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144666 - McPherson v McPherson

Ian McPherson,
Merrill H. Gordon
(Appeal from Ct of Appeals)
(Oakland – Chabot, R.)
Christopher McPherson and AAA Auto Club Group Insurance Company,
Progressive Michigan Insurance Company,
Robert D. Goldstein
Auto Club Insurance Association, Memberselect Insurance Company, and Auto Club insurance Company,


​In November 2007, the day after being in an accident in a car his brother was driving, Ian McPherson suffered a grand mal seizure. According to the treating physician, Dr. M. Mazen Al-Hakim, the seizure was triggered by a head trauma McPherson suffered in the accident, and by his ingestion of Adderal, a prescribed amphetamine used to control symptoms of ADHD. The physician also opined that McPherson probably has an “underlying genetic predisposition” to seizures.

After being hospitalized for the initial seizure, McPherson received follow-up neurological care from Dr. Brien Smith, an epilepsy specialist. Progressive Michigan Insurance Company, which insured the brother’s car, was responsible for paying no-fault benefits related to the 2007 accident. According to Alison Wieck, a Progressive claims supervisor, Progressive contacted Smith to obtain his opinion regarding whether the car accident caused McPherson’s seizure disorder. According to notes kept by a Progressive claims’ representative, Smith submitted an attending physician’s statement attesting that McPherson’s seizures were “solely related to” the motor vehicle accident. Wieck admitted that, after receiving this statement, Progressive made no effort to obtain additional information or another medical opinion.

On September 19, 2008, while riding his uninsured motorcycle on Woodward Avenue, McPherson “blacked out” and struck a parked car. He suffered severe injuries in the 2008 accident, including ventilator-dependent quadriplegia.

McPherson made a first-party, no-fault benefits claim for his injuries in the motorcycle crash, but Progressive denied coverage, pointing out that he did not have no-fault insurance for the motorcycle. McPherson sued, and Progressive moved for partial summary disposition. Progressive argued that McPherson’s claim for first-party no-fault benefits related solely to the 2008 motorcycle accident rather than the 2007 car crash; because McPherson neglected to insure the motorcycle, he forfeited any entitlement to first-party no-fault benefits, Progressive contended. In response, McPherson submitted Al-Hakim’s deposition testimony. The doctor explained, “If you have a head trauma causing amnesia or loss of consciousness, and especially if you have [a] genetic predisposition, and especially [if] you [are] taking [an] amphetamine, then you [are] going to have seizures in the future.”

The trial court denied Progressive’s motion, finding that “viewing the evidence in a light most favorable to plaintiff it is possible for a reasonable juror to determine the second accident was caused by the injuries suffered in the first. I’m not saying it’s the best case and I’m not saying that you will necessarily prevail, but it does survive a summary disposition.”

Progressive sought leave to appeal in the Court of Appeals, which ultimately granted leave to appeal. But in a 2-1 unpublished per curiam opinion, the appellate court affirmed the trial court’s ruling.

“The parties’ dispute centers on whether the no-fault act, MCL 500.3101 et seq., obligates Progressive to pay personal protection insurance benefits flowing from the injuries Ian sustained in the 2008 motorcycle accident,” the majority noted. “An injured claimant’s entitlement to personal protection benefits arises from MCL 500.3105(1), which states: ‘Under 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.’”

But the no-fault act precludes personal protection benefits “‘if at the time of the accident the person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect.’ MCL 500.3113(b) (emphasis added),” the majority continued. MCL 500.3103(1) provides: “An owner or registrant of a motorcycle shall provide security against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by a person arising out of the ownership, maintenance, or use of that motorcycle.”

McPherson argued that his injuries, including his seizure disorder, arose from the November 2007 accident in which his brother was driving a car insured by Progressive. Past Court of Appeals decisions had interpreted “arising out of” to mean that the injured person had to “establish a causal connection between the use of the motor vehicle and the injury,” but did not have to show that the accident was the direct or proximate cause of the injuries, the majority noted. The majority interpreted “arising out of” to mean “originated from,” “had its origin in,” “grew out of,” or “flowed from.”

Using this interpretation, the majority said that, viewed in the light most favorable to McPherson, there was sufficient evidence, including the opinions of the two doctors, for a jury to find that McPherson’s 2008 injuries arose from his brother’s operation of the car in the 2007 accident. The evidence reasonably supports a causal connection that is “more than incidental, fortuitous, or ‘but for,’” the majority stated.

The majority rejected Progressive’s argument that the motorcycle accident constituted a separate and superseding cause that relieved Progressive of liability; McPherson did not need to show that the 2007 accident was the only possible cause of his 2008 injuries. “Where use of the vehicle is one of the causes of the injury, a sufficient causal connection is established even though there exists an independent cause,” the majority said, citing Shinabarger v Citizens Insurance Co., 90 Mich App 307 (1981). “Had Ian injured his spinal cord in 2008 by falling from a ladder during a seizure, Progressive would potentially bear liability. That Ian instead suffered a seizure while riding a motorcycle does not, standing alone, eliminate any connection between his 2007 head injury and the 2008 events.”

Moreover, “[a]lthough Progressive vigorously contests that Ian’s seizure disorder arose from the 2007 accident, it presented no evidence contradicting Dr. Al-Hakim’s testimony or the opinion apparently rendered by Dr. Smith. The record includes no evidence refuting Ian’s claim that his seizure disorder arose from the 2007 car accident, or that a seizure triggered the 2008 motorcycle crash.”

The dissenting judge rejected the majority’s interpretation of “arising out of,” saying that “the no-fault act is free from a ‘causation’ analysis …. Instead, the focus must be on MCL 500.3113(b) and whether no-fault benefits are unavailable to Ian as a matter of law because he was operating an uninsured motorcycle at the time he suffered the injuries for which he now seeks coverage.”

Under MCL 500.3113(b), “A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed . . . The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect.” The dissent said there was “no question” that McPherson owned the motorcycle and was required to obtain insurance for it, nor was there any question that the motorcycle crash caused his paraplegia and that he was seeking benefits for that injury.

Citing DeSot v ACIA, 174 Mich App 251 (1988), the dissent said that that decision “clearly finds that § 3113(b) denies coverage to those individuals who act in utter defiance of the statutory mandate that they obtain and maintain insurance coverage for their motorcycles.”

In light of § 3113(b)’s clear mandate, it was “intellectually dishonest” to draw a connection between the 2008 injuries and the 2007 accident, the dissent said. “Nothing relieved Ian of his legal obligation to insure his motorcycle.”

Progressive appealed. In an order dated September 21, 2012, the Supreme Court ordered the case to be scheduled for oral argument “on whether to grant the application or take other action.”