Kenneth Kovach v. Citizens Insurance Company ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH KOVACH, UNPUBLISHED
March 2, 2023
Plaintiff-Appellant,
v No. 359474
Macomb Circuit Court
CITIZENS INSURANCE COMPANY, LC No. 2021-000205-NF
Defendant-Appellee,
and
CHRISTOPHER ALLEN SWANK,
Defendant.
Before: RICK, P.J., and M. J. KELLY and RIORDAN, JJ.
PER CURIAM.
In this no-fault insurance case, plaintiff Kenneth Kovach appeals by leave granted1 the
order granting partial summary disposition under MCR 2.116(C)(10) in favor of defendant2
Citizens Insurance Company. We affirm.
I. BACKGROUND
Plaintiff suffered injuries on February 26, 2020, when the motor vehicle in which he was a
passenger was rear-ended by a motor vehicle driven by defendant Christopher Swank. The
following day, plaintiff went to the hospital with complaints of a headache, neck pain, and shoulder
pain. Plaintiff was diagnosed with a concussion, an unspecified headache, and a neck strain. A
1
Kovach v Citizens Ins Co, unpublished order of the Court of Appeals, entered April 7, 2022
(Docket No. 359474).
2
Defendant Christopher Allen Swank is not a party to this appeal. All references to “defendant”
are to Citizens Insurance Company only.
-1-
CT scan of plaintiff’s head did not reveal any hemorrhages or other abnormalities. An MRI of
plaintiff’s neck that was taken approximately one month later revealed a “[s]ignificant attenuated
flow void involving plaintiff’s right vertebral artery.”
According to plaintiff’s deposition testimony, he fell on three occasions in May 2020. He
first fell while picking dandelions. He fell a second time in his bathroom after experiencing
dizziness. Plaintiff fell a third time after he stood up from a sitting position in a swivel chair and
experienced vertigo. As plaintiff fell he struck his head on the wall “pretty hard.” Plaintiff’s
headaches worsened thereafter. On July 2, 2020, plaintiff underwent another CT scan of his head.
The CT scan revealed a right subdural hematoma, which is bleeding in the subdural layer of the
brain. Plaintiff believed that the hematoma was caused when he struck his head against the wall.
On July 20, 2020, plaintiff underwent a surgical procedure to evacuate the hematoma.
On January 19, 2021, plaintiff commenced this action for first-party personal protection
insurance (PIP) benefits against defendant, his insurer. Defendant moved for partial summary
disposition under MCR 2.116(C)(10). Defendant argued that because plaintiff’s subdural
hematoma was caused by his fall, the hematoma was too far removed from the motor vehicle
accident to satisfy the “arising out of the ownership, operation, maintenance or use of a motor
vehicle” language of MCL 500.3105(1). After a hearing, the trial court agreed and entered an
order granting defendant’s motion for partial summary disposition.
II. ANALYSIS
Plaintiff argues that the trial court erred by granting partial summary disposition in favor
of defendant because a genuine issue of fact existed regarding whether the subdural hematoma he
suffered in his May 2020 fall arose out of the February 2002 accident for purposes of
MCL 500.3105(1). We disagree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Shinn v Mich Assigned Claims
Facility, 314 Mich App 765, 768; 887 NW2d 635 (2016). In reviewing a motion under subrule
(C)(10), this Court considers the pleadings, affidavits, depositions, and other evidence in the light
most favorable to the nonmoving party. Id. A motion under subrule (C)(10) “may only be granted
when there is no genuine issue of material fact.” El-Khalil, 504 Mich at 160. Interpretation of a
statute constitutes a question of law that is also reviewed de novo. Shinn, 314 Mich App at 768.
MCL 500.3105(1) states, “[u]nder personal protection insurance an insurer is liable to pay
benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of
a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” Plaintiff argues that
he is entitled to PIP benefits for his subdural hematoma. However, even viewing the evidence in
the light most favorable to plaintiff, there is no genuine issue of material fact concerning whether
plaintiff’s subdural hematoma arose out of the “ownership, operation, maintenance or use of a
motor vehicle as a motor vehicle.”
