyclists were all traveling in the left lane. Plaintiff was riding in the middle, with others in front and in back of him. Raymond Nemeckay, one of the first motorcyclists, ran over a straight metal object that was lying almost all the way across the left lane. Nemeckay initially thought the object was road tar, but then thought it was a rubber strip as it got closer. When Nemeckay ran over the object, it rattled and flopped, but remained on the highway. David Bowerman, who was riding behind Nemeckay, then ran over the object, causing it to flip into the air. As the object fell, it hit plaintiff’s windshield, causing it to shatter. The object also hit plaintiff in the face. Plaintiff’s motorcycle veered to the left and he fell off into the roadway. Plaintiff sustained serious injuries to his head and face, which required extensive medical treatment and multiple surgeries. Nemeckay found the metal object next to the road and took a picture of it. Plaintiff and the other riders did not know where the object came from or how long it was in the road before it was hit. Nemeckay explained during his deposition that based on the object’s design, he knew it came from a specific type of truck. Larry Baareman, an expert in the trucking industry, acknowledged the object was a specific type of metal brace used to secure a protective covering on a truck.
Plaintiff filed this action after defendant State Farm denied him PIP and UM benefits. State Farm moved for summary disposition, arguing there was no genuine issue of material fact that plaintiff was unable to demonstrate the requisite causation to claim either PIP or UM benefits. The trial court denied the summary disposition motion as to the both claims. The parties later entered into a settlement agreement and the trial court entered a final judgment for plaintiff in the amount of $499,399.84 – $399,399.84 for the PIP claim and $100,000 for the UM claim. The final judgment included a stay of enforcement, pending resolution of State Farm’s appeal.
The Court of Appeals reversed the denial of State Farm’s summary disposition motion on plaintiff’s PIP claim, but affirmed the denial of summary disposition on plaintiff’s UM claim.
PIP Claim
The Court of Appeals held that summary disposition was proper on the PIP claim because plaintiff did not establish the required elements of causation. The Court said the sole issue was whether plaintiff established at least a genuine issue of material fact as to whether the motorcycle accident “arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle for purposes of §3105(1).”
Citing Detroit Medical Center v Progressive Mich Ins Co, 302 Mich App 392 (2013), the Court noted there is no “iron-clad rule” about what level of involvement is sufficient under §3105(1) and that “actual physical contact” between the motorcycle and a motor vehicle was not required, as long as “the causal nexus” was established. The Court cited its approval of the following passage in Detroit Medical Center, to describe the causal connection between the injury and the ownership, maintenance or use of a motor vehicle:
“However, while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. … The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. The causal connection between the injuries and the motor vehicle cannot be extended to something distinctly remote. … Moreover, the injuries must be more than tangentially related to the use of an automobile to trigger the entitlement to no-fault benefits. Actual physical contact between a motorcycle and a motor vehicle is not required to establish the requisite involvement of a motor vehicle in an accident as long as the causal nexus between the accident and the car is established. For a motor vehicle to be involved in an accident, it must actively, as opposed to passively, contribute to the accident, and have more than a random association with the accident scene. There must be some activity, with respect to the vehicle, which somehow contributes to the happening of the accident.”
According to the Court, plaintiff’s case was similar to Ricciuti v Detroit Auto Inter-Ins Exch, 101 Mich App 683 (1980), where a motorcycle skidded on a wet license plate. The Ricciuti panel held that plaintiff did not establish the requisite causation for PIP benefits. Similarly, in the present case, the Court noted that no one saw the metal object fall off a truck and no one testified they were following a truck “with the type of covering that Nemeckay, Baareman and the trucking industry expert believed the object came from.” The Court observed:
“Although the trucking expert believed that the metal object had fallen onto the highway relatively recently before the accident in light of Bowerman’s and Nemeckay’s testimony that the metal object was straight before they rode over it, there is still no indication that a motor vehicle engaged in any activity that played a causal role in the accident.”
