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### STATE OF MICHIGAN

COURT OF APPEALS

SPECTRUM HEALTH HOSPITALS,

Plaintiff-Appellant, UNPUBLISHED February 21, 2017

v No. 329907 Kent Circuit Court FARMERS INSURANCE EXCHANGE, LC No. 15-000926-AV

Defendant-Appellee.

Before: M URPHY , P.J., and S AWYER and S WARTZLE , JJ.

P ER C URIAM

. Plaintiff, Spectrum Health Hospitals, appeals by leave granted the circuit court’s reversal of the district court’s denial of defendant Farmers Insurance E xchange’s motion for a directed verdict. We affirm.

Tamra Wheeler was involved in a motor-vehicle accident in 1989 that caused various injuries to her lower extremities. Defendant stipulated that i t was the insurer responsible for Wheeler’s personal injury protec tion (PIP) benefits under the n o-fault insurance act, MCL 500.3101 et seq. , for expenses arising from the 1989 accident. Over the years, Wheeler underwent numerous surgeries and various medical treatments rel ated to the injuries she suffered in the accident. Defendant paid the expenses related to those treatments. She was prescribed devices such as a wheelchair and a modified van. However, evid ence shows that she was able to walk unaided for short distances. Dr. John Maskill testified a t deposition that he was an orthopedic surgeon and that he began treating Wheeler in 2010. He testified that the injuries she suffered in the 1989 accident rendered her left leg “like a pos t[,]” and that a fusion in her left ankle caused her legs to have differing lengths. This made her unstable and caused her to have difficulty walking on uneven surf aces. Dr. Maskill further tes tified that Wheeler took high levels of prescription pain medication due to her condition, and that she often appeared impaired because of the medication.

On April 5, 2013, Wheeler took her wheelchair outside to talk to her husband. She got out of her wheelchair, slipped on ice, and fractured her right ankle. Dr. Maskill concluded that Wheeler needed surgery as a resul t of the fracture, and he perf ormed the surgery on April 16,-2- 2013. 1 Plaintiff submitted bills and medical records related to the April 16, 2013 surgery to defendant. Plaintiff and defenda nt stipulated that plaintiff i ncurred charges of $17,300.57 by treating Wheeler in April 2013, and that these charges were rea sonable and customary. However, defendant refused to pa y the expenses based on the fac t that Wheeler’s April 2013 fracture was caused by the intervening event of her slipping on ice and, therefore, the 2013 fracture did not arise from the 1989 accident.

Plaintiff sued defendant in district court in December 2013, a lleging that defendant was liable for the expenses incurred in treating Wheeler for her Ap ril 2013 injury as well as for attorney fees under the no-fault insurance act. Dr. Maskill te stified at deposition on November 13, 2014, that Wheeler fell on April 5, 2013, for the following three reasons: (1) she was taking pain medication; (2) her left leg “has no ability to compensate ”; and (3) the disparity in the lengths of her legs were a “recip e for disaster.” He testified that Wheeler’s medical treatment for her injuries suffered from the fall “was related, 100 percent” to the 1989 accident. However, on cross-examination Dr. Maskill t estified that he did not witness Wheeler’s April 2013 fall. He did not know how much ice was in the area where she fell, and he di d not know whether the area was flat. At the beginning of the November 17, 2014 jury trial , defendant moved the district court to exclude Dr. Maskill’s deposition testimony. The distr ict court denied defendant’s motion, and a video of the deposition was played for the jury. After plaintiff rested, defendant moved the district court for a directed verdict, arguing that D r. Maskill’s testimony regarding the cause of Wheeler’s April 2013 fall was based on mere speculatio n, and that plaintiff failed to show a causal connection between the 1989 accident and Wheeler’ s April 2013 injury. The district court denied defendant ’s motion. The jury found that Wheeler’s April 5, 2013 accidental bodily injuries arose out of the ownershi p, operation, maintena nce, or use of a mot or vehicle, that allowable expenses were incurred on Wheeler’s behalf arising ou t of her April 2013 injuries, and that payment for those expenses to which plaintiff was entitled was overdue. On December 5, 2014, the district court entered a n order stating the jury’s fi ndings and ordering defendant to pay plaintiff medical charges and penalty interest totaling $20,303 .76. The order stated that “[t]his Order does not resolve the last pending claim and does not clos e this case.” Plaintiff moved the district court for entry of judgment on December 10, 2014, and on January 13, 2015, the district court entered a judgment of $20,303.76 for the medical charges plus penalty interest, costs of $1,670, and attorney fees of $35,027.

