Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
J ustices 

# Order

June 5, 2009

136502(48)

PHYLLIS SCOTT, as Co-Guardian and Co-Conservator, DONALD SCOTT as Co-Guardian, and JOHN PFEFFER as Co-Conservator of the Estate of Kristen Krohn, an incapacitated individual, Plaintiffs-Appellees,

v SC: 136502 COA: 276544 Ingham CC: 06-001595-AV Ingham PC: 05-001295-CZ STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, th e motion for reconsideration of this Court’s December 3, 2008 order is considered, and it is GR ANTED. We VACATE our order dated December 3, 2008. On reconsideration, the a pplication for leave to appeal the April 15, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presente d should be reviewed by this Court.

K ELLY , C.J. ( concurring ).

I concur in this Court’s order granting reconsideration and vacating our December 3, 2008 order. 1 Our prior order improperly vacated the portion of the Court of Appeals opinion stating that “[a] lmost any causal connection or relationship will do.” 2

This case involves an in terlocutory appeal by defe ndant, State Farm Mutual Automobile Insurance Company, from the probate court’s denial of summary disposition.

1 482 Mich 1074 (2008).

2 Scott v State Farm Mut Automobile Ins Co, 278 Mich App 578, 586 (2008) (citations and quotation marks deleted).2

Plaintiff’s claim was made u nder the no-fault insurance act, 3 and the issue on appeal is the level of causation required to support a claim under the act.

Plaintiff was injured in an automobile accident in 1981 that left her impaired and legally incapacitated. Because of skeletal and brain trauma from the accident, she has
been unable to lead a normal active life and, as a result, has gained some 80 pounds. 4
This, in turn, has caused her cholesterol to skyrocket, ca using hyperlipidemia. She now requires medication to control it. Defendant State Farm originally paid for plaintiff’s medication, but has since terminated her benefits. 5 Plaintiff sued to reinstate the benefits,
and when State Farm moved to dismiss her claim, the probate court denied the motion. The circuit court denied leave to appeal, an d the Court of Appeals affirmed the probate court’s decision in a published opinion per curiam. 6

Previously, this Court partially vacated the Court of Appeals judgment. In so doing, the Court ignored a line of Michigan caselaw that has existed and been followed
since 1979. It concerns the threshold leve l of causation a plaintiff must establish to proceed in no-fault cases. Current law holds that evidence establishing “almost any
causal connection or relationship will do,” 7 as the Court of Appeals indicated. The causal
connection must also be “more than incidental, fortuitous or ‘but for.’” 8

Contrary to the dissent’s conclusion, th e Court of Appeals co rrectly followed and applied the law. As the Court of Appeals held in Kangas v Aetna Casualty & Surety Co,
“while the automobile need not be the proximate cause of the injury, ther e still must be a
causal connection between the in jury sustained and the owners hip, maintenance or use of
the automobile and which causal connection is more than incidental, fortuitous or but for .” 9

Four years later, the Court of Appeals, in Shinabarger v Citizens Mut Ins Co

, again examined the causation elemen t of no-fault insurance claims:

3 MCL 500.3101 et seq

.

4 She weighed 120 pounds before the accident.

5 State Farm’s own independent medical ex aminer acknowledged a causal link between plaintiff’s hyperlipidemia and the automobile accident.

6 Scott, supra

.

7 Bradley v Detroit Automo bile Inter-Ins Exch, 130 Mich App 34, 42 (1983) (citation and quotation marks deleted).

8 Thorton v Allstate Ins Co, 425 Mich 643, 659 (1986).

9 Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17 (1975) (emphasis added).3

The term “arising out of” does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle . . . . [ A ] lmost any causal connection or relationship will do . . . . [T]he injury ne ed not be the proximate result of “use” in the strict sense, but it cannot be extended to something distinctly remote. Each case turns on its precise individual facts. The question to be answered is whether the injury “originated from”, “had its origin in”, “grew out of”, or “f lowed from” the use of the vehicle. [Citations and quotation mark s deleted; emphasis added.] [10]

