Michigan Court of Appeals; Docket #236745; Unpublished
Judges Talbot, Sawyer and O’Connell; unanimous; per curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [3105(1)]
Entitlement to PIP Benefits: Transportational Function Requirement [3105(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed a jury verdict in favor of plaintiff on the claim that the death of plaintiff’s decedent arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, as required by section 3105(1), when plaintiff’s decedent had an epileptic seizure while driving his vehicle. As a result, the vehicle crashed into a tree, causing the decedent’s head to be pressed against the passenger door. As a result of the position of the decedent’s head, he died from “positional asphyxia,” as confirmed by autopsy. The Court of Appeals held that the trial court correctly submitted the issue to the jury and properly denied defendant’s motion for directed verdict and JNOV. Moreover, the Court of Appeals ruled that the trial court’s special instruction regarding the issue of “arising out of” correctly stated the law. The special instruction given by the trial court read as follows:
“In order to find that the death of Plaintiff’s decedent arose out of his use of a motor vehicle as a motor vehicle, you must find that the causal connection between the decedent’s injury and his use of a motor vehicle as a motor vehicle was more that [sic, than] incidental, fortuitous, or ‘but for.’ Involvement of the vehicle in decedent’s injury should be directly related to its character as a motor vehicle. In other words, you must determine if the decedent’s death was closely related to the transportational function of a motor vehicle.”
The Court of Appeals also affirmed the trial court’s decision to not add a last sentence to this instruction, which had been requested by the defendant. The last sentence read: “If you find that the decedent’s injury could just as well have occurred elsewhere there is no recovery.” With regard to this sentence, the Court of Appeals held:
“The last sentence . . . was not an accurate statement of the law. . . . Defendant’s instruction embodies the test set out by Denning v Farm Bureau [Item No. 690]. This test does not apply when the vehicle itself is the proximate cause of the injury, as here. Therefore, the last sentence of defendant’s requested instruction was not an accurate statement of the law in this case, and the trial court did not abuse its discretion in failing to give that part of the special instruction to the jury.”
The Court of Appeals also affirmed the trial court’s decision to award attorney fees on the basis that defendant’s denial of benefits was unreasonable. In this regard, the Court of Appeals agreed with the trial court’s assessment that:
“‘Defendant always ignored the fact that Mr. Brzak was involved in a motor vehicle, that he was using a motor vehicle as a motor vehicle when this accident occurred,’ and thus found no need to construe the statute. The injury arose out of the use of a motor vehicle as a motor vehicle, and the simple fact that Brzak could have also died in his sleep was not relevant to the facts at hand. Defendant’s insistence that there is no recovery because the death could have occurred elsewhere is not an accurate application of law. . . . The autopsy listed positional asphyxia as the cause of death, and only defendant’s hired experts refuted the likelihood of the truth of that diagnosis.”
