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### STATE OF MICHIGAN

COURT OF APPEALS

KENNETH W. CONNERS,

Plaintiff-Appellant, UNPUBLISHED October 6, 2016

v No. 326465 Kalamazoo Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 2013-000495-NF

Defendant-Appellee.

BRONSON HEALTH CARE GROUP INC., d/b/a BRONSON METHODIST HOSPITAL,

Plaintiff-Appellant,

v No. 326480 Kalamazoo Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 2014-000117-NF

Defendant-Appellee.

Before: S TEPHENS , P.J., and B ECKERING and G LEICHER , JJ.

P ER C URIAM

. In these consolidated appeals, plaintiffs appeal as of right t he trial court order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of de fendant on plaintiffs’ claims for personal protection insurance (“PIP”) benefits under the no -fault act, MCL 500.3101 et seq

. We affirm in part, reverse in part , and remand for further proc eedings.

Plaintiff Kenneth W. Conners, a pedestrian, was struck by a mo tor vehicle on October 25, 2012. He was taken by ambulance t o plaintiff Bronson Methodist Hospital (“Bronson”). He was diagnosed and treated for a right intertrochanteric hip fractur e. Defendant paid PIP benefits for this initial treatment, which is not at issue on appeal. After his initial hospital stay, however, Conners required additional medi cal treatment for which he and Bronson now seek further PIP benefits. The trial court granted summary disposition in favor of defendant, ruling that plaintiffs-2- could not establish that the separate injuries for which they s ought further PIP benefits arose out of the October 25, 2012 accident, as required under MCL 500.310 5(1).

This Court reviews de novo a tria l court’s grant of summary di sposition under MCR 2.116(C)(10). Ernsting v Ave Maria College , 274 Mich App 506, 509; 736 NW2d 574 (2007). “When deciding a motion for summary disposition under MCR 2.116 (C)(10), a court must consider the pleadings, affidavits, depositions, admissions, an d other documentary evidence submitted in the light most favorable to the nonmoving party.” Id . at 509. “Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence shows that there is no genuine issue regarding any material fact and the moving par ty is entitled to judgment as a matter of law.” Id . at 509-510. “A genuine issue of material fact exists when th e record, giving the benefit of any reasonable doub t to the opposing party, leav es open an issue upon which reasonable minds could differ.” Id . at 510.

Pursuant to MCL 500.3105(1), a no-fault insurer is liable “to pay [PIP] benefits for accidental bodily injury arising out of the ownership, operatio n, maintenance or use of a motor vehicle as a motor vehicle . . . .” There is no dispute that t he October 25, 2012 motor vehicle accident was the result of the “use of a motor vehicle as a mot or vehicle.” Thus, the question is whether Conners’s injuries at i ssue in these appeals arose out of the accident. 1

As observed in McPherson v McPherson , 493 Mich 294, 297; 831 NW2d 219 (2013):

Regarding the degree of causation between the injury and the u se of a motor vehicle that must be shown, this Court has established th at 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 ve hicle is more than incidental, fortuitous, or ‘but for.’ ” [Quoting Thornton v Allstate Ins Co , 425 Mich 643, 659; 391 NW2d 320 (1986).]

The trial court erred in granting summary disposition to defen dant on plaintiffs’ claims for PIP benefits for medical expe nses incurred in treating the nonunion of Conners’s intertrochanteric fracture.

At least for the purposes of this appeal, there is no dispute that the intertrochanteric fracture arose out of the October 25, 2012 motor vehicle accide nt. Indeed, defendant has already paid PIP benefits for Conners’s i nitial treatment. The trial c ourt treated the nonunion as a separate injury from the intertr ochanteric fracture, which it f ound was caused by Conners’s noncompliance with treatment r ecommendations. This ruling was in error for two reasons.

1 We find no merit in Conners’s c laim that the trial court shoul d have first analyzed his claims under MCL 500.3107 before analyzing the threshold inquiry requi red by MCL 500.3105(1). See, e.g., Griffith ex rel Griffith v State Farm Mut Auto Ins Co , 472 Mich 521, 526-527; 697 NW2d 895 (2005) (emphasis added) (holding that a no-fault insur er is only required to pay PIP benefits for injuries arising out of an automobile accident and that the requirements of MCL 500.3107 are “ in addition to the requirement under MCL 500.3105(1)[.]”).-3- First, the nonunion was simply the failure of Conners’s intert rochanteric fracture (which arose from the accident) to heal properly. The intertrochanter ic fracture was an accidental bodily injury arising out of a motor vehicle accident under MCL 500.31 05(1). Thus, the “revision” surgery for that fracture was si mply further treatment of the i nitial injury.

