Michigan Court of Appeals; Docket # 336455; unpublished
Judges Tukel, Beckering, and Shapiro per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent
STATUTORY INDEXING:
Determination of Involved Vehicle [§3113(b)]
TOPICAL INDEXING:
Intervention by Service Providers and Third Party Payors in PIP Claims
SUMMARY:
In this non-unanimous unpublished per curiam opinion, the Court of Appeals reversed the trial court’s order granting summary disposition against Plaintiff Jamie Pike (“Pike”) finding a question of material fact regarding Pike’s uninsured vehicle being involved in the accident. However, the Court upheld the trial court’s order granting summary disposition against Plaintiff Synergy Spine and Orthopedic Surgery Center (“Synergy”) regarding its independent cause of action against Defendant Farm Bureau Mutual Insurance Company (“Farm Bureau”). The Court of Appeals reversed the grant of summary disposition against Pike because Pike’s vehicle was not physically involved in the accident and it did not move during the accident. The Court upheld the order granting summary disposition against Synergy because Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 196; 895 NW2d 49 (2017), barred Synergy from bringing forward an independent action.
Pike was having car problems and she called her friend Jeffery Coates (“Coates”) to examine her vehicle. Coates recommended that they drive the vehicle to another friend’s house for further inspection. Coates drove Pike’s vehicle and Pike drove Coates’ vehicle. Pike did not have no-fault insurance coverage on her vehicle. While stopped at a red light, Pike’s vehicle, driven by Coates, stalled out. Coates’ vehicle, driven by Pike, stayed motionless behind Pike’s stalled out vehicle and was rear-ended by another vehicle. Pike was injured in the collision and sought first-party PIP benefits. Pike’s claim went to the Michigan Assigned Claims Plan, which assigned her claim to Farm Bureau. Farm Bureau refused to pay Pike’s benefits and Pike brought this action seeking first-party PIP benefits. Synergy had provided medical services to Pike for her injuries and it brought an action against Farm Bureau as well. Farm Bureau moved for summary disposition and the trial court granted its motion because it found that Pike’s uninsured vehicle was involved in the collision.
Disqualification For Pike Under MCL 500.3113
The Court of Appeals found that Pike’s uninsured motor vehicle was not involved in the accident and Pike was not disqualified under MCL 500.3113. The Court explained that the owner of an uninsured motor vehicle is not entitled to personal protection insurance benefits for bodily injury resulting from an accident involving that vehicle. The Court then cited to Turner v Auto Club Ins Ass’n, 448 Mich 22, 39; 528 NW2d 681 (1995), which reasoned that “the motor vehicle, being operated or used as a motor vehicle, must actively, as opposed to passively, contribute to the accident.” The Court of Appeals first noted that Pike’s stalled vehicle was not an active contributor to the accident because it was stalled and not moving. The stalled vehicle did not actively cause Pike to get rear-ended. The stalled car did not make the striking vehicle go forward or move in anyway. Next, the Court noted that while physical contact with another vehicle is not dispositive, it is an important factor to consider. Here, Coates’ vehicle never contacted Pike’s vehicle. Thus, the Court found that Pike’s motor vehicle was not involved because it was passive, and it did not physically contact Coates’ motor vehicle.
“[A] vehicle stopped at an intersection, at least one that is not physically contacted, does not have a sufficient causal connection to be considered an active cause of the accident. . . .What matters is whether the vehicle was an active rather than passive contribution to the accident. The stalled vehicle did not actively cause Burkhart to rear-end the vehicle driven by Pike. . . . As noted, Pike’s vehicle was not physically contacted in the collision. Physical contact is not necessary, Turner, 448 Mich at 39, but that does not mean it is wholly irrelevant to determining whether the vehicle was involved in the accident.”
Application of Covenant to Synergy
The Court held that Covenant barred Synergy from bringing its independent claim. Covenant barred medical providers from brining independent claims against no-fault providers. The case applied retroactively to cases pending on appeal. Because this was decided after the trial court made its ruling, but before the final appeal Covenant applied. Citing to Bronson Healthcare Group, Inc v Mich Assigned Claims Plan, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 336088); slip op at 2-3, the Court explained that failure to raise the issue below did not preclude Farm Bureau from raising the issue on appeal because Farm Bureau did not know it could raise the issue at the time of the trial. Thus, the Court barred Synergy from bringing its independent claim.
“Further, the Covenant holding applies retroactively to cases that were pending on direct appeal at the time Covenant was decided, id. at 2, as is the case here. Therefore, defendant is entitled to summary disposition of Synergy’s complaint because Synergy does not have an independent cause of action against defendant under the no-fault act.”
Thus, the Court of Appeals reversed the trial court in part regarding Pike but upheld the trial court regarding Synergy.
Concurrence and Dissent by Judge Tukel
Judge Tukel agreed with the majority’s decision regarding Synergy; however, he disagreed with the majority’s decision regarding Pike. Judge Tukel agreed with the majority that the factor to consider for being “involved” was whether the vehicle was active or passive. Judge Tukel disagreed with the majority’s opinion that Pike’s vehicle was passive in this case. Judge Tukel explained that while a non-moving vehicle is less likely to be active, that alone is not dispositive. Here, Pike’s vehicle was being driven on a public roadway and being used as a motor vehicle. Further Pike’s vehicle had an “active influence” on the other vehicles involved in the accident because it stalled out and would not go forward. Judge Tukel found that the active influence made the vehicle involved in the accident for purposes of the No-Fault Act. Thus, Judge Tukel would have upheld the trial court’s grant of summary disposition.
