STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS DANIEL VINCE CONSTANTINO, Plaintiff-Appellant, UNPUBLISHED January 12, 2012 v No Kent Circuit Court CITIZENS INSURANCE COMPANY OF LC No NI AMERICA, Defendant-Appellee. Before: HOEKSTRA, P.J., and K. F. KELLY and BECKERING, JJ. PER CURIAM. In this first-party no-fault insurance case, plaintiff, Daniel Constantino, appeals as of right the order granting summary disposition pursuant to MCR 2.116(C)(8) in favor of defendant, Citizens Insurance Company of America (Citizens). Because we conclude that Constantino s injury did not arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, we affirm. This case arises out of a pedestrian-snowmobile collision that occurred in January. According to the complaint filed in this case, Constantino was walking his dog on a road when he was struck by a snowmobile. Constantino alleged in his complaint that the snowmobile operator struck him because the snowmobile operator was blinded by the headlights of an oncoming motor vehicle. Constantino sustained severe injuries as a result of the accident. Constantino was covered under a Michigan no-fault automobile insurance policy issued by Citizens at the time of the accident. He submitted an application for personal protection insurance (PIP) benefits and documentation supporting his claim for payment of PIP benefits to Citizens on March 26, Citizens denied the claim, and Constantino initiated the instant lawsuit on May 26, In his complaint, Constantino sought a declaratory judgment ordering that he is entitled to present and future first-party PIP benefits. Citizens responded by moving for summary disposition pursuant to MCR 2.116(C)(8). The trial court granted summary disposition in favor of Citizens. The sole issue on appeal is whether the trial court properly concluded that Constantino failed to state a claim upon which relief could be granted. The trial court granted summary disposition in favor of Citizens because it concluded that the complaint did not allege facts to support a finding that Constantino s injuries arose from the use of a motor vehicle as required by -1-

2 MCL (1). On appeal, Constantino argues that his injuries arose from the use of a motor vehicle because the snowmobile driver struck him after being blinded by a motor vehicle s headlights. Accordingly, resolution of the issue requires interpretation of MCL (1). We review a trial court s decision to grant summary disposition de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). Summary disposition pursuant to MCR 2.116(C)(8) is proper if the nonmoving party failed to state a claim upon which relief can be granted. Kuznar v Raksha Corp, 481 Mich 169, 176; 750 NW2d 121 (2008). 1 Claims must be so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. (quotation and citation omitted). In reviewing a trial court s decision to grant summary disposition pursuant to MCR 2.116(C)(8), we review the pleadings alone, accepting all factual allegations in the complaint as true and construing them in a light most favorable to the nonmoving party. Id. Issues of statutory interpretation are questions of law that we review de novo. Krohn v Home-Owners Ins Co, 490 Mich 145, 155; 802 NW2d 281 (2011). The primary goal of statutory interpretation is to determine the intent of the Legislature. Id. at 156. The first step in that determination is to review the language of the statute itself. Id. Every word or phrase of a statute should be accorded its plain and ordinary meaning unless otherwise defined by the statute. Id. The no-fault act requires insurers to pay first-party no-fault benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. MCL (1); Cruz v State Farm Mut Auto Ins Co, 241 Mich App 159, 164; 614 NW2d 689 (2000). 2 The no-fault act should be liberally construed in favor of persons injured in motor vehicle accidents. Morosini v Citizens Ins Co of America, 224 Mich App 70, 74; 568 NW2d 346 (1997). Whether an injury arises out of the use of a motor vehicle must be determined on a case by case basis. Id. 1 We note that two depositions were taken by plaintiff s counsel before the summary disposition hearing; however, the parties and the trial court specifically indicated that the motion was being decided based on the pleadings alone pursuant to MCR 2.116(C)(8) and not MCR 2.116(C)(10). 2 We note that the parties also cite us to cases considering the requirement that a motor vehicle be involved in an accident; the involved in standard appears in MCL (5) and MCL (1) in regard to PIP benefits. After it is determined that an injury arose out of the use of a motor vehicle as a motor vehicle and the injured party is thus entitled to damages, a determination regarding which involved insurance carrier has to bear the costs and in what proportion is necessary pursuant to MCL The analysis for determining whether a vehicle is involved in an accident is similar but not identical to the analysis for determining whether the injury arose out of the use of the vehicle. See Turner v Auto Club Ins Ass n, 448 Mich 22, 31 n 7, 39; 528 NW2d 681 (1995). The involved in standard encompasses a broader causal nexus between the use of the vehicle and the damage than is required under the arising out of standard. Id. at 39. For a vehicle to be involved in an accident, it must be being used as a motor vehicle, there must be more than a but for connection between the operation of the vehicle and the injury, and there must be an active, rather than passive, link between the injury and the use of the motor vehicle that contributed to the accident. Id. -2-

