McPHERSON v. McPHERSON
McPHERSON v. McPHERSON
Opinion of the Court
Memorandum Opinion. Plaintiff developed a neurological disorder as a result of injuries sustained in a 2007 motor vehicle accident. Subsequently, in 2008, while driving a motorcycle, he experienced a seizure consistent with that disorder, lost control of the motorcycle, crashed into a parked car, and sustained a severe spinal cord injury that left him quadriplegic. Plaintiff did not assert that he was entitled to no-fault benefits
Given that there is no dispute regarding the material facts and that the parties agree that the 2007 accident involved the use of a motor vehicle as a motor vehicle and that plaintiff is entitled to personal protection insurance (PIP) benefits from Progessive for all injuries “arising out of” that accident, including the neurological disorder, the only question here is whether the spinal cord injury plaintiff suffered in the 2008 crash “ar[ose] out of” the 2007 accident for purposes of MCL 500.3105(1).
Pursuant to MCL 500.3105(1), a PIP provider is liable “to pay benefits for accidental bodily injury
[A]n insurer is liable to pay benefits for accidental bodily injury only if those injuries “aris[e] out of” or are caused by “the ownership, operation, maintenance or use of a motor vehicle...It is not any bodily injury that triggers an insurer’s liability under the no-fault act. Rather, it is only those injuries that are caused by the insured’s use of a motor vehicle.
Regarding the degree of causation between the injury and the use of the motor vehicle that must be shown, this Court has established that an injury arises out of the use of a motor vehicle as a motor vehicle when “the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.’ ” Thornton v Allstate Ins Co, 425 Mich 643, 659 (1986).
In this case, the causal connection between the 2008 spinal cord injury and the 2007 accident is insufficient to satisfy the “arising out of” requirement of MCL 500.3105(1).
We reject plaintiffs argument that Scott v State Farm Mut Auto Ins Co, 278 Mich App 578; 751 NW2d 51 (2008), is relevant to this case. The Court of Appeals held in Scott that summary disposition was premature because the plaintiff had raised a genuine issue of material fact whether her hyperlipidemia occurred as a direct result of an injury she had received in an automobile accident or was attributable to other factors. That is, the issue was whether the evidence was sufficient to support a finding that the first injury caused the second injury in a direct way. In this case, plaintiff claims as fact that his spinal cord injury occurred as a result of the neurological disorder from the first accident in combination with the intervening motorcycle accident. The facts alleged by plaintiff are insufficient to support a finding that the first injury caused the second injury in any direct way. Rather, the facts alleged by plaintiff only support a finding that the first injury
Because plaintiffs spinal cord injury had only this limited causal connection to the use of a motor vehicle in 2007, the injury did not arise out of the use of a motor vehicle for purposes of MCL 500.3105(1). Accordingly, the trial court erred by failing to grant Progressive summary disposition on that basis, and the Court of Appeals erred by affirming that decision. In lieu of granting Progressive’s application for leave to appeal, we reverse the judgment of the Court of Appeals and remand for entry of summary disposition in favor of Progressive.
Plaintiff apparently anticipated that he could not recover no-fault benefits from the 2008 crash because a motorcycle is not a “motor vehicle” for purposes of the no-fault act, MCL 500.3101(2)(e), and none of the exceptions that allow recovery in an accident involving a parked motor vehicle seem applicable, see MCL 500.3106.
McPherson v McPherson, unpublished opinion per curiam of the Court of Appeals, issued January 10, 2012 (Docket No. 299618). Progressive argued below that plaintiff could not recover first-party no-fault benefits because he had no insurance for his motorcycle. This was the basis for a Court of Appeals dissent. Progressive now concedes that there was, in fact, insurance for the motorcycle and has abandoned this argument.
McPherson v McPherson, 493 Mich 853 (2012).
Plaintiffs focus on the “causal genesis” of the injury is particularly misplaced. The question under Thornton is not whether the use of a motor vehicle constitutes the “causal genesis” of an injury, but whether the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or “but for.” This not only requires that the motor vehicle be used “as a motor vehicle” in the incident that gives rise to the injury, hut also that the accidental bodily injury “aris[e] out of” that vehicular use.
