Michigan Court of Appeals; Docket #359474; Unpublished
Judges Rick, Kelly, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Kenneth Kovach’s action for No-Fault PIP benefits against Defendant Citizens Insurance Company (“Citizens”). Applying McPherson v McPherson, 493 Mich 294 (2013) to the case at bar, the Court of Appeals held that Kovach was not entitled to PIP benefits for the treatment of a subdural hematoma he developed after a fall. The fall was caused by vertigo Kovach developed after suffering a concussion in a motor vehicle accident, but under McPherson, the Court held that the relationship between the hematoma and the motor vehicle accident was too attenuated for Kovach to be entitled to PIP benefits under MCL 500.3105(1).
Kenneth Kovach sustained a concussion in a motor vehicle accident, after which he began experiencing vertigo. His vertigo caused him to fall on three separate occasions, the last of which saw him hit his head against a wall and suffer a subdural hematoma. Kovach had to undergo surgery to evacuate the hematoma, after which he sought PIP benefits related to the procedure from Citizens. Citizens moved for summary disposition, arguing that, under McPherson, Kovach’s hematoma was caused by the fall, not by the motor vehicle accident for purposes of MCL 500.3105(1). The trial court agreed and granted Citizens’ motion.
The Court of Appeals affirmed the trial court’s summary disposition order, finding McPherson controlling and observing that, “In both McPherson and this case a second incident caused the relevant injury.”
“In both McPherson and this case, a second incident caused the relevant injury. Here, plaintiff did not suffer a subdural hematoma in the motor vehicle accident. Rather, he developed the hematoma after falling and hitting his head, which was caused by his vertigo, which was caused by his use of a motor vehicle in February 2020. In other words, the facts alleged by plaintiff only support a finding that the ‘first injury directly caused the second accident, which in turn caused the second injury.’ McPherson, 493 Mich at 298-299.
Under McPherson, there is not a sufficient connection between the subdural hematoma and the motor vehicle accident. Even if plaintiff’s fall was caused by vertigo caused by the motor vehicle accident, the accident would not be more than an incidental, fortuitous, or “but for” cause of his subdural hematoma. Therefore, plaintiff’s subdural hematoma did not ‘arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle’ pursuant to MCL 500.3105(1).
Plaintiff attempts to distinguish McPherson by arguing that his subdural hematoma is a natural and direct consequence of the motor vehicle accident and that there was no intervening event that led to his injury. Plaintiff relies on the report of a medical expert that was submitted for the first time with plaintiff’s motion for reconsideration. The expert, Francisco Diaz, M.D., opined that (1) plaintiff’s vertigo resulted from the motor vehicle accident, (2) that vertigo caused plaintiff to fall and suffer a subdural hematoma, and (3) that the motor vehicle accident was therefore the ‘originating event from where the cascade of medical complications above described arose from.’ Dr. Diaz opined, ‘[i]n other words, if it [were not] for the collision [plaintiff] would not have sustained the complications that led eventually to neurological surgery.’ We are, legally speaking, not convinced. The expert’s report does not distinguish this case from McPherson. Rather, Dr. Diaz’s report confirms the attenuated connection between the motor vehicle accident and plaintiff’s subdural hematoma.”