McPHERSON v McPHERSON Docket No. 144666. Argued January 10, 2013. Decided April 11, 2013. Ian McPherson brought an action in the Oa kland Circuit Court against Christopher McPherson, Progressive Michigan Insurance Company, and others , seeking payment of personal protection insurance benefits under the no-fault act, MCL 500.3101 et seq . Plaintiff developed a neurological disorder as a result of injuries sustained in a 2007 motor vehicle accident while he was a passenger in a vehicle driven by Christ opher McPherson. Subsequently, in 2008, while driving a motorcycle, he experienced a seizure cons istent with that disorder, lost control of the motorcycle, crashed into a parked car, and sustaine d a severe spinal cord injury that left him quadriplegic. Plaintiff claimed entitlement to no-fault benefits for the spinal cord injury, asserting that the 2008 spinal cord injury ar ose out of the 2007 accident for purposes of MCL 500.3105(1). Progressive moved for partial summary disposition. The court, Rae Lee Chabot, J., denied the motion. On leave granted, the Court of Appeals, M ETER and G LEICHER , JJ. (K. F. K ELLY , P.J., dissenting), affirmed in an unpublishe d opinion per curiam, issued January 10, 2012 (Docket No. 299618). Progressive a pplied for leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 493 Mich 853 (2012). In a memorandum opinion signed by Chief Justice Y OUNG and Justices M ARKMAN , M ARY B ETH K ELLY , Z AHRA , and M C C ORMACK , the Supreme Court held : Under MCL 500.3105(1), a provider of personal prot ection insurance benefits 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. An inju ry 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 incident al, fortuitous, or “but for.” Gi ven that plaintiff’s spinal cord was injured in the 2008 motorcycle crash, which was caused by his seizure, which was caused by his neurological disorder, which was caused by his use of a motor vehicle as a motor vehicle in 2007, the spinal cord injury was simply too remote and too attenuated fro m the earlier use of a motor vehicle to permit a finding that the cau sal connection between the 2008 injury and the 2007 accident was more than incidental, fortuitous, or “but for.” The facts alleged by plaintiff were insufficient to support a finding that the first injury caused the second injury in any direct way. Absent the intervening motorcycle accident, plaintiff’s spinal cord injury would not have occurred as a direct re sult of the neurological disorder. The trial court erred by failing to grant Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano This syllabus constitutes no part of th e opinion of the Court but has been prepared by the Reporter of Decision s for the convenience of the reader. Reporter of Decisions: John O. Juroszeksummary disposition in favor of Progressive, and the Court of Appeals erred by affirming that decision. Court of Appeals’ judgment reversed; case remanded for entr y of summary disposition in favor of Progressive.

Justice C AVANAGH , dissenting, would not have granted summary disposition in favor of Progressive. Because it is undisputed that Prog ressive is responsible for first party no-fault benefits related to the 2007 motor vehicle acci dent and plaintiff’s phys ician attributed the symptoms that plaintiff experienced in 2008 to the disorder that arose out of the 2007 motor vehicle accident, plaintiff’s fall during his 2008 seiz ure was not an intervening cause. Rather, it was an inextricable aspect of hi s seizure disorder, and any injuri es sustained during the loss of consciousness and fall in 2008 arose out of th e 2007 motor vehicle acci dent that caused the seizure disorder.

Justice V IVIANO took no part in the decision of this case.

©2013 State of MichiganFILED APRIL 11, 2013

S T A T E O F M I C H I G A N

SUPREME COURT

IAN McPHERSON, Plaintiff-Appellee,

v No. 144666

CHRISTOPHER McPHERSON and AAA AUTO CLUB GROUP INSURANCE COMPANY, Defendants, and

PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant/Cross-Plaintiff- Appellant, and

AUTO CLUB INSURANCE ASSOCIATION, MEMBERSELECT INSURANCE COMPANY, and AUTO CLUB INSURANCE COMPANY, Defendants/Cross-Defendants.

BEFORE THE ENTIRE BENCH (except V IVIANO , J.)