On January 30, 2015, defendant appealed to the circuit court, arguing that the circuit court should reverse the district court’s denial of defendant’s motion for a directed verdict and defendant’s motion to exclude Dr. Maskill’s testimony from evid ence at trial. The circuit court held that plaintiff failed to pre sent evidence to support a fin ding that Wheeler’s April 2013 injury arose from the 1989 accident. T he circuit court reversed the d istrict court’s denial of defendant’s motion for a directed verdict, and declined to address the issu e whether Dr. Maskill’s testimony was admissible. Plaintiff moved the circuit court for reconsid eration, arguing that because defendant appealed from the dist rict court’s January 13, 2015 o rder rather than the December 5, 2014 order, defendant’s appeal to the circuit court was not tim ely and, therefore, the circuit court

1 Evidence indicates that Dr. M askill was employed by plaintiff at the time of the surgery.-3- lacked jurisdiction over it. The circuit court concluded that the December 5, 2014 order was not a final judgment because it was not intended to resolve all of plaintiff’s claims. Rather, the December 5, 2014 order was merely a reflection of the jury’s ve rdict, and the January 13, 2015 order was the first order to dispose of the claims and adjudica te the rights of the parties. The circuit court further stated tha t plaintiff’s award of attorney fees was erroneous because defendant was not liable to plaintiff for PIP benefits. Plaint iff applied to this Court for leave to appeal the circuit court’s reversal of the district court’s den ial of defendant’s motion for a directed verdict, and this Court granted plaintiff’s applicatio n.

Plaintiff argues that the circuit court lacked subject-matter jurisdiction over defendant’s appeal because the appeal was untimely. “[A] party may challen ge the subject-matter jurisdiction of a c ourt at any time[,]” McFerren v B & B Investment Group , 233 Mich App 505, 512; 592 NW2d 782 (1999), and we review the issue de novo, Clohset v No Name Corp (On Remand) , 302 Mich App 550, 559; 840 NW2d 375 (2013).

“The circuit court has jurisdic tion of an appeal of right file d by an aggrieved party from . . . a final judgment or final order of a district or mun icipal court . . . .” MCR 7.103(A)(1). “The time limit for an appeal of right is jurisdictional.” MCR 7.104(A); see also Schlega v Detroit Bd of Zoning Appeals , 147 Mich App 79, 82; 382 NW2d 737 (1985). “An appeal of right to the circuit court must be taken within . . . 21 days o r the time allowed by statute after entry of the judgment, order, or decision appealed . . . .” MC R 7.104(A)(1). For purposes of MCR 7.103(A)(1), a final judgment is defined in MCR 7.202(6). MCR 7.102(8). MCR 7.202(6)(a)(i) states that in a ci vil case, a final judgment or a final order is “the first judgment or order that disposes of all the claims and adjudicates the right s and liabilities of all the parties, including such an order entered a fter reversal of an earlier fi nal judgment or order . . . .”