In 1983, in Bradley, the Court of Appeals repeated the language from Shinabarger , stating that “almost any causal relationship or connection will do.” 11
However, Bradley also quoted the Kangas holding that “‘there still must be a causal
connection between the injury sustained and the ownershi p, maintenance or use of the
automobile and which causal co nnection is more than incide ntal, fortuitous or but for.’” 12 It is noteworthy that Bradley used both the Kangas and Shinabarger standards, indicating that they are compatible.

In Thornton, this Court repeated th e “incidental, fortuitous, or ‘but for’” language
of Kangas

. 13 Thornton did not discuss the “almost any causal connection will do” language. Recently, in Putkamer v Transamerica Ins Corp of America , this Court
affirmed that the casual conn ection between an injury and the use of the motor vehicle
must be more than incident al, fortuitous, or “but for.” 14

The Court of Appeals did no t err in relying on these cas es to interpret the causal nexus required in a no-fault case involving injury. Precedent makes clear that an injury requires more than a fortuitous , incidental, or “but for” ca usal connection, but does not require proximate causation. As Bradley states, “almost any caus al connection will do.” Nothing suggests that these two standards are in opposition or cannot be applied together. They logically build on one another and st and for the same basic proposition. Taken together, they mean that evid ence establishing almost an y causal connection will suffice
when it is more than merely fortuitous, incidental, or but for. But it ne ed not be much more; almost any causal connection or relationship will do. The Court in Bradley recognized this when it cited both standards to render its deci sion, just as the Court of Appeals did in this case.

10 Shinabarger v C itizens Mut Ins Co , 90 Mich App 307, 313-314 (1979).

11 Bradley, supra at 42 (citation and quotation marks deleted).

12 Id. at 41-42.

13 Thornton, supra at 659.

14 Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 634 (1997).4

The Court of Appeals undertook a thorough analysis of no-fau lt law and applied it correctly. Rather than apply no-fault law as it has been understood for nearly 30 years, the dissent appears to want to extend the scope of Putkamer. It appears intent on silencing the valid and applicable law of Bradley and Shinabarger, law that forms the
contours of the Putkamer rule and aids in its applica tion. I am unwilling to push
Putkamer down a road it was never inte nded to travel by brushing Bradley and Shinabarger aside to become debris on the legal landscape.

In addition, the dissent asserts that this Court has been ignoring precedents. It is mistaken. For example, th e dissent claims that in Vanslembrouck v Halperin

, 15 the Court ignored Vega v Lakeland Hosps

. 16 However, Vanslembrouck is distinguishable from Vega because Vega determined that MCL 600.5851(1) is a saving provision, whereas
Vanslembrouck held that MCL 600.5851(7) is a stat ute of limitations. Thus, these cases examined the effects of altogether different statutory provisions.

The dissent also claims that in Hardacre v Saginaw Vascular Services

, 17 the Court
failed to follow Boodt v Borgess Med Ctr

. 18 However, in Hardacre , the Court denied leave to appeal because the allegations in the plaintiff’s notice of in tent did not need to comply with Boodt. In Hardacre, the burden of explication of the standard of care was
minimal. 19

Nor did the Court ignore precedent in Sazima v Shepherd Bar & Restaurant

. 20

The dissent claims that the Court failed to follow Chrysler v Blue Arrow Transport
Lines

. 21 However, Sazima involved exceptions to the “ going and coming” rule as set
forth in Camburn v Northwest School Dist. 22 Thus the Court was not bound by Chrysler

.

