20221229_C359431_28_359431.Opn.Pdf ( 2022 )

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
REBA LAPOINTE, UNPUBLISHED
December 29, 2022
Plaintiff-Appellee,
v No. 359431
Wayne Circuit Court
KAYLA CHRISTINE ROJO, LC No. 19-016454-NI
Defendant,
and
MEMBERSELECT INSURANCE COMPANY,
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.
PER CURIAM.
In this no-fault personal protection insurance (PIP) action, defendant MemberSelect
Insurance Company (hereinafter MemberSelect) appeals by leave granted1 the trial court’s order
denying MemberSelect’s motion for summary disposition. We reverse and remand for further
proceedings.
On May 6, 2019, plaintiff was driving her leased 2019 Equinox (insured by MemberSelect)
when she was in a motor vehicle accident. In June 2019, plaintiff started suffering from dizziness
and vertigo, which her doctors attributed to a postconcussion syndrome, which in turn was something
she developed because of her motor vehicle accident. In November 2019, plaintiff walked out the
front door of her condominium onto her front porch; she fell from her porch and fractured her ankle.
Plaintiff attributes her fall from the porch to a dizzy spell, and she attributes her dizzy spells to the
car accident. Plaintiff had to have surgery on her ankle and incurred other medical expenses relating
1
Reba LaPointe v Kayla Christine Rojo, unpublished order of the Court of Appeals, entered March
17, 2022 (Docket No. 359431).
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to her ankle injury. MemberSelect rejected plaintiff’s claim for medical expenses related to her
fractured ankle.
As a result, plaintiff filed her complaint alleging that she was entitled to PIP benefits for her
ankle injury. MemberSelect eventually filed a motion for summary disposition pursuant to MCR
2.116(C)(10), which only addressed the claims related to plaintiff’s ankle injury. MemberSelect
argued that because plaintiff’s ankle injury was caused by her fall from the porch, her ankle injury
is 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 rejected this argument and entered an order denying MemberSelect’s motion for
summary disposition.
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). MemberSelect
brought its motion for summary disposition under MCR 2.116(C)(10), which “tests the factual
sufficiency of a claim.” Id. at 160. A motion under MCR 2.116(C)(10) “may only be granted when
there is no genuine issue of material fact.” Id. When considering a motion under MCR 2.116(C)(10),
“a trial court must consider all evidence submitted by the parties in the light most favorable to the
party opposing the motion.” Id.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
she is entitled to PIP benefits for her broken ankle. However, even viewing the evidence in the light
most favorable to plaintiff, there is no genuine issue of material fact concerning whether plaintiff’s
ankle fracture arose out of the “ownership, operation, maintenance or use of a motor vehicle as a
motor vehicle.” Id.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 vehicle
accident.” Id. at 295. In 2008, the plaintiff suffered a “seizure consistent with that [neurological]
disorder” while driving his motorcycle; he lost control of his vehicle, getting into another motor
vehicle accident. Id. The plaintiff severely injured his spinal cord in the 2008 motor vehicle accident
but did not claim he was entitled to PIP benefits for his spinal cord injury as a result of the 2008
motor vehicle accident. Id. at 295-296. Instead, he “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 a 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 then 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
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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 injure her ankle in the motor vehicle accident; she suffered head trauma that arguably led to
dizziness and vertigo, which then arguably led to a second incident (plaintiff falling off her porch),
which in turn caused her ankle injury. Under McPherson, there is not a sufficient connection
between the ankle injury and the motor vehicle accident.2
While the trial court may have been correct in concluding that questions of fact remain
regarding whether plaintiff’s dizziness and vertigo constituted a contributing factor in plaintiff
falling off the porch and whether plaintiff’s dizziness and vertigo were caused by the car accident,
these are not genuine issues of material fact. Even if plaintiff’s fall was caused by dizziness and
vertigo, and dizziness and vertigo were caused by her car accident, her car accident would not be
more than an incidental, fortuitous, or “but for” cause of her ankle injury. Therefore, plaintiff’s
ankle injury 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 her fall was a direct symptom of
the head injury she sustained in the car accident, stating that “[w]hereas the plaintiff in McPherson
did not suffer an injury that would directly case [sic] motorcycle collisions, [plaintiff] did suffer an
injury that would directly cause falls.” We are not convinced. Much like how the motorcycle
accident in McPherson would not have happened if the plaintiff had been lying in bed, plaintiff’s
2
Scott v State Farm Mut Auto Ins Co, 278 Mich App 578; 751 NW2d 51 (2008), is distinguishable
because, unlike in Scott, a second accident produced plaintiff’s injury; absent plaintiff’s fall from
the porch, she would not have injured her ankle. In addition, Scott relied on the “almost any causal
connection” standard, which “is discredited and inconsistent with current law to the extent it
suggests a plaintiff may meet the statutory causation requirement without proving the causal
connection was ‘more than incidental, fortuitous, or but for.’ ” Oostdyk v Auto Owners Ins Co,
498 Mich 913 (2015), citing McPherson, 493 Mich at 299.
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fall would not have happened if she had been sitting or lying down. Therefore, dizziness and vertigo,
not falling, were the direct symptoms of plaintiff’s head injury.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Defendant may tax costs, having prevailed in full.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Michael J. Riordan
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