Court of Appeals Issue Yet Another Opinion Articulating Different View of “Causation” in Motorcycle Accident Coverage Under No-Fault Act

In Braverman ex rel Smutzki v Auto-Owners Insurance Company, the Court of Appeals issued another legal ruling on the extent or level of “involvement of a motor vehicle” in a motorcycle accident required under the No-Fault Act.  In the past couple of months, the Court of Appeals has issued two other opinions, each of which seem to arrive at differing conclusions regarding the application and definition of the statutory requirement that a motor vehicle be “involved” in an accident with the motorcycle for the motorcyclist to recover benefits under the No-Fault Act.

Background

In this case, the motorcyclist suffered a fatal brain injury when she “laid down her bike” to avoid an apparently imminent collision with a tractor-trailer which was making a slow left turn in front of her.

It was approximately 10:00 p.m.  The street was poorly lit, if at all.  The decedent was riding her bike along with two other motorcyclists.  Their speed was approximated to be 30 to 45 miles per hour.

According to the testimony of one of decedent’s companions, she sped up suddenly and passed him on the left.  He testified this was unusual as they rode together often and he always took the lead and stayed on her left.  He also testified she was looking down at her right hand, which was the throttle side of her bike’s handlebars.  He noted that her throttle had gotten stuck once in the past when he was riding her bike.  He speculated at his deposition this may have been the cause for her sudden acceleration, her unusual maneuver around his left side, and her focus on her throttle rather than the road in front of her.

At a point shortly thereafter, the decedent looked up and saw the tractor-trailer.  Instead of stopping, she swerved and “laid down her bike” to avoid collision.  She did not come into contact with the tractor-trailer.  She suffered a fatal brain injury as a result of her fall.

The accident occurred at approximately 10:00 p.m. on a street with little or no lighting.  There was conflicting testimony as to whether the tractor-trailer’s lights were illuminated at the time of the accident.

Court Rulings

Under the no-fault act, MCL 500.3101 et seq., a motorcycle is not a “motor vehicle.”  MCL 500.3101(2)(e).  For an injured motorcyclist to recover personal insurance protection (PIP) benefits, the accident must “involve a motor vehicle.”  MCL 500.3105; Auto Club Ins Ass’n v State Auto Mut Ins Co, 258 Mich App 328, 331 n 1; 671 NW2d 132 (2003).

MCL 500.3114(5) establishes the order of priority of insurance coverage with respect to which insurer must pay the PIP benefits to the injured motorcyclist:

A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in the accident;

(b) The insurer of the operator of the motor vehicle involved in the accident.

(c) The motor vehicle insurer of the operator of the motorcycle involved in the accident.

(d) The motor vehicle insurer of the owner or registrant of the motorcycle involved in the accident.

(emphasis added).

Thus, if the tractor-trailer was “involved in the accident” that led to decedent’s injuries and death, then her estate can recover PIP benefits from defendant under MCL 500.3114(5)(a).  Generally, when there is physical contact between the injured party and a motor vehicle, that motor vehicle is involved under MCL 500.3114(5).  See Auto Club Ins Ass’n, 258 Mich App at 339-341. In this case, the parties agreed that neither decedent nor her motorcycle ever came into contact with the tractor-trailer. However, even if there was no physical contact, a motor vehicle
can still be involved in an accident. See Turner v Auto Club Ins Ass’n, 448 Mich 22, 39; 528 NW2d 681 (1995); Frierson v West American Ins Co, 261 Mich App 732, 736-737; 683 NW2d
695 (2004).  In Turner, the Supreme Court held:  [F]or a vehicle to be considered “involved in the accident” under MCL 500.3125 the motor vehicle, being operated or used as a motor vehicle, must actively, as opposed to passively, contribute to the accident. Showing a mere “but for” connection between the operation or use of the motor vehicle and the damage is not enough to establish that the vehicle is “involved in the accident[.]”  In Turner, 448 Mich at 25-26, a police car had its lights activated and was quickly pursuing a stolen vehicle. The stolen vehicle ran a red light and hit two trucks. Turner, 448 Mich at 25-26. One of the trucks split into two and crashed into a building, causing a fire and extensive property damage. Id. at 26. The police car did not collide with the stolen vehicle or either truck. Id. Nonetheless, our Supreme Court held that the police car was involved in the accident because its pursuit of the stolen vehicle prompted that vehicle’s driver “to ignore the red light and collide with the other vehicles,” so its insurer was responsible for paying property protection benefits with respect to the damaged building. Id. at 42-43.