3 Our Supreme Court has explained that no-fault coverage is only available pursuant to MCL (1) where 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. Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986). The connection of a motor vehicle to the injury should be directly related to its character as a motor vehicle. Id. (quotation and citation omitted). While the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile, and the causal connection must be more than incidental, fortuitous or but for. Id. at 650, quoting Kangas v Aetna Cas & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975). But for cause is the cause in fact of an injury, meaning that but for a particular action, the plaintiff s injury would not have occurred. Taylor v Kent Radiology, 286 Mich App 490, 511; 780 NW2d 900 (2009). Accordingly, the first consideration when determining whether the requirement set forth in MCL (1) is satisfied is the relationship between the injury and the vehicular use of a motor vehicle. Id. at Without a relation that is more than but for, incidental, or fortuitous, there can be no recovery of PIP benefits. Id. at 660. The complaint in this case alleges that Constantino was struck and injured by a snowmobile while walking his dog on a public road, and that the incident occurred because the driver of the snowmobile was blinded by bright lights of an oncoming vehicle causing an obstruction in his vision such that he could not avoid striking Daniel Constantino. From these facts, which we assume are true in a motion brought pursuant to MCR 2.116(C)(8), it is clear that the snowmobile driver s blindness was the but for cause of Constantino s injuries. The question before us is whether the motor vehicle s contribution to the injury resulting from this collision was more than the cause in fact. We conclude that it was not. Based on the facts alleged in the complaint, it is apparent that the snowmobile was proceeding on a course of travel prior to the accident that would result in a collision with Constantino, and that a collision between them was inevitable unless one of them took action to avoid it. Thus, the accident ultimately occurred because neither took timely evasive action. Under these circumstances, the fact that headlights of an oncoming vehicle blinded the snowmobile driver does not establish that the relationship of the vehicle to Constantino s injury was more than incidental, fortuitous, or a but for cause because the blinding bright lights from the vehicle was only one of many reasons why the driver of the snowmobile might have failed to notice Constantino and take evasive action. The driver s failure to observe and avoid the collision could just as easily have been the result of a setting sun, momentary inattention or any other type of distraction. These circumstances distinguish this case from the cases relied upon by Constantino where an injury resulted from the driver of a motorcycle taking evasive action to avoid contact with a motor vehicle. See, e.g., Bromley v Citizens Ins Co of America, 113 Mich App 131; 317 NW2d 318 (1982). In those cases, there is a direct relationship that is more than incidental fortuitous and but for between a motor vehicle and the injury even though, as is the case here, there is no actual contact with a motor vehicle. For example, in Bromley, the plaintiff, who was operating a motorcycle, was injured when a motor vehicle crossed the center line forcing the plaintiff to change his course of travel because if he had not swerved off the road, he would have been struck by the motor vehicle. Id. at 133. The only factor leading to the eventual accident and injury was the swerving of the motor vehicle. In this case, the snowmobile driver did not -3-

4 change his course of travel as a result of the motor vehicle and could have failed to perceive Constantino for any number of reasons. Consequently, we conclude that the snowmobile driver s failure to observe and avoid Constantino because he was blinded by the headlights of a motor vehicle did not establish a relationship to a motor vehicle that is more than incidental, fortuitous and but for. Further, we find Constantino s reliance on the analysis in McKenzie v Auto Club Ins Ass n, 458 Mich 214; 580 NW2d 424 (1998) unavailing to support his argument that the injuries arose out of the use of a motor vehicle as a motor vehicle. In McKenzie, the Court explained that [w]hether an injury arises out of the use of a motor vehicle as a motor vehicle under 3105 turns on whether the injury is closely related to the transportational function of automobiles. Id. at Accordingly, the Court determined that MCL (1) intended coverage of injuries resulting from the use of motor vehicles when closely related to their transportational function and only when engaged in that function. Id. at 220. Constantino maintains that headlights are closely related to the transportational function of an automobile. We agree that headlights are closely related to the transportational function of an automobile; however, that fact alone does not authorize the recovery of no-fault benefits. In McKenzie, the plaintiff was injured when carbon monoxide fumes leaked into a parked camper/trailer