Michigan Court of Appeals; Docket #361715; Unpublished
Judges Markey, Jansen, and Kelly; 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:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiffs Flint Region ASC, LLC and Michigan Clinic Neurosurgery, PLLC’s (“the plaintiffs”) claim for no-fault PIP benefits against Defendant Progressive Marathon Insurance Company (“Progressive”). The Court of Appeals held that the plaintiffs failed to establish that the patient at issue, Kennies Bush, required surgery as a result of a motor vehicle accident that occurred in 2017—at which time he was insured by Progressive—and not solely as a result of a motor vehicle accident that occurred in 2018—at which time he was insured by Everest National Insurance Company (“Everest”).
Kennies Bush injured his neck and back in two separate motor vehicle accidents in 2017, both of which occurred while Bush was insured by Progressive. Following the accidents, Progressive paid PIP benefits to Bush, including allowable expenses and replacement services. In December 2018, Bush was involved in another motor vehicle accident—again injuring his neck and back—although by that time, he was insured by Everest National Insurance Company. The plaintiffs ultimately performed surgery on Bush’s neck and back, after which they sought PIP benefits related to the surgery from Progressive and Everest. When neither insurer paid, the plaintiffs filed suit, and during Bush’s deposition, he testified that ‘his injuries from his 2017 accidents were completely different from his injuries from the December 12, 2018 accident, and that [a physician told him] the 2018 accident caused a nerve to press against his spine necessitating the procedures at issue.’ Based on this testimony, Progressive moved for summary disposition, arguing that Bush’s neck and back surgery was necessitated entirely by the 2018 accident, at the time of which Bush was insured by Everest. The trial court agreed and granted Progressive’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that the plaintiffs had failed to present sufficient evidence to create a question of fact as to whether Bush’s surgery was necessitated, in part, by the injuries he sustained in the 2017 accidents. The Court declined to consider Bush’s testimony about what his doctor told him regarding causation on the basis that the statement was inadmissible hearsay. The Court further determined that the plaintiffs’ argument regarding the relatedness of the surgery and the 2017 accidents was based purely on “speculation and conjecture.” The Court noted that the plaintiffs had presented no “professional determinations, records, or diagnostics to prove [their] contention that Bush’s alleged injuries were caused in part by the 2017 accidents[,]” and that their argument were based only on Bush’s testimony and billing invoices—which, by themselves were not sufficient to create a question of fact regarding causation.
“Progressive properly notes that parties cannot rely on speculation and conjecture to survive a motion for summary disposition and establish causation. See Detroit v Gen Motors Corp, 233 Mich App 132, 139; 592 NW2d 732 (1998); Skinner, 445 Mich at 164. Bush was not speculating; however, as Progressive notes, plaintiffs presented no professional determinations, records, or diagnostics to prove its contention that Bush’s alleged injuries were caused in part by the 2017 accidents. Plaintiffs relied on Bush’s testimony and billing invoices to oppose summary disposition. At oral argument, plaintiffs’ counsel conceded that Bush ‘is not a medical doctor so his analysis of whether the nerve was pinching his spine now or what necessitated the surgery is not really something that can be used to, you know, insure that Progressive no longer has coverage or to say that it’s a new injury. That’s something that we would leave for the medical doctors to discuss, our expert witnesses.’ But plaintiff offered no medical records or expert medical testimony to oppose the motion. When viewing the evidence in a light most favorable to plaintiffs and making all reasonable inferences in their favor, we cannot conclude that based on plaintiff’s testimony alone, a genuine issue of material fact exists. Therefore, summary disposition was properly granted in favor of Progressive.”