Second, even if the nonunion of the intertrochanteric fracture is treated as an independent, subsequent injury, plaintiffs have presented suffi cient evidence to establish a question of fact whether its causal connection to the accident was more than incidental, fortuitous, or but for. In McPherson , 493 Mich at 298, the Supreme Court ruled that, if a plaintiff presents evidence su fficient to support a finding tha t the first injury caused the second injury in a direct way, summary disposition is inappropriate. Such is the case here. There is evidence in the record from which it may be inferred that the n onunion was the failure of Conners’s intertrochanteric fract ure to reunite properly. Abse nt the intertrochanteric fracture, there was no possibility of a nonunion—Conners’s bone would hav e still been in one piece. The failure of this injury to heal is a direct result of the first injury. Unlike in McPherson , there is no evidence that the intertrochan teric fracture caused Conners to suffer a malady, which in turn caused another motor vehicle accident, which in turn resulted i n the nonunion. Defendant points to evidence that Conners’s noncom pliance with treatment recomme ndations may have slowed the healing of the intertrochant eric fracture and contributed t o the nonunion. However, plaintiffs are not required to establish that the motor vehicle accident w as the only, or even proximate, cause of the nonunion. Scott v State Farm Mut Auto Ins Co , 278 Mich App 578, 586-587; 751 NW2d 51 (2008). Rather, they need only establish a causal conn ection to the accident that was more than incidental, fortuitous, or but for. McPherson , 493 Mich at 297. Viewed in the light most favorable to plaintiffs, ev idence of such a causal connect ion exists because the “first injury” (the intertrochanteric fracture) caused the “second injury” (th e nonunion) in a direct way. Accordingly, plaintiffs presented sufficient evidence to suppor t a finding by a trier of fact that the nonunion of Conners’s intertroc hanteric fracture arose out of the October 25, 2012 motor vehicle accident. Thus, the tria l court erred in granting summ ary disposition in favor of defendant as to the nonunion of t he intertrochanteric fracture. Ernsting , 274 Mich App at 509- 510.

The trial court also erred in granting summary disposition in favor of defendant on the grounds that plaintiffs could not establish a question of fact whether Conners’s greater trochanter fracture, and its subsequent nonunion, arose from the October 2 5, 2012 motor vehicle accident. Defendant raised this issue in its brief in support of its moti on for partial summary disposition. The court however, erred in deciding the issue because plaintif fs did not plea, nor argue, for PIP benefits related to this injury.

The trial court also erred in granting summary disposition in favor of defendant on plaintiffs’ claims for PIP ben efits related to Conners’s altere d mental status (“AMS”) and fever suffered after his June 13, 2013 revision surgery.

Plaintiffs present evidence sufficient to establish a question of fact whether the causal connection between the motor vehicle accident and Conners’s AMS and fever was more than incidental, fortuitous, or but f or. Plaintiffs argue that the AMS and fever were the results of an adverse reaction to drugs given to Conners before and during th e revision surgery, particularly Ativan. Viewing the evidence in the light most favorable to pl aintiffs, but for the motor vehicle-4- accident, Conners would not have suffered the intertrochanteric fracture, which would have not failed to heal, which would not have required the revision surg ery, which would not have required Conners taking Ativan, which would not have caused Con ners’s AMS and fever. Thus, assuming plaintiffs’ contention that the medication caused Conn ers’s AMS and fever is true, a question of fact exists regardi ng but-for causation. Despite d efendant’s argument to the contrary, the causal connection between the motor vehicle accident and Co nners’s AMS and fever is not too attenuated to satisfy the “arising out of” requirement of M CL 500.3105(1). Viewing the evidence in the light most favorable to, and as advocated by, p laintiffs, Conners’s AMS and fever were direct results of the medication being used in an at tempt to ameliorate Conner’s “intermittent agitation” caused by medication and to return him to his pre-existing “baseline agitation.” There is evidence in the record to suggest that th is “intermittent agitation” was an aggravation of his “baseline agit ation” which arose from surger ies that in turn arose from the October 25, 2012 motor vehicle ac cident. Viewing the evidence and the inferences drawn therefrom in the light most favorable to plaintiffs, Conners’s AMS and fever were caused by medication that was being used to treat an injury that arose fr om the motor vehicle accident. Accordingly, the trial court erre d in granting summary disposit ion to defendant on plaintiffs’ claims for PIP benefits related to the treatment of Conners’s A MS and fever suffered after the June 13, 2013 revision surgery. Ernsting , 274 Mich App at 509-510.

The trial court did not err however, in ruling that plaintiffs failed to present evidence sufficient to establish a questi on of fact whether the second g reater trochanter fracture, the subcapital fracture, and Conne rs’s foot pain a rose out of the m otor vehicle accident.

There is simply no evidence in t he record to support that thes e three injuries bore a causal connection to the October 25, 2012 motor vehicle accident that was more than incidental, fortuitous, or but for. Indeed, there is no evidence to sugges t that Conners would not have suffered these injuries but for the motor vehicle accident, or to suggest any causal relationship between these injuries and the accident, or the intertrochanter ic fracture, or its subsequent nonunion. If there is no evidence to support even but-for caus ation, there can b e no evidence, even when viewed in the light most favorable to plaintiffs, to support a causal connection of more than but-for, as required. A ccordingly, to the extent pla intiffs seek PIP benefits for the second greater trochanter fractur e, the subcapital fracture, or Conners’s foot pain, the trial court did not err in granting summary disposition in favor of defenda nts. Ernsting , 274 Mich App at 509-510.

Conners last argues that the trial court erred in denying his second motion for reconsideration. Given our dispos ition to reverse in part the trial court’s grant of summary disposition to defendant regardi ng plaintiffs’ claims for PIP b enefits related to the nonunion of Conners’s intertrochanteric fracture, AMS and fever, we need no t address the issue raised by Conners in his second motion for reconsideration. In all other aspects, the trial court’s grant of summary disposition in favor of defendant is affirmed.

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Cynthia Diane Stephens /s/ Jane M. Beckering