while he was sleeping and temporarily asphyxiated him. Id. at 216. The Court found that the injury that occurred while the plaintiff was sleeping in a parked camper/trailer was too far removed from the transportational function of the vehicle. Id. at 226. The analysis set forth in McKenzie regarding whether an injury resulted from the use of a motor vehicle that was closely related to its transportational function represents an additional requirement for recovery of no-fault benefits applicable to certain factual scenarios. In this case, the McKenzie analysis is inapposite because Constantino cannot demonstrate that the injury was more than but for, incidental, or fortuitous, as required by Thornton. Thornton, 425 Mich at 660. Consequently, we affirm the trial court s grant of summary disposition pursuant to MCR 2.116(C)(8) in favor of Citizens because Constantino did not allege any facts tending to show that his injury arose out of the use of a motor vehicle as a motor vehicle as required for no-fault benefits; accordingly, Constantino failed to state a claim upon which relief can be granted. Affirmed. /s/ Joel P. Hoekstra /s/ Kirsten Frank Kelly -4-

5 STATE OF MICHIGAN COURT OF APPEALS DANIEL VINCE CONSTANTINO, Plaintiff-Appellant, UNPUBLISHED January 12, 2012 v No Kent Circuit Court CITIZENS INSURANCE COMPANY OF LC No NI AMERICA, Defendant-Appellee. Before: HOEKSTRA, P.J., and K. F. KELLY and BECKERING, JJ. BECKERING, J. (dissenting). I respectfully dissent because I do not agree with the majority s causation analysis. In this first party no-fault case, plaintiff Daniel Constantino appeals as of right the trial court s order granting summary disposition under MCR 2.116(C)(8) in favor of defendant Citizens Insurance Company of America. The majority affirms the decision of the trial court, holding that plaintiff failed to allege sufficient facts in his complaint to establish that his injury arose out of the use of a motor vehicle as a motor vehicle under MCL (1). 1 I disagree and would reverse the trial court s order granting summary disposition to defendant. According to the allegations in plaintiff s complaint, which we accept as true for purposes of a motion under MCR 2.116(C)(8), on or about January 6, 2010, plaintiff was a pedestrian who was struck by a snowmobile [while] walking his dog on 127 th Avenue, and the accident occurred when the snowmobile operator was... blinded by the bright lights of an oncoming motor vehicle causing an obstruction in his vision such that he could not avoid striking [plaintiff]. The sole issue on appeal is whether the trial court properly concluded that plaintiff s factual allegations fail to establish that his injuries arose out of the use of a motor vehicle as a motor vehicle under MCL (1). 1 MCL (1) states in pertinent part 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

6 This Court reviews de novo a trial court s decision on a motion for summary disposition. Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010). A court may grant summary disposition under MCR 2.116(C)(8) if the opposing party has failed to state a claim on which relief can be granted. Id. (quotations omitted). A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings. Id. When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the nonmoving party. Id. at A court should grant summary disposition under MCR 2.116(C)(8) only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id. at 305. (quotation and citation omitted). A plaintiff looking to recover personal protection insurance benefits must meet the causation requirements in MCL (1). Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, ; 697 NW2d 895 (2005). Specifically, a plaintiff must show an accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. MCL (1); see also Griffith, 472 Mich at 531. The relationship between use of the vehicle and the injury need not approach proximate cause. Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313; 282 NW2d 301 (1979); see also Thornton v Allstate Ins Co, 425 Mich 643, 650; 391 NW2d 320 (1986). Indeed, this Court has stated that almost any causal connection or relationship will do. Shinabarger, 90 Mich App at 314; see also Bradley v Detroit Auto Inter-Ins Exch, 130 Mich App 34, 42; 343 NW2d 506 (1983). However, a plaintiff must show a causal connection that is more than incidental, fortuitous, or but for. Turner v Auto Club Ins Ass n, 448 Mich 22, 32; 528 NW2d 681 (1995). The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. Kangas v Aetna Cas & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975). In the present case, the majority concludes that the bright lights of the oncoming vehicle were a mere but for cause of the accident, and thus, the requisite causal connection set forth in MCL (1) is lacking. The majority deduces from the facts stated in the complaint that the snowmobile driver must have been proceeding on a course of travel prior to the accident that would result in a collision with [plaintiff], and that a collision between them was inevitable unless one of them took action to avoid it, and, thus, that the accident ultimately occurred because neither took timely evasive action. The majority further concludes that blinding bright lights was only one of many reasons why the driver of the snowmobile might have failed to notice [plaintiff] and take evasive action and that the snowmobile driver