Michigan Court of Appeals; Docket #294705; Unpublished
Judges Murphy, Whitbeck, and Murray; unanimous: per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses: Causation Requirement [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam unpublished opinion, the Court of Appeals reversed summary disposition which had been granted in favor of defendant Auto-Owners in a case where the Court of Appeals held there was a disputed genuine issue of material fact regarding whether plaintiff’s complaint of “breathlessness” was caused by his preexistent lung disease or whether it was caused by injury to his phrenic nerve.
Favazza was injured in 1998 when his vehicle struck a cement barrier at high speed. He reported difficulty breathing in the emergency room and following the accident, claimed that his symptoms of “severe breathlessness” increased. Prior to the accident, he suffered from chronic obstructive pulmonary disease and emphysema from years of smoking. The parties did not dispute that Favazza suffered from these preexisting conditions, but also agreed that he had sustained injury to his phrenic nerve as a consequence of the accident. The Court noted that there was conflicting medical evidence from a number of physicians, including a physician at the Mayo Clinic who concluded that a phrenic nerve injury in the accident had resulted in a loss of movement of the diaphragm and that, in combination with the preexisting chronic obstructive pulmonary disease, caused Favazza’s difficulty breathing. A neurologist also asserted that the shortness of breath symptoms stemmed from a phrenic nerve injury caused by the automobile accident. Other medical testimony, including Favazza’s own treaters, testified that his breathlessness symptoms were caused by his chronic obstructive pulmonary disease and not the auto accident.
In reversing the trial court grant of summary disposition in favor of Auto-Owners, the Court of Appeals noted that the motor vehicle accident need only be one of the causes of the injury. The term “arising out of” contained in MCL 500.3105 “does not mean proximate cause in the strict legal sense, and does not require a finding that the injury was directly and proximately caused by the use of the vehicle. Scott v State Farm Mut Auto Ins Co, 278 Mich App 578 … (2008).” (The Court further noted that the Supreme Court grappled with the statement in Scott that “‘arising out of’ means almost any causal connection or relationship will do.” In this case, the Court of Appeals felt that it did not need to address this issue because it did not rely on that particular statement from Scott for any part of its decision.)
In reversing the trial court, the Court of Appeals held that the expert testimony evidenced a genuine issue of material fact regarding whether the complaint of breathlessness “was caused by the lung disease, by his non-functioning diaphragm related to nerves damaged in the 1998 accident, or by an interaction of both.” For this reason, summary disposition as to defendant was reversed. However, the Court felt for the same reasons summary disposition in favor of plaintiff was unwarranted. “[I]t is for the trier of fact to resolve these issues based on the conflicting evidence.”
