Michigan Court of Appeals; Docket #288615; Published
Judges Talbot, O’Connell, and Davis; unanimous
Official Michigan Reporter Citation: 288 Mich. App. 1, Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Uninsured motorist coverage: Physical Contact Requirement
CASE SUMMARY:
In this unanimous published opinion by Judge O’Connell, the Court of Appeals affirmed the trial court Order denying an insurer’s motion for summary disposition, finding that a plaintiff, who was injured when her vehicle hit a ladder that was in the middle of a limited access highway, presented sufficient evidence for a reasonable trier of fact to conclude that the ladder fell off an unidentified vehicle and which the trier of fact could further conclude, was an uninsured vehicle under the defendant’s uninsured motorist provision.
The plaintiff in this case was injured while driving a vehicle she leased through her husband’s family’s business. The business had purchased a commercial automobile policy from defendant that contained an uninsured motorist (UIM) provision. The accident occurred on a limited access highway when the plaintiff failed to avoid hitting a ladder that was laying in the lane in which she was traveling. Defendant denied the plaintiff’s claim for uninsured motorist benefits, arguing that she was not included under a separate endorsement for the UIM coverage and, even if she was, the accident did not involve an uninsured vehicle, it involved a ladder.
In affirming, the Court of Appeals first found that although the trial court improperly found, as a question of law, that plaintiff was entitled to UIM coverage, it did find there were questions of fact regarding whether plaintiff was entitled to UIM coverage. The UIM endorsement provided for UIM coverage for “those ‘autos’ you own.” Defendant argued that because the vehicle was owned by the business and leased to plaintiff’s husband, the UIM endorsement only covered the business, not plaintiff. Plaintiff countered that she should qualify as an insured under the endorsement because she was driving the vehicle under a lease-back agreement, there was a policy change request to add her as an additional insured, and she was listed on a certificate of insurance as a named insured. Moreover, plaintiff argued that since defendant had already paid her some benefits, it must consider her an insured under the policy. Based on these assertions, the Court of Appeals determined that a question of fact existed regarding the interpretation of the policy, and remanded that issue for further proceedings. The court then turned to the issue of whether the plaintiff was entitled to UIM benefits for an accident that occurred when she hit the ladder. The policy provided that an uninsured vehicle is any vehicle, “[t]hat is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit, or cause an object to hit, an ‘insured,’ a covered ‘auto’ or a vehicle an ‘insured’ is ‘occupying.’ If there is no direct physical contact with the hit-and-run vehicle, the facts of the ‘accident’ must be corroborated by competent evidence, other than the testimony of any person having a claim under this or any similar insurance as the result of such ‘accident.’” Defendant argued that in order for plaintiff to be able to recover under this policy provision, there must be a physical nexus between the ladder and the unidentified hit-and-run vehicle. Defendant stated that because no one testified the ladder did, in fact, fall off a vehicle, the physical nexus requirement could not be established without speculation and speculation is insufficient to establish a genuine issue of fact. Plaintiff argued that there was no logical explanation for how the ladder appeared in the roadway besides that it had fallen off a vehicle. She noted that this was a limited access highway, the accident occurred on an overpass where the highway crossed over another highway and there was no overpass over the highway on which she was traveling. She also noted that the area was not under construction, to explain the presence of a ladder. In finding that the plaintiff presented a question of fact for the jury, the Court of Appeals noted that this case was very similar to the case Berry v State Farm Mut Automobile Ins Co, 219 Mich App 340; 556 NW2d 207 (1996), a case involving an accident that occurred when the plaintiff’s vehicle ran over a piece of metal that had apparently fallen off a trailer some 10 to 15 minutes earlier. In Berry, the Court of Appeals held, “the presence of scrap metal in the truck trailer ‘at a time and location that was temporally and spatially proximate to plaintiff’s striking a piece of metal in the road’ was sufficient to establish ‘a substantial physical nexus between the hit-and-run vehicle and the object struck by plaintiff. . . .’” Based on the Berry decision, the court in this case concluded that the speculation necessary to determine how the ladder came to be in the middle of the highway was proper. In this regard, the court stated:
“Although some degree of speculation is necessary to determine exactly how this ladder arrived at its location, we conclude that, based on the unique set of facts in this case, such speculation is not impermissible. In fact, we believe that such speculation does not surpass the level of speculation permitted by the Berry Court when finding that a reasonable juror could conclude that the metal found in the roadway had fallen from a truck that a witness saw in the vicinity of the accident approximately 15 minutes before the accident.”