In this case, the trial court concluded that the tractor-trailer was involved in the accident as a matter of law because the accident occurred when decedent reacted to the tractor-trailer in the road. The court compared the tractor-trailer to the police car in Turner, 448 Mich at 42-43, which the Court held was involved in the accident that caused property damage because the police car’s lights and speed caused the car it was pursuing to crash into another
vehicle, which then crashed into a building. Given this conclusion, the trial court ruled in plaintiff’s favor as a matter of law.

The Court of Appeals reverses, holding the trial court’s “but for” analysis was prohibited by the Supreme Court’s decision in Turnersupra, and that further factual development needed to occur to consider the extent to which the tractor-trailer was involved in the accident.

The panel somehow concludes the fact the tractor-trailer was moving slowly as opposed to stopped in the roadway made a difference in the extent to which it was or was not “involved” in the motorcyclist’s accident.  The panel also notes there was a factual question concerning whether the tractor-trailer was visible, given the time at night, the poor lighting of the roadway, and some conflict in the testimony concerning whether the operator of the tractor trailer had illuminated his lights and flashers.

There are several other interim rulings made by the Court of Appeals that are of import to the remand proceedings and the remaining progression of the case, but the focus of this article is on the divergence, yet again, in causation analysis under the No-Fault Act.

Conclusion and Takeaway

This is yet another case adding to confusion (or at least uncertainty) of the extent to which an automobile must truly be involved in, i.e., the cause of or a cause of, an accident involving a motorcycle.  The answer to the inquiry is extremely important in determining the priorities of insurance coverage available under the No-Fault Act.

Two of my prior posts speak to the “causation” analyses being employed by the courts in motorcycle accidents (and each of the cases appears to come to varying results (particularly in the spectrum of causative factors applied to come to the conclusion that a motor vehicle was in fact involved in a motorcycle accident).

Those posts are as follows:

Police Vehicle Involved In Motorcyclist’s Accident with Another Vehicle Where Police Vehicle Pursued Motorcyclist But Then Gave Up On the Chase

Motorcyclist’s Attempt to Avoid Collision with Motor Vehicle Not Sufficient “Involvement” of Motor Vehicle in Accident to Trigger Priority of Coverage Analysis

The Supreme Court appears to be narrowing (rather than expanding) the spectrum of causative factors in more recent pronouncements concerning “causation”, generally, under the No-Fault Act.

Supreme Court’s Decision in McPherson Concerning “Causation” in No-Fault Automobile Insurance Coverage Case

Considering the Supreme Court’s more recent pronouncement in McPherson, the dubious nature of the causation analysis employed in the 1995 Turner decision, the facts presented here, and other contrary Court of Appeals opinions, I believe this case is destined for further appellate treatment by the Supreme Court.

There are different statutory provisions at stake, but the attenuated nature of the causation analysis employed by the Court of Appeals in the instant case does seem to warrant further treatment by Michigan’s One Court of Justice.

It seems the answer lies somewhere in between the “actual contact” rule and the “passive contribution” or “but for” rule.

We shall see.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

Lacey & Jones, LLP’s Appeals and Legal Research Group

Lacey & Jones, LLP’s Insurance Coverage and Recovery Group

Lacey & Jones, LLP’s Civil Litigation Group

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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