The dissent erroneously focuses on the existence of a causal connection between the “seizure” and the “fall,” rather than on the causal connection between the 2008 spinal cord injury and the 2007 accident. Post at 302 (“Because plaintiffs fall was an inextricable aspect of his seizure, I believe that plaintiff can satisfy MCL 500.3105(1).”). Although we agree with the dissent that for purposes of this appeal it is assumed as fact that plaintiffs second seizure and resultant fall came about as a result of the neurological disorder suffered in the first accident, it does not follow, as the dissent concludes, that “the 2008 injuries were an inextricable result of [plaintiffs] seizure disorder” as well. Post at 302 (emphasis added). Indeed, had plaintiff been in bed or on the couch when he had the seizure, the “inextricable” injury would not have occurred.
Dissenting Opinion
(dissenting). I respectfully dissent because I believe that plaintiff is able to satisfy the requirement in MCL 500.3105(1) that his 2008 injuries “ar[ose] out of” his 2007 motor vehicle accident.
As the majority explains, there is no dispute that plaintiffs 2007 accident involved the use of a motor vehicle as a motor vehicle and that Progressive Michigan Insurance Company is statutorily obligated under
This Court has explained that coverage under MCL 500.3105(1) is available “only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for.’ ” Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986). Thus, the motor vehicle must be the “instrumentality” of the injury. Id. at 660.
Thornton’s application is relatively straightforward when faced with an acute injury. For example, if an insured suffers a broken arm while involved in a motor vehicle accident, it is clear that the motor vehicle was the instrumentality of the broken arm because that injury occurred at the moment of the accident. Accordingly, the causal connection between the broken arm and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or “but for.”
Although slightly more difficult, applying Thornton’s logic to some chronic injuries is also fairly straightforward. For example, if an insured suffered a kidney injury in a motor vehicle accident and, after a period of time, required a kidney transplant because of the continuing deterioration of the kidney, it is clear that the need for the transplant, although separated from the accident by time, would nevertheless constitute a progression of the injury that occurred in the accident. Accordingly, the causal connection between the need for the kidney transplant and the use of the motor vehicle as a motor vehicle would be more than incidental, fortuitous, or “but for.”
This case, however, presents a difficult issue because of the chronic, yet intermittent, nature of the injury that plaintiff suffered in the 2007 motor vehicle acci
According to his physician, shortly after the 2007 accident plaintiff suffered a grand mal seizure. The physician testified that “posttraumatic seizure can happen at any time. You can have head trauma today, you can have a seizure from posttrauma [sic] two days later, you can have it a year later, you can have it the rest of your life.” According to the Mayo Clinic, grand mal seizures have two phases — tonic and clonic — that exhibit different symptoms. In the tonic phase, “[l]oss of consciousness occurs, and the muscles suddenly contract and cause the person to fall down.” Mayo Clinic, Grand Mai Seizure <http://www.mayochnic.com/health/grand-mal-seizure/ DS00222/DSECTION’symptoms> (accessed April 2, 2013) (emphasis added). In the clonic phase, “[t]he muscles go into rhythmic contractions, alternately flexing and relaxing. Convulsions usually last for less than two minutes.” Id.
Thus, a person with a seizure disorder may go long periods without exhibiting any signs of the disorder. However, even during those nonsymptomatic periods, the person nevertheless has a seizure disorder, and in plaintiffs case, the seizure disorder arose out of the use of a motor vehicle as a motor vehicle. Unlike an insured with a kidney injury whose condition consistently and predictably worsens over time, plaintiffs injury has resulted in sudden, unpredictable symptomatic episodes. And during those sudden symptomatic episodes, plaintiffs seizure disorder causes him to unexpectedly lose consciousness and muscle control and fall down.
As the majority’s analysis demonstrates, the intermittent nature of plaintiffs seizure disorder lends itself to the conclusion that any subsequent injury is caused
In summary, I think that the 2007 motor vehicle accident bore more than an incidental, fortuitous, or “but for” connection to plaintiffs 2008 injuries because plaintiffs 2008 injuries are directly related to the seizure disorder, i.e., the 2008 injuries were an inextricable result of his seizure disorder. Accordingly, I dissent from the majority’s decision to grant summary disposition in favor of Progressive.
Reference
- Full Case Name
- Ian McPherson v. Christopher McPherson
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- 23 cases
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- Published