s failure to observe and avoid the collision could just as easily have been the result of a setting sun, momentary inattention or any other type of distraction. With all due respect for my esteemed colleagues, I find this analysis both speculative and legally faulty. First, we must accept as true plaintiff s allegation that the accident happened because the snowmobile operator was blinded by the bright lights of an oncoming motor vehicle, which caused his vision to be obstructed such that he could not avoid striking plaintiff. Consequently, whether any other distraction might have caused the snowmobile driver to fail to notice and avoid hitting plaintiff, such as a setting sun or momentary inattention, is irrelevant. What is relevant is whether the blinding bright lights of the oncoming vehicle were more than a but for, fortuitous, or incidental cause of the accident. -2-

7 Second, I do not agree with the majority s characterization of the cause of the accident as being that plaintiff and the snowmobile driver were essentially headed on a course of disaster unless one of them took action to avoid it and that the accident ultimately occurred because neither took timely evasive action. Anyone who has ever driven at night can appreciate that one must be able to see a pedestrian walking along the road in order to take evasive action, which may involve crossing over the centerline, in order to create a safe distance and avoid striking the pedestrian. If a person s vision is obstructed by blinding headlights, such that he cannot see hazards in the roadway, he would not know to take evasive action. The same proposition is true for a snowmobile driver. The relevant question in this case is whether plaintiff s injury was foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. See Kangas, 64 Mich App at 17. The parties in this case do not dispute that using one s headlights is considered a normal and necessary part of operating a vehicle at night. In fact, it is required by law. MCL (a); MCL It is also clear under Michigan law that using one s bright lights can obstruct the vision of others and cause an accident. For example, MCL (b) requires that [w]henever the driver of a vehicle approaches an oncoming vehicle within 500 feet, such driver shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the oncoming driver. In Knoor v Borr, 334 Mich 30; 53 NW2d 667 (1952), our Supreme Court determined that it was a question of fact for a jury whether, among other actions, the use of a vehicle s bright lights in the face of oncoming traffic, thereby interfering with the vision of an oncoming driver, was negligent and constituted a proximate cause of the ensuing accident. See also Spencer v Phillips & Taylor, 219 Mich 353; 189 NW 204 (1922). If the use of one s bright lights in the face of oncoming traffic is enough to be considered a proximate cause of an accident, it is surely enough to constitute the necessary causal connection required in MCL (1). It most certainly meets the almost any causal connection or relationship set forth in Shinabarger, 90 Mich at 314. As acknowledged by the majority, the no-fault act does not require proximate causation. See Boertmann v Cincinnati Ins Co, 291 Mich App 683; NW2d (2011), slip op at 3, lv gtd 490 Mich 887 (2011). Under Michigan law, the fact that the motor vehicle itself did not strike plaintiff does not bar plaintiff s claim. See id. at 5 ( To the extent that defendant is claiming that there must be physical contact between the claimant and the motor vehicle, caselaw... does not support the argument. ); Jones v Tronex Chem Corp, 129 Mich App 188, 194; 341 NW2d 469 (1983) ( The fact that the bus itself did not strike [the plaintiff] does not bar his claim. ); Bradley, 130 Mich App at 42 ( [A]ctual contact with the motor vehicle is not required. ). Indeed, the motor vehicle s failure to exert any physical force on the snowmobile does not require the conclusion of an insufficient causal connection. See Shinabarger, 90 Mich App at ( The term arising out of does not... require... that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. ). Where use of the [motor] vehicle is one of the causes of the injury, a sufficient causal connection is established even though there exists an independent cause. Id. at 313; see also Bradley, 130 Mich App at 42. Our decision in Jones, 129 Mich App at , is instructive as it illustrates that a sufficient causal connection may exist where a motor vehicle causes an instrumentality -3-

8 independent of the motor vehicle to injure a plaintiff, even when the character of the injury is bizarre and unexpected. In Jones, employees of a business that compounded liquid detergents flushed lye that had spilled into the business s parking lot down an ally and into a puddle near a bus stop. Id. at The plaintiff, who was standing at the bus stop, was severely injured when a bus drove through the puddle and splashed water with lye into the his eye. Id. at 191. This Court concluded that a sufficient causal connection existed between the plaintiff s injury and the use of the bus as a motor vehicle. Id. at We explained that it was eminently foreseeable that a bus, upon encountering a pool of water, may propel that water and whatever may be mixed with it in the direction of nearby pedestrians. Id. at The likelihood that the puddle of water would contain a caustic chemical [was] not