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Progressive Michigan Ins Co v Elston; (COA-UNP, 2/17/2011; RB #3159)


Michigan Court of Appeals; Docket #294553; Unpublished 
Judges Jansen, Owens, and Shapiro; unanimous: per curiam  
Official Michigan Reporter Citation:  Not applicable, Link to Opinion 

Definition of Motor Vehicle (General) [§3101(2)(e)] 
Specific Exclusions from Motor Vehicle Definition [§3101(2)(e)] 
Definition of Motor Vehicle Accident [§3101(2)(f)] 
Entitlement to PIP Benefits: Arising out of / Causation Requirement [§3105(1)] 
Entitlement to PIP Benefits: Transportational Function Requirement [§3105(1)] 
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)] 

Not Applicable

In this unanimous unpublished per curiam opinion addressing whether a motorcycle accident arose out of the use of a motor vehicle, the Court of Appeals reversed summary disposition which had been granted in favor of Progressive Insurance Company and held that there was a genuine issue of fact regarding the issue of whether defendant Elston’s motorcycle had been provoked into an “evasive maneuver” by a motor vehicle entering his lane and therefore resulting in a crash injuring the motorcyclist.

Defendant Elston claimed injuries as a consequence of the crash that occurred while he was operating his motorcycle. Elston claimed that another motor vehicle on the roadway traveling in his direction was taking a turn “very widely” and therefore came into Elston’s lane of travel causing to him to then strike a curb and crash.

The issue in this case was whether or not the injury arose out of the use of a motor vehicle “as a motor vehicle” under §3105 of the no-fault statute and whether the injury was closely related to the transportational function of a motor vehicle.

Under §3101(e) a motorcycle is not a motor vehicle. A motorcyclist is entitled to no-fault benefits under §3105(1) only if the injury resulted from an accident involving a “motor vehicle.”  

In this case, there was no dispute that another motor vehicle was present on the road at the time of Elston’s accident. The only issue was whether evidence would support a finding that the injuries arose out of the use of that motor vehicle as a motor vehicle. Citing Bromley v Citizens Ins Co, 113 Mich App 131 (1982), the Court stated that there is sufficient connection to support a finding that a motorcyclist’s injuries arose out of the use of a motor vehicle as a motor vehicle when the motor vehicle forces the motorcyclist off the road. In forcing a motorcyclist off the road, the motor vehicle forces the motorcyclist to take evasive action to avoid a collision, thereby causing the motorcyclist to lose control and crash. In such a case, the use of a motor vehicle as a motor vehicle is a cause of the injuries within the meaning of §3105(1).

In this case, based upon Elston’s testimony and the affidavit of another witness, there was sufficient evidence to create a genuine issue of fact regarding whether the injuries arose out of the use of a motor vehicle. Therefore, summary disposition was reversed and the matter remanded.

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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