Count one of plaintiff’s complaint alleged that defendant was obligated to pay plaintiff the medical charges resulting from treating Wheeler’s injuries from the April 5, 2013 fall, and that defendant was obligated to pay plaintiff penalty interest and attorney fees under the no-fault insurance act. The district c ourt’s December 5, 2014 order sta ted that the parties stipulated that plaintiff incurred medical ch arges of $17,303.57, and that if t he jury found that payment of the charges was overdue, then plaintiff was entitled to the charges plus 12% penalty interest of $3,303.19. The order then enumerated the jury’s findings. The order stated that based on the parties’ stipulations and the jury’s verdict, “IT IS ORDERED th at Defendant pay Plaintiff its incurred medical charges and 12% penalty interest under MCL 500 .3142 [2] in the amount of $20,303.76.” The order further stated that “[t]his Order does not resolve the last pending claim and does not close the case.” On January 13, 2015, the distric t court entered an order titled “Order and Judgment,” ordering defendant to pay plaintiff $20,3 03.76 for medical charges and penalty interest, $1,670 for costs, and $35,027 for attorney fe es. The order stated that “[t]his judgment resolves the last pending claim and closes the case pu rsuant to MCR 2.602(A)(3).”

2 MCL 500.3142(3) states that overd ue PIP payments bear “simple interest at the rate of 12% per annum.”-4- We conclude that the December 5, 2014 order was not “the first judgment or order that dispose[d] of all the claims and adjudicate[d] the rights and l iabilities of all the parties . . . .” MCR 7.202(6)(a)(i). Although the December 5, 2014 order explic itly ordered defendant to pay plaintiff $20,303.76 in medical cha rges and penalty interest, i t did not dispose of plaintiff’s claim for attorney fees under the no-fault insurance act, which plain tiff explicitly alleged in count one of its complaint. Rather, the d istrict court did not dispose o f all of plaintiff’s claims until the January 13, 2015 order, when it rendered judgment with regard t o plaintiff’s claims for medical charges, costs, and attorney fees. The issue of attorney fees under the no-fault in surance act was part of plaintiff’s claim from the beginning of the case, and t he December 5, 2014 order explicitly stated that it was not a final order disposing of al l issues. Cf. Baitinger v Brisson , 230 Mich App 112, 115-116; 583 NW2d 481 (1998). Plaintiff correctl y asserts that the fact that the December 5, 2014 order stated that it was not a final order is not dispositive with regard to whether the order constituted a final order appealable as of ri ght. See, e.g., Botsford Continuing Care Corp v Intelistaf Healthcare, Inc , 292 Mich App 51, 61; 807 NW2d 354 (2011). And plaintiff further argues that t he December 5, 2014 order and th e January 13, 2015 order were two separate final orders, and defe ndant had to appeal each separat ely. However, as discussed above, the December 5, 2014 order did not in fact resolve all of the i ssues, whereas the January 13, 2015 order did resolve all issues. T herefore, we find that the Janu ary 13, 2015 order was the only final order from the district court in this case, and because defenda nt’s claim of appeal was submitted on January 30, 2015, which was fewer than 21 days from the orde r, defendant’s claim was timely. MCR 7.104(A)(1); MCR 7.202(6)(a)(i). In addition, bec ause defendant’s appeal from the January 13, 2015 order was timely, defendant was able to ap peal issues related to the December 5, 2014 order as well. See Bonner v Chicago Title Ins Co , 194 Mich App 462, 472; 487 NW2d 807 (1992).

Plaintiff next argues that the circuit court erred in holding that plaintiff failed to present evidence that Wheeler’s April 2013 injury arose from the 1989 a ccident and in reversing the district court’s denial of defenda nt’s motion for a directed ve rdict. We review a trial court’s decision on a directed verdict de novo. Aroma Wines & Equip, Inc v Columbian Distribution Servs, Inc , 497 Mich 337, 345; 871 NW2d 337 (2015). “A party is entitled to a directed verdict if the evidence, when viewed in the light most favorable to the nonmoving party, fails to establish a claim as a matter of law.” Id. This Court reviews a circuit court’s decision on an appeal from a district court’s decision de novo. First of America Bank v Thompson , 217 Mich App 581, 583; 552 NW2d 516 (1996).