M EMORANDUM O PINION

. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano2 Plaintiff developed a neurological disorder as a result of inju ries sustained in a 2007 motor vehicle accident. Subsequently , in 2008, while driving a motorcycle, he experienced a seizure consistent with that disorder, lost contro l of the motorcycle, crashed into a parked car, and sustained a se vere spinal cord in jury that left him quadriplegic. Plaintiff did not assert that he was entitled to no-fault benefits for the spinal cord injury as a result of the 2008 crash. 1 Rather, he claimed that he was entitled to nofault benefits for the spinal co rd injury as a result of the 2007 accident, asserting that the spinal cord injury “ar[ose] out of” the 2007 accident for pu rposes of MCL 500.3105(1). Defendant Progressive Michigan Insurance Company moved unsucce ssfully for partial summary disposition in the trial court, an d the Court of Appeals affirmed on leave granted. 2 We ordered and heard oral argumen t on whether to grant Progressive’s application for leave to appeal or take other peremptory action. 3 Given that there is no dispute regarding the material facts and that the parties agree

that the 2007 accident involved the use of a motor vehicle as a motor vehicle and that

1 Plaintiff apparently anticipat ed that he could not recover no-fault benefits from the 2008 crash because a motorcycle is not a “motor vehicle” for purposes of the no-fault act, MCL 500.3101(2)(e), and none of the excepti ons that allow recovery in an accident involving a parked motor vehicle se em applicable, see MCL 500.3106.

2 McPherson v McPherson , unpublished opinion per curiam of the Court of Appeals, issued January 10, 2012 (Doc ket No. 299618). Progressive argued below that plaintiff could not recover first-party no-fault benefits because he had no insurance for his motorcycle. This was the basis for a C ourt of Appeals dissent. Progressive now concedes that there was, in fact, insuranc e for the motorcycle and has abandoned this argument.

3 McPherson v McPherson , 493 Mich 853 (2012).3 plaintiff is entitled to personal protection insurance (PIP) benef its from Progessive for all injuries “arising out of” that accident, incl uding the neurological disorder, the only question here is whether the spinal cord injury plaintiff suffered in the 2008 crash “ar[ose] out of” the 2007 accident for purposes of MCL 500.3105(1). Pursuant to MCL 500.3105(1), a PIP pr ovider is liable “to pay benefits for accidental bodily injury arisi ng out of the ownership, operatio n, maintenance or use of a

motor vehicle as a motor vehicle . . . .” In Griffith v State Farm Mut Auto Ins Co , 472 Mich 521, 531 (2005), this Court explained this causal requirement: [A]n insurer is liable to pay benefits for accidental bodily injury only if those injuries “aris[e] out of” or are caused by “the ownership, operation, maintenance or use of a motor vehicle . . . .” It is not any bodily injury that triggers an insurer’s liab ility under the no-fault act. Rather, it is only those injuries that are caused by the insu red’s use of a motor vehicle. Regarding the degree of causa tion between the injury and th e use of the motor vehicle that must be shown, this Court has establishe d that an injury arises out of the use of a

motor vehicle as a motor vehicl e when “the causal connecti on 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 (1986). In this case, the causal connection betwee n the 2008 spinal co rd injury and the 2007 accident is insufficient to satisfy the “arising out of” requirement of MCL 500.3105(1). 4 Plaintiff did not injure his spinal cord while using the vehicle in 2007.

4 Plaintiff’s focus on the “causal genesis” of the injury is partic ularly misplaced. The question under Thorton is not whether the use of a mo tor vehicle constitutes the “causal genesis” of an injury, but whether the causal connection between the injury and the use of4 Rather, he injured it in the 2008 motorcycle crash, which was caused by his seizure, which was caused by his neurological disord er, which was caused by his use of a motor

vehicle as a motor vehicle in 2007. Under th ese circumstances, we believe that the 2008 injury is simply too remote and too attenuated from the ear lier use of a motor vehicle to permit a finding that the causa l connection between the 2008 injury and the 2007 accident “is more than incidental, fortuitous, or ‘but for.’” Thornton , 425 Mich at 659. 5 We reject plaintiff’s argument that Scott v State Farm Mut Auto Ins Co , 278 Mich App 578; 751 NW2d 51 (2008), is relevant to th is case. The Court of Appeals held in