15 Vanslembrouck v Halperin , 483 Mich ___ (Docket No. 13 5893, order entered April 24, 2009).

16 Vega v Lakeland Hosps , 479 Mich 243 (2007).

17 Hardacre v Saginaw Vascular Services , 483 Mich ___ (Doc ket No. 135706, order entered March 27, 2009).

18 Boodt v Borgess Med Ctr , 481 Mich 558 (2008).

19 See Roberts v Mecosta Co Gen Hosp ( After Remand ), 470 Mich 679, 694 n 12 (2004).

20 Sazima v Shepherd Bar & Restaurant , 483 Mich ___ (Docke t No. 136940, order entered April 3, 2009).

21 Chrysler v Blue Ar row Transport Lines , 295 Mich 606 (1940).

22 Camburn v Northwest School Dist , 459 Mich 471, 478 (1999).5

Finally, the dissent claims that the Court ignored Smith v Khouri 23 when it decided Juarez v Holbrook

. 24 However, in Juarez , it was undisputed that the trial court performed a reasonableness analysis in calc ulating the proper attorney fee award. Therefore, a remand in light of Smith was unnecessary.

Justice Corrigan would have the Cour t ignore three decades of no-fault jurisprudence in an effort to select and sile nce what she finds to be disagreeable portions of precedent in the Court of Ap peals opinion. In addition, she reproaches the Court for refusing to extend precedent to new areas, claiming that refu sing to extend precedent confuses the law and injects whimsy into it. I reject these claims as unpersuasive when weighed objectively. Accordingly, I re spectfully concur in the order granting reconsideration and vacating this Co urt’s prior order in this case.

C ORRIGAN , J. ( dissenting ).

I dissent from this Court’s order gran ting reconsideration and vacating our December 3, 2008, order. 482 Mich 1074 (2008). The Cour t of Appeals judgment in this case stated, with respect to the causal connection required under MCL 500.3105(1), that “almost any causal connection or relationship will do.” Scott v State Farm Mut Auto Ins
Co , 278 Mich App 578, 586 (2008). Our prior order properly vacated that portion of the Court of Appeals judgment as inconsistent with Thornton v Allstate Ins Co , 425 Mich 643 (1986), and Putkamer v Transamerica Ins Corp of America , 454 Mich 626 (1997).

Plaintiff was severely inju red in an automob ile accident in 1981 . She suffered a traumatic brain injury, as well as injuries to her legs. Within seven years of the accident, plaintiff gained a significant amount of wei ght. She was diagnosed with high cholesterol
in 1991. She controlled her cholesterol level with a diet and exercise program until 1997, when her physician prescribed Zocor for high cholesterol. Defendant paid for the medication for approximately seven years, but then terminated pa yment following an independent medical evaluation. Defendant concluded, on the basis of the independent expert’s report, that plaintiff’s high chol esterol (hyperlipidemia) did not arise from the
1981 motor vehicle accident.

Plaintiff’s representatives filed suit in pr obate court, seeking to compel defendant to pay for the medication. The probate co urt denied defendant’s motion for summary disposition, finding a question of fact concerning whether the necessary causal connection existed between plaintiff’s high cholesterol and the accident. The circuit court denied defendant’s application for leave to file an interlocutory appeal. The Court

23 Smith v Khouri , 481 Mich 519 (2008).

24 Juarez v Holbrook , 483 Mich ___ (Docket No. 137358, order entered April 24, 2009).6

of Appeals affirmed the decisi on of the probate court. Scott

, supra . After discussing the caselaw construing MCL 500.3105(1), the Court of Appeals concluded:

Plaintiffs presented testimony indi cating that the accident caused brain and skeletal injuries, which make it difficult for plai ntiff to exercise, and which contribute to poor judgment regarding diet. Plaintiffs also presented evidence that this difficultly in exer cising, and poor diet, contribute to hyperlipidemia. Plaintiffs are not required to establish direct or proximate causation. Almost any causal connection will do . Although a genetic predisposition to h yperlipidemia is apparently present, there is no authority that, for purposes of persona l protection insurance, a plaintiff must exclude other possible causes (as there is, for instance, when proximate causation is at issue, in a trad itional tort context). Plaintiffs have presented evidence to raise a genui ne issue of material fact. [ Scott

, supra at 586 (citations omitted; emphasis added).]