The no-fault insurance act provides that “an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintena nce or use of a motor vehicle as a motor vehicle, subject to the provisions of” the act. MCL 500. 3105(1). “ ‘It is not any bodily injury that triggers an insurer’s liability under the no-fault act. Rather, it is only those injuries that are caused by the insured’s use of a motor vehicle.’ ” McPherson v McPherson , 493 Mich 294, 297; 831 NW2d 219 (2013), quoting Griffith v State Farm Mut Auto Ins Co , 472 Mich 521, 531; 697 NW2d 895 (2005). “Regarding the degree of causation b etween the injury and the use of the motor vehicle that must be shown, this Court has establi shed that 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 inci dental, fortuitous, or “but for.” ’ ”-5- McPherson , 493 Mich at 297, quoting Thornton v Allstate Ins Co , 425 Mich 643, 659; 391 NW2d 320 (1986).

Our Supreme Court analyzed this “arising out of” standard in M CL 500.3105(1) in McPherson . In that case, the plaintiff suffered injuries in a 2007 moto r vehicle accident that rendered him prone to seizures. Id. at 295. In 2008, while operating a motorcycle, he had a seizure that caused him to lose control of the motorcycle and c ollide with a parked automobile, breaking his spinal cord and leaving him paralyzed. Id. The plaintiff claimed PIP benefits, arguing “that he was entitled to no-fault benefits for the spin al cord injury as a result of the 2007 accident” rather than for the 2008 accident, “asserting that th e spinal cord injury ‘ar[ose] out of’ the 2007 accident for purposes of MCL 500.3105(1).” Id. at 295-296, 295 n 1. The trial court denied the defendant insurance company’s motion for partial sum mary disposition, and this Court affirmed. Id. at 296. However, our Suprem e Court concluded that

the causal connection between the 2008 spinal cord injury and t he 2007 accident is insufficient to satisfy the ‘ arising out of’ requirement of MCL 500.3105(1). Plaintiff did not injure his spin al cord while using the vehicl e in 2007. Rather, he injured it in the 2008 motorcycle crash, which was caused by hi s seizure, which was caused by his neurological disorder, which was caused by hi s 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 th e earlier use of a motor vehicle to permit a findi ng that the causal connection be tween the 2008 injury and the 2007 accident “is more than incidental, fortuito us, or ‘but for.’ ” [ Id. at 297-298, quoting Thornton , 425 Mich at 659.]

In other words, “[t]he facts alleged by plaintiff are insuffici ent to support a findi ng that the first injury caused the second injury in any direct way. Rather, the facts alleged by plaintiff only support a finding that the first injury directly caused the sec ond accident, which in turn caused the second injury.” McPherson , 493 Mich at 298-299.

In this case, Dr. Maskill’s testimony shows that Wheeler’s ank le fracture on April 5, 2013, was caused by her fall, which was caused by her instabili ty when walking, which was caused by the injuries she suffered from the 1989 accident. Ho wever, even when viewing the evidence “in the light most favorable to the nonmoving party,” Aroma Wines & Equip, Inc , 497 Mich at 345, i.e., plaintiff, we conclude that the “causal conn ection” between Wheeler’s 1989 injury and the April 2013 fall “is insufficient to satisfy the ‘arising out of’ requirement of MCL 500.3105(1).” McPherson , 493 Mich at 297. Wheeler fractured her ankle in 2013 because she fell on ice, which evidence show s was caused at least in part b y her inability to compensate when walking on ice, which was caused by the damage to her lower ext remities, which was caused by the 1989 accident. In other words, “the facts alleged by plain tiff only support a finding that the [1989] injury directly caused the [April 2013] accident , which in turn caused the second injury.” McPherson , 493 Mich at 298-299. Therefore, “the second injury alleged b y plaintiff is too attenuated from the first accident to permit a finding that the second injury was directly caused by the first accident.” Id. at 299. For this reason, the district court erred in denying d efendant’s motion for a directed verdict, and the circuit court properly r eversed the district court’s denial. See id.-6- Plaintiff relies on Scott v State Farm Mut Auto Ins Co , 278 Mich App 578; 751 NW2d 51 (2008), vacated in part by 482 Mich 1074 (2008), to support its argument that the evidence supported a finding that Wheeler’s 2013 injury arose from the 1 989 accident. In Scott , the defendant insurance company refu sed to pay PIP benefits for med ication that the plaintiff alleged was necessitated by high cholesterol that she suffered as a res ult of a motor-vehicle accident. Id. at 579-581. As our Supreme Court stated in McPherson , the issue in Scott “was whether the evidence was sufficient to support a finding that the first injury caused the second injury in a direct way.” McPherson , 493 Mich at 298. In contrast, the plaintiff in McPherson claimed that his 2008 injury “occurred as a result of the neurological disor der from the first accident in combination with the intervening motorcycle accident.” Id. As discussed above, that causal connection could not support a fi nding that the plaintiff’s 200 8 injury arose from the 2007 accident. Id. at 298-299. Likewise, Wheele r’s April 2013 injury resulted fr om the “intervening [slip and fall] accident” rather than being a direct result of the 1989 accident. Therefore, Scott is distinguishable from this cas e and does not support plaintiff’s argument. Id.

