Michigan Court of Appeals; Docket No. 67051; Published
Judges Kelly, Shepherd, and Cooper; Opinion by Judge Shepherd
Official Michigan Reporter Citation: 130 Mich App 777; Link to Opinion
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
This Opinion by Judge Shepherd dealt with the issue of whether death due to heart failure caused by inhalation of toxic fumes emitted by a herbicide being transported by plaintiff’s decedent in an enclosed automobile is compensable under §3105(1) of the No-Fault Act. The trial court granted summary judgment in favor of defendant for the reason that "the same injury could have occurred had plaintiff’s deceased spouse inhaled the fumes in a closed building." The Court of Appeals reversed for the primary reason that the factual record was unclear as to whether such an injury could in fact have occurred elsewhere. In reversing, the Court stated in pertinent part:
"For reasons stated herein, we find that we are unable to state as a matter of law that the same injury could have occurred had plaintiff’s deceased spouse inhaled the fumes in a closed building. If the facts at trial established that the injury could only have occurred within the type of closure that is found in an automobile, there would then be a sufficient relationship between the injury and the operation of an automobile to allow for recovery under the No-Fault Act. Since we believe this issue requires factual development, we are reversing and remanding for trial at which an issue will be whether the injury in this case could only have occurred inside an automobile. We also believe that there are other issues capable of factual development, i.e., whether the closure of the automobile as an automobile caused decedent to be overcome or whether the movement of the vehicle caused the fumes to be emitted."
In articulating its holding in this fashion, the Court was in essence suggesting that the "causal nexus" theory set forth in Kangas v Aetna and adopted by many decisions interpreting §3105(1) had an additional element. In the words of the Court, "Thus, it appears that if the injury can only occur in a motor vehicle regardless of the nature of the immediately precipitating act, there is coverage under the No-Fault Statute."
Judge Kelly concurred in the result only. He wrote a separate concurring opinion in which he disagreed with any departure from prior case law applying the "causal nexus" rule. Under this doctrine, an injury is compensable under §3105(1) if there is a causal connection between the automobile and the injury which is more than fortuitous, incidental or but for and the injury is foreseeable identifiable with the normal use of an automobile. Judge Kelly states, "As I read it, the majority opinion in this case creates an additional inquiry or test in determining whether an injury is compensable under no-fault: 'If the injury can only occur in a motor vehicle there is coverage under the No-Fault Statute.'" Judge Kelly wrote that contrary to the majority's view, no previous Court of Appeals or Supreme Court decision "provides precedent for this new inquiry." Judge Kelly would vote for reversal purely on the fact that plaintiff had insufficiently pled a causal connection between decedent's death and the automobile which was more than incidental or fortuitous.