Under MCL 500.3105(1), “an insurer is liab le to pay benefits for accidental bodily injury arising out of the owners hip, operation, maintenance, or use of a motor vehicle as a motor vehicle.” In concluding that “almost any causal conn ection or relationship will do” for purposes of establishing causation under MCL 500.3105(1), the Court of Appeals in
this case relied on Shinabarger v C itizens Mut Ins Co , 90 Mich App 307, 313-314 (1979),
and Bradley v Detroit Automobile Inter-Ins Exch , 130 Mich App 34, 42 (1983), which used that language to describe the required causal connection. Scott

, supra at 585-586. This Court has subsequently considered th e required showing unde r MCL 500.3105(1). We have never adopted so expa nsive a test. Instead, in Thornton

, supra at 659-660, we
concluded:

In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited no-fault [personal protection insura nce] benefits to injuries arising
out of the “use of a motor vehicle as a motor vehicle. ” In our view, this language shows that the Legislature wa s aware of the causation dispute and chose to provide coverage only wher e the causal conn ection between the injury and the use of a motor vehicl e as a motor vehicle is more than incidental, fortuitous, or “but for.” Th e involvement of the car in the injury should be “directly relate d to its character as a motor vehicle.” Therefore,
the first consideration under MCL 50 0.3105(1); MSA 24.1 3105(1)[] must be the relationship between the injury and the ve hicular use of a motor
vehicle. Without a relation that is more than “but for,” incidental, or fortuitous, there can be no recovery of [personal protection insurance] benefits. [Emphasis in original; citation omitted.]

In reaching this conc lusion, we discussed Kangas v Aetna Cas ualty & Surety Co , 64 Mich App 1, 17 (1975), which adopted the “mor e than incidental, fort uitous or but for”7

causation test. Thornton

, supra at 650-651. We note d that “[w]hile the Kangas opinion was not available at the time the Michigan no -fault program was enacted, the bulk of the case law upon which Kangas relied was extant. This case law generally required more than ‘but for,’ incidental or attenuated causation.” Id . at 651.

In Putkamer v Transamerica Ins Corp of America , 454 Mich 626, 634 (1997), we reiterated the test adopted in Thornton :

In reviewing the requirement of subsection 3105(1) that the injury
arise out of the “use of a motor vehi cle as a motor vehicle,” this Court concluded that the Legislature has provided that there should only be coverage where the causal connection between the in jury and the use of the
motor vehicle was more than incidental, fortuitous, or “but for.” [Citations omitted.]

The Court of Appeals was compelled to follow Thornton and Putkamer , which provide the controlling statement of th e causal connection required under MCL 500.3105(1). In resorting to the “almost any causal connection or relationship will do” language of Shinabarger and Bradley , which this Court has never adopted, the Court of Appeals failed to do so. 25 Our prior order properly co rrected the Court of Appeals’ misstatement of the law. Accordingly, I re spectfully dissent from the order vacating our prior order in this case.

The new majority’s failure to enforce Thornton and Putkamer continues a growing and troubling trend. Rather than fort hrightly overruling decisions with which it disagrees, it is increasingly becoming the prac tice of this Court to simply ignore these precedents. See, e.g., VanSlembrouck v Halperin , 483 Mich ___ (Docket No. 135893, order entered April 24, 2009), wh ere the new majority ignored Vega v Lakeland Hosps

, 479 Mich 243, 244 (2007); Hardacre v Saginaw Vascular Services , 483 Mich ___ (Docket No. 135706, order entered Marc h 27, 2009), where it failed to follow Boodt v Borgess Med Ctr , 481 Mich 558 (2008); Sazima v Shepherd Bar & Restaurant , 483 Mich