Scott that summary disposition was premature be cause the plaintiff had raised a genuine

issue of material fact whether her hyperlipidemia occurred as a direct result of an injury

she had received in an automobile accident or was attributable to other factors. That is,

the issue was whether the evidence was suffi cient to support a finding that the first injury

caused the second injury in a direct way. In this case, plaintiff claims as fact that his

a motor vehicle as a motor vehicl e is more than incidental, fort uitous, or “but for.” This not only requires that the moto r vehicle be used “as a motor vehicle” in the incident that gives rise to the injury, but al so that the accidental bodily injury “aris[e] out of” that vehicular use.

5 The dissent erroneously focuses on the ex istence of a causal connection between the “seizure” and the “fall,” rath er than on the causal connec tion between the 2008 spinal cord injury and the 2007 accident. Post at 4 (“Because plaintiff’s fall was an inextricable aspect of his seizure, I believe that plai ntiff can satisfy MCL 50 0.3105(1).”). 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 ca me 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 [p laintiff’s] seizure disorder” as well. Post at 4-5 (emphasis added). Indeed, had plain tiff been in bed or on the couch when he had the seizure, the “inextricable” injury would not have occurred.5 spinal cord injury occurred as a result of the neurologi cal disorder from the first accident

in combination with the intervening motorcycle accident. The facts alleged by plaintiff are insufficient to support a finding that the first injury caused the second injury in any direct way. Rather, the fact s alleged by plaintiff only sup port a finding that the first injury directly caused the second accident , which in turn caused the second injury. Thus, the second injury alleged by plaintiff is too attenuated from the first accident to permit a finding that the second injury was directly caused by the fi rst accident. Though we are troubled by Scott ’s use of a causal-connection standa rd this Court has never recognized— that “[a]lmost any caus al connection will do,” id. at 586—it is nonetheless clearly distinguishable from this case because plai ntiff admits that, ab sent the intervening motorcycle accident, his spinal cord injury would no t have occurred as a direct result of the neurological disorder. Because plaintiff’s spinal co rd injury had only this lim ited causal connection to the use of a motor vehicle in 2007, the injury di d not arise out of the use of a motor vehicle for purposes of MCL 500.3105(1). Accordingl y, the trial court erred by failing to grant Progressive summary disposition on that basis, and the Court of Appeals erred by affirming that decision. In lieu of granting Progressive’s application for leave to appeal, we reverse the judgment of the Court of Appeals and remand for entry of summary disposition in favor of Progressive. Robert P. Young, Jr. Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormackS T A T E O F M I C H I G A N

SUPREME COURT

IAN McPHERSON, Plaintiff-Appellee,

v No. 144666

CHRISTOPHER McPHERSON and AAA AUTO CLUB GROUP INSURANCE COMPANY, Defendants,

and

PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant/Cross-PlaintiffAppellant,

and

AUTO CLUB INSURANCE ASSOCIATION, MEMBERSELECT INSURANCE COMPANY, and AUTO CLUB INSURANCE COMPANY, Defendants/Cross-Defendants.

