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Lamb v Progressive Marathon Ins Co (COA - UNP 1/21/2021; RB #4209)

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Michigan Court of Appeals; Docket # 351304; Unpublished 
Judges Jansen, Servitto, and Riordan; 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:
Evidentiary Issues


SUMMARY:
In this unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s order granting defendant’s motion for reconsideration in which the trial court overturned its denial of defendant’s motion for summary disposition regarding plaintiff’s entitlement to no-fault benefits.  The Court of Appeals affirmed the trial court on the basis that plaintiff failed to present any evidence in response to defendant’s motion to establish that her injuries were caused by the incident in question and that the trial court was within its discretion in refusing to consider the physician’s affidavit plaintiff submitted in response to defendant’s motion for reconsideration.

This case arose from an incident involving a pedestrian and a vehicle. Plaintiff, a pedestrian, entered a crosswalk after the crossing light came on. As plaintiff entered the crosswalk, the driver, who had been stopped at a red light, began to turn right. Plaintiff admitted that she was not hit by the vehicle, but that she ended up with her hands on the hood of the vehicle as it came to a stop. Plaintiff denied injury at the scene but was later taken to the hospital by her boyfriend after complaining of a headache. Thereafter, plaintiff filed a lawsuit and defendant, the insurer of the driver involved, argued that plaintiff failed to establish causation between her claimed injuries and the incident in question. The trial court initially denied defendant’s motion but granted the motion after defendant moved for reconsideration.

On appeal, plaintiff argued that the trial court should not have granted defendant’s motion because there was a genuine issue of material fact regarding whether plaintiff’s injuries were caused by the defendant’s insured. Plaintiff relied on her deposition testimony, medical records, and opinion of her treating physician in support of her argument. However, the Court disagreed, stating that “[c]overage under the no-fault act is only available ‘where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or but for.’” The Court held that plaintiff had not presented evidence to establish that her injuries were caused by the incident in question, and that while her medical records did establish various injuries, there was no connection between those injuries and the incident in question other than “plaintiff’s own narrative of what occurred.”

Regarding the trial court’s decision to grant defendant’s motion for reconsideration, the Court of Appeals noted that plaintiff had submitted a physician’s affidavit in response to defendant’s motion for reconsideration, but this affidavit was signed after the trial court ruled on the parties’ motion for summary disposition and was not part of plaintiff’s summary disposition briefing.  In upholding the trial court’s decision to not consider the affidavit in ruling on the motion for reconsideration, the Court of Appeals noted that “[a] trial court has discretion on a motion for reconsideration to decline to consider new legal theories or evidence that could have been presented when the motion was initially decided.” Thus, the Court of Appeals found that because plaintiff failed to establish the required casual nexus between her injuries and the incident in question, the trial court did not abuse its discretion by granting defendant’s motion for reconsideration.

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