25 Chief Justice Kelly characterizes the “almo st any causal connec tion” language of Bradley and Shinabarger as “no-fault law as it has been u nderstood for nearly 30 years.”
No decision of this Court bears out such an understanding of no-fau lt law. In addition, Chief Justice Kelly’s suggesti on that the “almost any causal connection” standard could be applied with the “more than incidental, fortuitous, or but for” standard is irrelevant and inaccurate. We implicitly rejected that id ea by not adopting th e “almost any causal connection” language when we considered th e extent of the causal connection required under MCL 500.3105(1) in Thornton and Putkamer . Moreover, the “almost any causal connection” language naturally suggests that the requisite causal connection may be
established on weaker evidence than the more specific and narrowly drawn “more than incidental, fortuitous, or but for” standard.8

___ (Docket No. 136940, order entered Ap ril 3, 2009), where it failed to follow Chrysler v Blue Arrow Transport Lines , 295 Mich 606 (1940), and Camburn v Northwest School Dist (After Remand) , 459 Mich 471 (1999); and Juarez v Holbrook , 483 Mich ___ (Docket No. 137358, order entered April 24, 2009), where it failed to follow Smith v
Khouri , 481 Mich 519 (2008).

In her concurrence, Chief Justice Ke lly attempts to e xplain away the new majority’s actions by sharing her views regard ing the prior caselaw that the new majority has otherwise chosen to ignore. But Chief Ju stice Kelly’s interpreta tion of a prior case in a concurring statement is no t a decision of the Court. More importantly, her argument overlooks the fundamental problem: the new ma jority’s continuing fa ilure to explain its apparent disregard of this Court’s precedent undermines the predicta bility and stability of the rule of law. What distinguishes gover nance by the rule of law from governance by whim is the application across all cases of a body of clear and intelligible principles. Inconsistent application converts th e rule of law into rule by whim.

In Van Orden v Perry , 545 US 677, 697 (2005), a concurring justice similarly criticized the United States Supr eme Court’s Establishment Clau se precedents as being so flexible that they were “inc apable of consistent applica tion.” The concurring justice explained that “[t]he unintelligibility of this Court’s pr ecedent raises the further concern that, either in appearance or in fact, adju dication of Establishmen t Clause challenges turns on judicial predilections. . . . The ou tcome of constitutional cases ought to rest on firmer grounds than the persona l preferences of judges.” Id . (Thomas, J., concurring).

The concerns expressed in Van Orden find ample support in United States Supreme Court caselaw, which has long recogni zed the importance of a coherent body of law. See, e.g., Hilton v South Carolina Pub Railways Comm , 502 US 197, 202 (1991) (stating that adherence to precedent prom otes stability and predictability). Legal principles should not change erratically ; rather, the law shou ld “develop in a principled
and intelligible fashion.” Vasquez v Hillery , 474 US 254, 265 (19 86) (emphasis added).
“While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for
articulable reasons . . . .” Id . at 266 (emphasis added).

On this Court, the new majority offers no articulable reasons whatsoever for its apparent detours from stare decisis. Instead, the majority declines to explain whether— and, if so, why—it is overruling precedent desp ite the obvious appearance that it is doing so. If it intends to alter legal principles embedded in this Court’s decisions, the new majority should explain its re asons clearly and intelligibly. Instead, the new majority overrules by indirection, or at least leaves the impression that it is doing so, thereby sowing the seeds of confusion and making it di fficult for the citizen s of this state to comprehend precisely what ou r caselaw requires. This a ppears to be an unfortunate return to our predecesso rs’ past practice of “frequently pa[ying] little attention to theI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 5, 2009

p0602 9

inconsistencies among its cases and declin[ing] to reduce co nfusion in [the Court’s] jurisprudence by overruling conflicting decisions.” Devillers v Auto Club Ins Ass’n , 473 Mich 562, 571 n 19 (2005).

Y OUNG and M ARKMAN , JJ., join the statement of C ORRIGAN , J.