Michigan Court of Appeals; Docket No. 181941; Unpublished
Judge Hoekstra, Sawyer, and Pickard; 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)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam unpublished Opinion, the Court of Appeals upheld a jury verdict finding that plaintiffs injuries did not arise out of the operation or use of a motor vehicle as a motor vehicle, where there was evidence that security guards threw plaintiff from a vehicle's path as it crossed a picket line, and that he may have been injured as a result of being thrown by the security guards.
After a two day jury trial, the jury found that plaintiffs injuries did not arise out of the operation or use of a motor vehicle as a motor vehicle as required under §3105(1) of the no-fault act.
In upholding the trial court's denial of a motion for judgment notwithstanding the verdict and denial of directed verdict, the Court of Appeals held that the issue of a §3105 "arising out of" is dependent upon the individual facts of each case. Section 3105(1) requires that there be some causal connection between the injury sustained and the ownership, maintenance or use of a motor vehicle. While the required causal nexus does not rise to the level of proximate causation, the causal connection between the injury and the normal use of a motor vehicle must be more than incidental, fortuitous, or "but for."
In this case, the Court of Appeals held that reasonable minds could differ as to whether or not plaintiff’s injuries arose out of the operation or use of a motor vehicle, or whether they arose out of being thrown by the security guards. A video tape shown at trial showed that plaintiff was nudged by the van and plaintiff conceded in his own testimony that the van merely nudged him in the back of the leg. The evidence created a question as to whether or not the injuries were caused by being nudged by the vehicle as distinguished from being thrown by the guards. The Court of Appeals held that if plaintiff s injuries were caused by having been thrown by the guard, then they did not arise out of the normal use or operation of a motor vehicle. The Court of Appeals held that if the injuries arose out of being thrown by the guards, then they would have arisen out of a personal physical attack independent of operation of a motor vehicle. Being intentionally thrown by a guard out of the path of a moving vehicle is not a foreseeably identifiable part of the normal risks of motoring. The Court of Appeals rejected plaintiff’s argument that being thrown out of the path of the van created a sufficient causal nexus.
The Court of Appeals also rejected plaintiffs claim that defense counsel's comments on opening statement that incorrectly suggested that there had to be contact with the vehicle were improper. The court noted that although contact with a vehicle is not necessarily required to establish a causal nexus, the comments of defense counsel were intended to dispute plaintiff’s theory of recovery, and the court's jury instructions corrected any possible error. Finally, the court denied plaintiffs claim that there was an abuse of discretion in eliminating certain testimony from the video tape deposition of plaintiffs treating physician. The court held that the excluded questions and answers failed to distinguish the trauma and injuries resulting from being struck by the vehicle, from the trauma and injuries resulting from being thrown by the guard. Therefore, exclusion of such questions and answers was appropriate.
