Michigan Court of Appeals; Docket #316740; Unpublished
Judges Owens, Jansen, and O’Connell; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Order
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of/Causation Requirement [§3105(1)]
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]
Exception for Motorcycle Injuries [§3114(5)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion concerning a motorcycle accident in which the motor vehicle allegedly involved had no contact with the motorcycle, the Court of Appeals held the trial court properly granted summary disposition for defendant insurer because plaintiff, a passenger on the motorcycle, did not present sufficient evidence to establish the motor vehicle was “involved” in the accident within the meaning of MCL 500.3105(1).
Plaintiff was riding a motorcycle driven by her husband when it went off the shoulder of a highway. Plaintiff claimed her husband lost control when he swerved to avoid an oncoming pickup truck. The only evidence of the truck’s involvement in the accident was a verbal statement from the truck passenger, David Netz, that was given to the responding police officer, who wrote in his report: “I asked Netz what he saw and he said he first noticed the motorcycle heading towards him in his lane.” Netz later testified that he did not recall telling the officer that the motorcycle was in the truck’s lane and that he never saw the motorcycle in the truck’s lane. Plaintiff filed this action seeking PIP benefits from defendant ACIA. ACIA claimed there was no evidence the truck was involved in the accident. The trial court denied ACIA’s summary disposition motion. ACIA moved for reconsideration, arguing that Netz’s statements were inadmissible and that, without those statements, there was no evidence of the truck’s involvement. The trial court held that Netz’s statement was inadmissible, there was no admissible evidence to establish the truck’s involvement, and summary disposition for ACIA was appropriate.
Affirming the trial court’s ruling, the Court of Appeals looked to the interpretation of “involved” set forth in Detroit Medical Center v Progressive Ins Co, 302 Mich App 392 (2013). Similar to the present case, the motorcyclist in Detroit Medical Center had swerved to avoid hitting an oncoming car. Relying on the reasoning in Detroit Medical Center, the Court of Appeals said:
“[W]here there is no actual collision between the motorcycle and the motor vehicle, we cannot say that the motor vehicle was involved in the accident merely because of the motorcyclist’s subjective, erroneous perceived need to react to the motor vehicle. Rather, for the motor vehicle to be considered involved in the accident, the operation of the motor vehicle must have created an actual need for the motorcyclist to take evasive action. That is, there must be some activity by the motor vehicle that contributes to the happening of the accident beyond its mere presence.’”
Regarding plaintiff’s argument that her husband “took evasive action” in response to what he thought was an imminent collision, the Court of Appeals noted that neither plaintiff nor her husband remembered how the accident happened, and that the pickup driver did not see the events preceding the crash. According to the court, none of the alleged statements made by the pickup truck passenger (Netz) to the police officer were admissible under MRE 803(1), MRE 803(2), or MRE 803(5).
The Court of Appeals concluded:
“Therefore, plaintiff has not shown that the accident was caused by an ‘actual, objective need’ for Redford to take evasive action, there was ‘no causal connection between [plaintiff’s] injuries and the use of a motor vehicle as a motor vehicle sufficient to trigger entitlement to no-fault benefits under MCL 500.3105(1).’ … Accordingly, summary disposition in favor of ACIA was warranted because there remained no genuine issue of material fact.”
