Michigan Court of Appeals; Docket No. 300961; Unpublished
Judges Hoekstra, K.F. Kelly, and Beckering; 2-1 Judge Beckering dissenting; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Dissent
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out Of/Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion, the Michigan Court of Appeals affirmed the trial court's Order granting summary disposition in favor of Citizens on the issue of whether the plaintiff was not entitled to no-fault benefits because his injury did not arise out of the ownership, operation, maintenance, or use of the motor vehicle as a motor vehicle.
The plaintiff in this case was injured when he was hit by a snowmobile while walking his dog along the side of the road. Plaintiff alleged that the collision occurred because the snowmobile operator was blinded by the headlights of an oncoming motor vehicle. The plaintiff ultimately sought no-fault benefits on the basis that, for purposes of MCL 500.3105(1), his injuries arose from the use of a motor vehicle, because the snowmobile driver struck him after being blinded by the motor vehicle's headlights.
In affirming the trial court's ruling that the plaintiff was not entitled to no-fault benefits, the majority opinion reasoned that under the applicable case law, the plaintiff could not demonstrate that the motor vehicle's contribution to the his injuries were anything more than incidental, fortuitous, or a "but for" cause of the plaintiff's injuries.
The majority's analysis began with referencing case law that stands for the proposition that "arising out of" causation under MCL 500.3105(1) requires that the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for" and that the connection of a motor vehicle to the injury should be directly related to its character as a motor vehicle. In this regard, the majority stated:
"Our Supreme Court has explained that no-fault coverage is only available pursuant to MCL 500.3105(1) "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.'" Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986). The connection of a motor vehicle to the injury should be "directly related to its character as a motor vehicle." Id. (quotation and citation omitted). While the "automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile," and the causal connection must be "more than incidental, fortuitous or but for." Id. at 650, quoting Kangas v Aetna Cas & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975). But for cause is the cause in fact of an injury, meaning that 'but for' a particular action, the plaintiff's injury would not have occurred. Taylor v Kent Radiology, 286 Mich App 490, 511; 780 NW2d 900 (2009). Accordingly, the first consideration when determining whether the requirement set forth in MCL 500.3105(1) is satisfied is the "relationship between the injury and the vehicular use of a motor vehicle." Id. at 659-660. "Without a relation that is more than 'but for,' incidental, or fortuitous, there can be no recovery of PIP benefits." Id. at 660."
The court then applied this standard to the facts of this case and reasoned that there was no genuine issue of material fact that the snowmobile driver's blindness was not anything more than the cause of plaintiff's injuries. The court further reasoned that the snowmobile collision occurred because neither the plaintiff nor the snowmobile driver took timely evasive action to avoid the collision and, moreover, the blinding bright lights from the motor vehicle was only one of the many reasons why the snowmobile driver and/or the plaintiff failed to take evasive action to avoid the collision. In this regard, the majority stated:
". . . From these facts, which we assume are true in a motion brought pursuant to MCR 2.116(C)(8), it is clear that the snowmobile driver's blindness was the but for cause of Constantino's injuries. The question before us is whether the motor vehicle's contribution to the injury resulting from this collision was more than the cause in fact. We conclude that it was not. Based on the facts alleged in the complaint, it is apparent that the snowmobile was proceeding on a course of travel prior to the accident that would result in a collision with Constantino, and that a collision between them was inevitable unless one of them took action to avoid it. Thus, the accident ultimately occurred because neither took timely evasive action. Under these circumstances, the fact that headlights of an oncoming vehicle blinded the snowmobile driver does not establish that the relationship of the vehicle to Constantino's injury was more thanincidental, fortuitous, or a 'but for' cause because the blinding bright lights from the vehicle was only one of many reasons why the driver of the snowmobile might have failed to notice Constantino and take evasive action. The driver's failure to observe and avoid the collision could just as easily have been the result of a setting sun, momentary inattention or any other type of distraction."
The majority further concluded that the circumstances of this case were distinguishable from the case of Bromley v Citizens Ins Co of America, 113 Mich App 131 (1982), wherein the Court of Appeals held that the driver of a motorcycle was entitled to no-fault benefits when he was in an accident that was caused by him attempting to avoid a swerving motor vehicle. The court reasoned whereas the only factor leading to the accident in Bromley was the swerving of the motor vehicle, the snowmobile driver in this case did not change his course of travel as a result of the motor vehicle and could have failed to perceive the plaintiff for a number of reasons.
The court further rejected the plaintiff's reliance on McKenzie v Auto Club Ins Ass'n, 458 Mich 215 (1998), wherein the Michigan Supreme Court held that whether "an injury arises out of the use of a motor vehicle 'as a motor vehicle' under §3105 turns on whether the injury is closely related to the transportational function of automobiles." The majority concluded that McKenzie did not change the result in this case, because, even though the headlights of the motor vehicle were related to its transportational function, the plaintiff was not able to demonstrate that the injury was more than "but for," incidental or fortuitous as required by Thornton.
In her dissent, Judge Beckering disagreed with the majority's analysis that the motor vehicle was not more than a "but for," fortuitous or incidental cause of the accident. Judge Beckering provided a comprehensive analysis of the applicable case law and the facts of this case to ultimately concluded the following:
"In this case, the normal use of a motor vehicle, i.e., driving down the road with one's bright lights activated, obstructed the vision of the oncoming snowmobile driver, causing him to be unable to see and avoid hitting plaintiff. Accordingly, I would hold that plaintiff alleged sufficient facts in his complaint showing that his injury arose out of the operation or use of a motor vehicle as a motor vehicle. The trial court's order granting summary disposition for defendant under MCR 2.116(C)(8) should be reversed."