C AVANAGH , J. ( dissenting ). I respectfully dissent because I believe th at plaintiff is able to satisfy the requirement in MCL 500.3105(1) that his 20 08 injuries “ar[ose] out of” his 2007 motor
vehicle accident.2 As the majority explains, there is no disp ute that plaintiff’s 2007 accident involved
the use of a motor vehicle as a motor vehicle and that Pr ogressive Michigan Insurance Company is statutorily obligated under MCL 500.3105(1) to provide personal protection insurance (PIP) benefits for all injuries “arising out of” th at accident, including plaintiff’s
seizure disorder. This Court has explained that coverage under MCL 500.3105(1) is available “only
where the causal connection betw een 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). Th us, the motor vehicle must be the “instrumentality” of the injury. Id . at 660.
Thornton ’s application is relatively straig htforward when faced with an acute injury. For example, if an insured suffers a broken ar m while involved in a motor vehicle accident, it is clear that th e motor vehicle was the instrumentality of the broken arm because that injury occurred at the moment of the accide nt. Accordingly, the causal connection between the broken arm and the use of a motor vehicle as a motor vehicle is more than incidental, fo rtuitous, or “but for.” Although slightly more difficult, applying Thornton ’s logic to some chronic injuries is also fairly straight forward. For example, if an insured suffer ed a kidney injury in a motor vehicle accident and, after a pe riod of time, required a kidney transplant because of the continuing dete rioration of the kidne y, it is clear that the need for the transplant, although separated from the accide nt by time, would nevertheless constitute a progression of the injury that occurred in the accident. Accordingly, the causal3 connection between the n eed for the kidney transplant and the use of the motor vehicle as
a motor vehicle would be more than in cidental, fortuitous, or “but for.” This case, however, presents a difficu lt issue because of the chronic, yet intermittent, nature of th e injury that plaintiff suffered in the 2007 motor vehicle accident. Accordingly, in order to properly apply Thornton and MCL 500.3105(1), it is necessary
to understand the nature of a seizure disorder. According to his physician, shortly afte r the 2007 accident plaintiff suffered a grand mal seizure. The physic ian testified that “posttraumatic seizure can happen at any time. You can have head trauma today, you can have a seizure fro m posttrauma [sic] two days later, you can have it a year later, you can have it the rest of your life.” According to the Mayo Clinic, grand mal seizures ha ve two phases—tonic an d clonic—that exhibit different symptoms. In the tonic phase, “[l] oss of consciousness occurs, and the muscles suddenly contract and cause the person to fall down .” Mayo Clinic, Grand Mal Seizure <http://www.mayoclinic.com/health/g rand-mal-seizure/D S00222/DSECTION= symptoms> (accessed April 2, 2013) (emphasis added). In the clonic phase, “[t]he muscles go into rhythmic contractions, alte rnately flexing and relaxing. Convulsions usually last for less than two minutes.” Id. Thus, a person with a seizure disorder ma y go long periods with out exhibiting any signs of the disorder. Howe ver, even during th ose nonsymptomatic periods, the person nevertheless has a seizure disorder, and in pl aintiff’s case, the seiz ure disorder arose out of the use of a motor vehicle as a motor vehicle. Unlike an insured with a kidney injury whose condition consistently and predictably worsens over time, plai ntiff’s injury has resulted in sudden, unpredictable sympto matic episodes. And during those sudden4 symptomatic episodes, plaintiff’s seizure di sorder causes him to unexpectedly lose
consciousness and muscle control and fall down. As the majority’s analysis demonstrates, the intermittent nature of plaintiff’s
seizure disorder lends itself to the conclusion that any subsequent inju ry is caused by an intervening accident rather th an the seizure disorder itsel f. Specifically, the majority focuses on the activity that plaintiff was engaged in wh en he suffered the 2008 seizure and concludes that the motorcycle accident was an intervening event that caused plaintiff’s 2008 injury . However, once the nature of a seizure disorder is properly understood, I believe the majority’s analysis is incorrect. Plaintiff’s fall during his 2008 seizure was not an intervening cause; rather, it was an inextricable aspect of his seizure disorder, and any injuries sustained during th e loss of consciousness and fall arose out of the motor vehicle accident that caused the seizure disorder. Si mply put, loss of consciousness and falling down is part of a seiz ure. While I agree that the severity of the person’s injuries may be exacerbated depending on what the person is doing at the time of a seizure, that does not change the fact that a seizure disorder caused the person to unexpectedly fall and suffer an injury. Stated di fferently, plaintiff’s seizure disorder cannot be separated from his 2008 fall and atte ndant injuries in any meaningful way. Because plaintiff’s fall was an inextricable as pect of his seizure, I believe that plaintiff can satisfy MCL 500.3105(1). In summary, I think that the 2007 motor vehicle accide nt bore more than an incidental, fortuitous, or “but for” conn ection to plaintiff’s 2008 injuries because plaintiff’s 2008 injuries are di rectly related to the seizure di sorder, i.e., the 2008 injuries5 were an inextricable result of his seizure disorder. Accordingl y, I dissent from the majority’s decision to grant summary disposition in favor of Progressive.

Michael F. Cavanagh

V IVIANO , J., took no part in the decision of this case.