Plaintiff also argues that Wheeler’s April 2013 injury arose f rom the 1989 accident not because the April 2013 injury was caused by the 1989 accident, but because the 1989 accident rendered her unable to compensate when she fell in April 2013, which caused her injuries from the April 2013 fall to be more sev ere than they otherwise wouldhave been. We fail to see the relevance of this argument. As discussed above, defendant is o nly liable for PIP benefits resulting from the 2013 injury if the injury arose from the 198 9 accident. MCL 500.3105(1). And for the reasons discussed above, under the standard set for th by our Supreme Court in McPherson , 493 Mich at 297-299, the evidence cannot support a finding th at Wheeler’s April 2013 fracture arose from the 1989 accident.

Plaintiff argues that the circuit court erred in reversing the district court’s award of attorney fees. We review a trial court’s decision on whether t o award attorney fees for an abuse of discretion. Brown v Home-Owners Ins Co , 298 Mich App 678, 689-690; 828 NW2d 400 (2012). PIP benefits “are overdue if not paid within 30 days a fter an insurer receives reasonable proof of the fact and of the amo unt of loss sustained.” MCL 50 0.3142(2). The no-fault insurance act further states that

[a]n attorney is entitled to a r easonable fee for advising and representing a claimant in an action for personal or property protection insur ance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unr easonably refused to pay the claim or unreasonably dela yed in making proper payment. [MCL 500.3148(1).]

However, “if an insurer does not owe benefits, then benefits ca nnot be overdue.” Moore v Secura Ins , 482 Mich 507, 526; 759 NW2d 833 (2008). Put differently, it is impossible for an insurer to unreasonably refuse t o pay benefits if the insurer i s later deemed to not be liable for the benefits. Id.

As discussed above, the circuit court properly reversed the di strict court’s denial of defendant’s motion for a directed verdict because plaintiff fai led to prove that Wheeler’s April 2013 injury arose out of the 1989 accident. Because plaintiff failed to prove that Wheeler’s-7- April 2013 injury arose out of the 1989 accident, defendant was not liable to pay PIP benefits for expenses resulting from the April 2013 injury. MCL 500.3105(1) . Because defendant did not owe PIP benefits, the benefits were not overdue. Moore , 482 Mich at 526. Therefore, defendant was not obligated to pay defendant attorney fees under MCL 500. 3148(1), and the district court abused its discretion in holding otherwise. Moore , 482 Mich at 517; Brown , 298 Mich App at 690.

In addition, plaintiff urges this Court to address the admissi bility of Dr. Maskill’s testimony. However, this issue is moot because the district co urt admitted the testimony and the circuit court did not address th e issue, and we decline the inv itation to address it. See City of Warren v Detroit , 261 Mich App 165, 166 n 1; 680 NW2d 57 (2004).

Affirmed.

/s/ William B. Murphy /s/ David H. Sawyer /s/ Brock A. Swartzle