According to the Court, the fact that the metal object may have previously been attached to a truck did not provide a sufficient causal connection between the ownership, use or maintenance of a motor vehicle and plaintiff’s injury. The Court explained:
“’Plaintiff has merely shown that his accident was incidentally or fortuitously related to the ownership, use, or maintenance of a motor vehicle.’ ... At most, an unknown motor vehicle may have passively contributed to plaintiff’s accident by depositing a metal object in the road, which a motorcyclist in plaintiff’s group subsequently ran over and thrust into the air. … As a result, plaintiff’s injuries are only tangentially related to the use of a motor vehicle, especially given the fact that, again, there is no evidence in the record that there was ‘some activity, with respect to the vehicle, which somehow contribute[d] to the happening of the accident.’ ... Moreover, the circumstances of plaintiff’s injuries were not ‘foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.’”
Therefore, the Court held that summary disposition should have been granted for State Farm, because reasonable minds could not differ that an “unknown motor vehicle depositing a metal object in the road at some point prior to the accident was merely an incidental, fortuitous, or ‘but for’ cause of the accident.”
UM Benefits
The Court of Appeals rejected State Farm’s argument that it was entitled to summary disposition on plaintiff’s UM claim because plaintiff failed to establish the required physical nexus for UM benefits.
According to the Court, plaintiff’s UM claim fell under the policy provision regarding hit-and-run vehicles, which said: “We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle. The bodily injury must be: 1. sustained by an insured, and 2. caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.” Looking to this provision, the Court stated:
“[T]his Court is not constrained to conclude that plaintiff is not entitled to UIM benefits in this case in light of the fact that plaintiff is not entitled to no-fault PIP benefits as a matter of law. Under the terms of the insurance policy and binding Michigan case law, the evidence presented below establishes a genuine issue of material fact as to whether the accident ‘involve[d] the operation, maintenance, or use of an insured motor vehicle as a motor vehicle,’ and whether the unidentified hit-and-run vehicle ‘str[uck]: a. the insured; or b. the vehicle the insured is occupying.’ …”
The Court explained that other appellate decisions have construed hit-and-run provisions as allowing coverage even if the accident involves “indirect physical contact,” as long as the proofs establish a “substantial physical nexus between the disappearing vehicle and the object case off or struck.” In particular, the Court cited Berry v State Farm Mutual Auto Ins Co, 219 Mich App 340 (1996), saying the UM provisions in Berry were nearly identical to the present case. The Berry panel recognized that the insurance contract dictates the circumstances under which UM benefits will be awarded and then a “substantial physical nexus” test is applied, the Court observed. In light of this, the Court concluded that State Farm was “incorrect that the language in its policy ‘only provides for a recovery where the insured is actually struck by an uninsured motor vehicle,’ not ‘where an unknown vehicle causes an object to hit an insured.’”
Based on the foregoing, the Court of Appeals said plaintiff provided sufficient evidence that could constitute “convincing and objective evidence of a hit-and-run vehicle in the absence of a continuous and contemporaneously transmitted force.” The Court observed:
“The deposition testimony regarding the location of the accident and the expert witness’s testimony that the metal object was a specific part of a truck strongly support an inference that the metal object at issue in this case fell off a truck and caused plaintiff’s accident. … [T]here is no indication that pedestrians accesses the area where the accident occurred. … [T]here were no businesses in the area of the freeway. … [T]he object was straight before it hit plaintiff and noticeably bent after it hit plaintiff. … All of this testimony supports an inference that the object had not been on the freeway for an extended period of time and that the group of motorcyclists were the first to strike the object.”
Accordingly, the Court concluded that, based on the evidence:
“a reasonable juror could infer that there was no logical explanation for the metal object to be on the roadway except that it fell off a truck. Therefore, the presence of the metal object on the highway — based on the surrounding circumstances and the absence of any other reasonable explanation for the metal object’s presence — established a substantial physical nexus between a hit-and-run vehicle and the object. … Therefore, plaintiff established a genuine issue of material fact as to whether he is entitled to UM benefits under his insurance policy with defendant.”
