Michigan Court of Appeals; Docket # 325601; Unpublished
Judges Talbot, Hoekstra, and Shapiro; 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)]
Exception for Loading/Unloading [§3106(1)(b)]
Calculation of Survivor's Loss Benefits and Maximums [§3108(1)]
Reasonable Proof Requirement [§3142(2)]
Requirement That Benefits Were Overdue [§3148(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff's claim for survivor's loss benefits under MCL 500.3108, the Court of Appeals issued several rulings:
1) the jury properly found that defendant Farm Bureau was liable for survivor's loss benefits, because the decedent's injuries fell under MCL 500.3105 or one of the exceptions to the parked vehicle exclusion in MCL 500.3106;
2) Farm Bureau was not entitled to a new trial because, contrary to its argument, the jury instruction was not erroneous;
3) there was sufficient evidence to support the jury's award of replacement services from the date of decedent's death to the date of trial;
4) plaintiff was properly awarded attorney fees pursuant to MCL 500.3148, because Farm Bureau unreasonably denied benefits;
5) the penalty interest award under MCL 500.3142 must be vacated as to replacement services, because the amount was miscalculated; and
6) the penalty interest award for lost income benefits must be reversed due to a calculation error and, on remand, the trial court must award penalty interest from the date that plaintiff submitted her interrogatory answers to defendant for her loss of income.
George Winegar died as a result of injuries he suffered, including cardiac arrest, after being tossed over the side of his pickup truck while unloading a trash can from the truck's bed. Winegar's wife submitted a claim to defendant Farm Bureau for no-fault survivor's loss benefits. Farm Bureau denied the claim, asserting that Winegar's death was not the result of him using the pickup truck as a motor vehicle. Winegar's wife, as the personal representative of his estate, brought this action seeking survivor's loss benefits. A jury found in her favor, awarding her more than $59,000 for the loss of tangible items of economic value and more than $5,700 in replacement services. The jury also found that no-fault benefits were overdue and awarded her more than $7,800 in penalty interest. The trial court also granted plaintiff's motion for attorney fees, finding that Farm Bureau's denial of benefits was unreasonable.
On appeal, the Court of Appeals affirmed the trial court's judgment in all respects, except for the amount of penalty interest, which it remanded for recalculation.
Farm Bureau presented several arguments on appeal, including that the jury could not have found that Winegar's injuries came within §3105 or one of the exceptions to the parked vehicle exclusion in §3106. In particular, Farm Bureau asserted: 1) there was no evidence that Winegar's death was caused by his fall; 2) the truck was not being used as a motor vehicle; and 3) Winegar's cardiac arrest was unrelated to the unloading process.
Regarding Farm Bureau's claim there was no evidence that Winegar's death was caused by his fall, the Court of Appeals noted an eyewitness testified that Winegar had been "catapulted" from the truck and that the doctor who treated Winegar testified the cause of the cardiac arrest was trauma from the fall. In this regard, the Court said that while Farm Bureau disputed this evidence, it was for the jury to either accept or refute it.
As for the argument that the truck was not being used as a motor vehicle, the Court of Appeals pointed out it was undisputed that Winegar loaded the truck with trash cans in order to transport them, drove the truck to another location, parked the truck and began unloading the trash cans. Therefore, Winegar was "actively removing" the trash cans from his truck and was in "direct contact" with the truck when the accident occurred, the Court stated.
Regarding the claim that Winegar's cardiac arrest was unrelated to the truck's unloading process, the Court of Appeals said this argument failed because: 1) the jury did not reject the testimony of eyewitnesses and a doctor regarding the events and the cause of death, and 2) when cardiac arrest occurs due to the exertion of unloading a vehicle and there is proof the cardiac arrest is linked to the exertion of unloading, a jury may properly conclude that it was an "accidental bodily injury."
The Court of Appeals further rejected Farm Bureau's argument that a special jury instruction should have been given, finding the standard jury instruction was sufficient. And if there was any error, it did not result in a verdict that was "inconsistent with substantial justice," the Court said.
The Court continued by denying Farm Bureau's claim that its motion for JNOV on the issue of replacement services should have been granted. The Court pointed to testimony from Winegar's daughter, who said that Farm Bureau indicated to her that, assuming coverage was available, replacement services would be reimbursable. Based on these communications, which were given to the jury, the Court concluded there was sufficient evidence to support the jury's award of replacement services.
Regarding the award of penalty interest under §3142, the Court of Appeals found the jury properly concluded that certain benefits were overdue, but miscalculated interest from the date of death and not the date of the interrogatory answers, which was when reasonable proof of the amount of loss was provided. Therefore, the Court vacated the penalty interest award as to replacement services and remanded the matter, ordering the trial court to recalculate penalty interest accordingly.
As for attorney fees under §3148, the Court held that fees were proper because Farm Bureau unreasonably denied benefits. The Court concluded:
"Defendant argued to the jury that the fact that George was unloading his parked vehicle was simply a coincidence and was not a cause of his death. However, defendant's own expert testified that the cardiac arrest occurred because of the exertion of unloading. Regardless of which version of events was accurate, i.e., plaintiff's theory that George died because the weight of the trash can caused him to fall or defendant's theory that George died because he had a cardiac arrest caused by exertion from moving the trash can, it is clear that the only two versions for which there was any evidence each mandated coverage."