McPherson v McPherson, 493 Mich 294; 831 NW2d 219 (2013), controls. In that case,
the “[p]laintiff developed a neurological disorder as a result of injuries sustained in a 2007 motor
-2-
vehicle accident.” Id. at 295. In 2008, the plaintiff suffered a “seizure consistent with that
[neurological] disorder” while riding his motorcycle. He lost control of the motorcycle and was
involved in another motor vehicle accident. Id. The plaintiff severely injured his spinal cord in
the 2008 accident but did not claim that he was entitled to PIP benefits for his spinal cord injury
as a result of the 2008 accident. Id. at 295-296. Instead, the plaintiff “claimed that he was entitled
to no-fault benefits for the spinal cord injury as a result of the 2007 incident,” claiming that his
injury arose out of the earlier accident “for the purposes of MCL 500.3105(1).” Id. at 296.
The Court emphasized that under the applicable standard for causation, “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 the motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but
for.’ ” Id. at 297, quoting Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986)
(quotation marks omitted). The Court concluded that there was not enough of a causal connection
between the 2007 accident and the plaintiff’s spinal cord injury to meet the “arising out of”
requirement, reasoning:
Plaintiff did not injure his spinal cord while using the vehicle in 2007. Rather, he
injured it in the 2008 motorcycle crash, which was caused by his seizure, which
was caused by his neurological disorder, which was caused by his use of a motor
vehicle as a motor vehicle in 2007. Under these circumstances, we believe that the
2008 injury is simply too remote and too attenuated from the earlier use of a motor
vehicle to permit a finding that the causal connection between the 2008 injury and
the 2007 accident is more than incidental, fortuitous, or ‘but for.’ [Id. at 297-298
(quotation marks and citation omitted).]
The Court further explained its reasoning in a footnote, stating:
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. Although we agree with the dissent that
for purposes of this appeal it is assumed as fact that plaintiff's 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 [plaintiff's] seizure disorder’ as well. Indeed, had plaintiff
been in bed or on the couch when he had the seizure, the ‘inextricable’ injury would
not have occurred. [Id. at 298 n 5 (citations omitted).]
In both McPherson and this case, a second incident caused the relevant injury. Here,
plaintiff did not suffer a subdural hematoma in the motor vehicle accident. Rather, he developed
the hematoma after falling and hitting his head, which was caused by his vertigo, which was caused
by his use of a motor vehicle in February 2020. In other words, the facts alleged by plaintiff only
support a finding that the “first injury directly caused the second accident, which in turn caused
the second injury.” McPherson, 493 Mich at 298-299.
Under McPherson, there is not a sufficient connection between the subdural hematoma and
the motor vehicle accident. Even if plaintiff’s fall was caused by vertigo caused by the motor
vehicle accident, the accident would not be more than an incidental, fortuitous, or “but for” cause
-3-
of his subdural hematoma. Therefore, plaintiff’s subdural hematoma did not “arise out of the
ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” pursuant to
MCL 500.3105(1).
Plaintiff attempts to distinguish McPherson by arguing that his subdural hematoma is a
natural and direct consequence of the motor vehicle accident and that there was no intervening
event that led to his injury. Plaintiff relies on the report of a medical expert that was submitted for
the first time with plaintiff’s motion for reconsideration. The expert, Francisco Diaz, M.D., opined
that (1) plaintiff’s vertigo resulted from the motor vehicle accident, (2) that vertigo caused plaintiff
to fall and suffer a subdural hematoma, and (3) that the motor vehicle accident was therefore the
“originating event from where the cascade of medical complications above described arose from.”
Dr. Diaz opined, “[i]n other words, if it [were not] for the collision [plaintiff] would not have
sustained the complications that led eventually to neurological surgery.” We are, legally speaking,
not convinced. The expert’s report does not distinguish this case from McPherson. Rather, Dr.
Diaz’s report confirms the attenuated connection between the motor vehicle accident and
plaintiff’s subdural hematoma.
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Michelle M. Rick
/s/ Michael J. Kelly
/s/ Michael J. Riordan
-4-