relevant.... It is the manner in which the injury occurs that must be foreseeably identifiable with the normal use of the vehicle, not the quality of the injury. Id. at 193. This principal is also evident in the case of Gajewski v Auto-Owners Ins Co, 112 Mich App 59; 314 NW2d 799 (1981), rev d 414 Mich 968 (1982). In Gajewski, the plaintiff was severely injured when an explosive device attached to his motor vehicle by an unknown person detonated after the plaintiff turned the ignition key to start his vehicle. Gajewski, 112 Mich App at 60. A majority of this Court concluded that there was an insufficient causal relationship between [the] plaintiff s use of the vehicle and his injuries because [e]ven though [the] plaintiff s act of turning the ignition key detonated the explosion, the explosive device, rather than the automobile, was the true instrumentality of the injury. Id. at 62. Judge Cynar dissented, arguing that a sufficient causal connection existed. Id. at In lieu of granting leave to appeal, our Supreme Court reversed for the reasons stated in Judge Cynar s dissenting opinion. Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982). According to Judge Cynar, a sufficient causal relationship existed because the plaintiff s motor vehicle was more than merely the site of his injury and turning the ignition key could be identified with the normal manner of starting a vehicle. Gajewski, 112 Mich App at 63. Thus, a sufficient causal connection may exist when there is a cause of the injury that is independent of the motor vehicle; however, the fact that the vehicle is the site of the injury will not suffice to bring it within the policy coverage where the injury was entirely the result of an independent cause in no way related to the use of the vehicle. Shinabarger, 90 Mich App at 314. In this case, it cannot be said that either the snowmobiler operator s failure to observe plaintiff in time to avoid the collision or the actual collision of the snowmobile with plaintiff was an independent cause in no way related to the use of the [motor] vehicle. See id. The motor vehicle in the present case was more than merely the site of plaintiff s injury. See id. Like the lye in Jones and the explosive device in Gajewski, the normal operation of a motor vehicle caused an instrumentality independent of the motor vehicle to injure plaintiff. And, although the motor vehicle in the present case did not come into physical contact with the instrumentality as the motor vehicles did in both Gajewski and Jones, Michigan law does not require that the motor vehicle exert any physical force upon the instrumentality that was the immediate cause of the injury. Shinabarger, 90 Mich App at Contrary to the majority s conclusion, it does not matter whether the snowmobile operator s vision hypothetically could have been obstructed by something other than a motor vehicle. What matters is whether that which did blind him in this instance the bright lights of an oncoming motor vehicle driving on the road can be identified with the normal operation of a -4-

9 motor vehicle; it can. See Gajewski, 414 Mich at 968; Gajewski, 112 Mich App at 63; see also Bradley, 130 Mich App at The plaintiff in Bradley was riding a motorcycle in the far-left lane of a one-way street when he noticed a shadow ahead of him. Bradley, 130 Mich App at Upon seeing the shadow, the plaintiff wanted to move into the lane to his right, but a motor vehicle in the lane (driven by Harold Tefft) prevented the plaintiff from switching lanes. Id. at 39. The plaintiff ultimately ran into the back of a parked pickup truck in the far-left lane. Id. This Court concluded: [I]t could be arguably concluded that Bradley s injuries did not arise from the use of an automobile and that any object could have prevented him from switching lanes. Therefore, the fact that it was a motor vehicle was merely fortuitous. We believe, however, that a causal connection between the use of a motor vehicle and the plaintiff s injuries was established. * * * In the instant case,... the plaintiff was forced to temper his actions once he spotted the parked pickup truck in view of the fact that a car was in the lane to his immediate right. Tefft s vehicle was positioned next to the plaintiff because Tefft was proceeding in a manner foreseeably identifiable with the normal use of an automobile. * * * The normal use of a motor vehicle, i.e., driving side by side with another vehicle, caused the plaintiff to react.... Were Tefft s vehicle not in the position it was, the plaintiff would not have had to hesitate and look over his shoulder to see if he could switch lanes. And because Tefft s vehicle was proceeding normally through traffic, we do not feel it was fortuitous that the object which prevented the plaintiff from avoiding the accident was a motor vehicle. [Id. at (internal citations omitted).] In this case, the normal use of a motor vehicle, i.e., driving down the road with one s bright lights activated, obstructed the vision of the oncoming snowmobile driver, causing him to be unable to see and avoid hitting plaintiff. Accordingly, I would hold that plaintiff alleged sufficient facts in his complaint showing that his injury arose out of the operation or use of a motor vehicle as a motor vehicle. The trial court s order granting summary disposition for defendant under MCR 2.116(C)(8) should be reversed. /s/ Jane M. Beckering -5-