Michigan Court of Appeals; Docket No. 185529; Unpublished
Judges Fitzgerald, O'Connell, and T. L. Ludington; 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)]
Aggravation of Preexisting Conditions [§3105(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In a per curiam unpublished decision, the Court of Appeals held in this case for no-fault first party benefits, that where the issue is whether the complained of injury arose out of an automobile accident, the jury does not have to be instructed that benefits are payable, if the accident is a cause (as opposed to the only cause) of the injuries. The court also found that offer of judgment sanctions were properly denied by the trial judge, where the case presented unsettled issues of law and unique factual circumstances.
The plaintiff had a history of pre-existing problems with his back. He had back surgery in 1968, and from that point forward, his back troubled him on an intermittent basis. From 1975 through 1990, plaintiff’s employment required lifting and pulling, and in 1989, surgery was performed on plaintiffs back to address a herniated disc. Six months later, on September 19, 1989, plaintiff was involved in a minor broad-side collision, after which the plaintiff went to a hospital emergency room complaining of back pain. A year later, plaintiff’s physician restricted plaintiff’s employment for a one month period. The defendant insurance company had plaintiff examined by two physicians and concluded, on March 21, 1990, that plaintiffs back had healed to its pre-accident condition, and that plaintiff was in no need for further medical treatment Over one year later, plaintiff experienced severe pain in his lower back and right leg, which ultimately resulted in surgery being performed to address re-herniation of the disc previously operated upon. Plaintiff claimed that the injuries sustained in the accident necessitated the second herniated disc surgery. Defendant denied the claim on the grounds that it was not related to the accident, but instead, was an extension of a pre-existing condition.
In a suit for first party coverage, the jury found for defendant, concluding that plaintiff’s injuries did not arise out of the accident. Plaintiff appealed based upon the instructions given by the trial court to the jury.
Plaintiff argued that the trial court erred by refusing to instruct the jury that it was sufficient for plaintiff to establish that the accident was a cause of the injury in order to recover benefits and that the court's refusal to do so allowed the jury to infer that the accident had to be a sole cause of the injury in order for plaintiff to recover. Specifically, the trial court gave the following instruction:
"When I say the term, 'arising out of,' I mean that the accident and the injury must be connected in a manner that is something more than merely incidental or fortuitous. Phrasing it a bit differently, 'arising out of is not something so remote or attenuate as to preclude a finding that it arose out of the use of a motor vehicle. The question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the vehicle. You are instructed that the defendant takes the plaintiff as it finds him. If you find that the plaintiff was unusually susceptible to injury, that fact will not relieve the defendant from responsibility for payment of benefits due to plaintiff arising out of the accident of September 19, 1989."
Plaintiff argued that the trial court should have instructed the jury that liability could rest upon a finding that the accident was a cause of plaintiff s injuries, without the need to find that it was the only cause. Plaintiff relief upon third-party liability cases where the courts have held that the jury is to be instructed that the defendant's negligence must be a proximate cause, not the proximate cause of plaintiff s injuries. However the Court of Appeals rejected this analysis, in that first party cases such as this do not require a finding of proximate cause.
The Court of Appeals noted that the comments to the no-fault first party standard jury instructions, SJI 2d 35.02, state that:
'"Arising out of means that there must be a causal connection between the injury and the accident 'which connection must be more than incidental, fortuitous or but for."
Likewise, the other language as set forth in the court's jury instruction given in this case were taken directly from the cases of Kochoian v Allstate Insurance Company, 168 Mich App 1; 423 NW2d 913 (1988) (Item No. 1128) and Shinabarger v Citizens Insurance Company, 90 Mich App 307; 282 NW2d 301 (1979) (Item No. 204). The Court of Appeals stated that the danger in giving the instruction which plaintiff requested is that the jury, on the facts of this particular case, could improperly impose liability on a finding that the accident was a cause of the plaintiffs injury, but without the requisite finding that a causal connection between the two was more than fortuitous, incidental or but for, as required by law.
The plaintiff also argued that defense counsel deprived plaintiff of a fair trial by misrepresentation of the law regarding the meaning of "arising out of" during closing argument. The Court of Appeals, however, found that the court's instruction to the jury to follow the law as instructed by the court was sufficient to cure defense counsel's misstatement of law in his closing arguments.
The trial judge and counsel apparently interviewed the jurors after the verdict was rendered in the case, and were informed that had plaintiffs proposed jury instruction been read to them, they would have found defendant liable. However, the Court of Appeals held that once a jury is polled and discharged, its verdict may be challenged only regarding matters of form, such as clerical errors, or extraneous errors, such as undue influence from outside forces, and challenges may be based only on statements given under oath, such as oral testimony or affidavit. Here, the informal "exit poll" was premised on unsworn statements and, therefore, insufficient to overturn the verdict.
Plaintiff also argued that the trial court erred by denying its motion for a new trial, arguing that the verdict was against the great weight of the evidence. However, the Court of Appeals found that the evidence presented in this case was sufficient to support the verdict, and therefore, the trial court did not abuse its discretion in denying the motion. Finally, defendant cross-appealed, arguing that the trial court erred in denying its motion to impose offer of judgment sanctions. There was no dispute that the no cause verdict was less favorable to plaintiff than the average offer of the offer of judgment submitted between the parties. Nonetheless, the Court of Appeals noted that under the court rule, MCR 2.40S the court may deny sanctions in the interest of justice. The trial court declined to award sanctions here, because the case presented an unsettled issue of law and unique factual circumstances. The Court of Appeals held that the trial court did not abuse its discretion in denying sanctions under the circumstances.
