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142936 - Boertman v Cincinnati Ins

Gale Boertmann,
Ellen G. Schreuder
Drew Slager
(Appeal from Ct of Appeal)
(Macomb – Maceroni, P.)
Cincinnati Insurance Company,
Robert P. Hurley


Gale Boertmann was in her car following her son Chris on his motorcycle when another driver cut across the road and collided with Chris; Boertmann, who saw the collision, pulled her car over and went to her son as he lay bleeding in a nearby parking lot. Chris was pronounced dead approximately 30 minutes after the collision. 

Boertmann sank into depression after her son’s death, suffering from sleep loss, nightmares, memory loss, and headaches; she took a leave of absence from her job. Her treating psychologists diagnosed her as suffering from “post-traumatic stress disorder and a major depressive disorder, single episode, severe without psychotic features.” 


Boertmann filed a claim for no-fault personal protection insurance (PIP) benefits from her insurer, Cincinnati Insurance Company, which denied her claim. She then sued Cincinnati Insurance to recover benefits for wage loss, replacement services, and her medical expenses. Both parties filed a motion for summary disposition under MCR 2.116(C)(10), with the central question being whether Boertmann’s injuries arose out of the use of a motor vehicle as a motor vehicle, as required by MCL 500.3105(1). The statute explains that, “[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 . . . .”

Initially, the trial court ruled in Cincinnati’s favor, concluding that, although the motor vehicle involved in the collision “certainly contributed to cause the condition which produced plaintiff’s injury in this matter . . . the motor vehicle itself, did not produce plaintiff’s injury.” But the trial court then granted Boertmann’s motion for reconsideration, and ruled that there was a sufficient causal connection between her injury and the motor vehicle collision; the court ordered Cincinnati Insurance to pay benefits.

The Court of Appeals affirmed in a published opinion. The appellate court emphasized that, according to Boertmann’s psychologists, her injuries, including her depression, were the result of her having witnessed her son’s fatal collision. Boertmann’s injuries did not, the panel held, need to result from her own use of a motor vehicle to fall within the scope of MCL 500.3105(1), nor did Boertmann’s injuries need to result from physical contact with a motor vehicle. Boertmann’s injuries arose out of the use of a motor vehicle as a motor vehicle, the Court of Appeals concluded; she was therefore entitled to PIP benefits.

Cincinnati Insurance appeals.