Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

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, the motion for reconsideration of this Court’s December 3, 

2008 order is considered, and it is GRANTED. We VACATE our order dated 

December 3, 2008. On reconsideration, the application 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 presented should be reviewed by this Court. 

 KELLY, 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 interlocutory appeal by defendant, 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 under 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, causing 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, and 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 level 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, the Court of Appeals correctly 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, there still must be a 

causal connection between the injury sustained and the ownership, 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 element 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 examiner acknowledged a causal link between 

plaintiff’s hyperlipidemia and the automobile accident. 

6 Scott, supra. 

7 Bradley v Detroit Automobile 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 need 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 “flowed from” the use of the vehicle. 

[Citations and quotation marks 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 ownership, maintenance or use of the 

automobile and which causal connection is more than incidental, 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 the “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 connection between an injury and the use of the motor vehicle 

must be more than incidental, fortuitous, or “but for.” 14 

 The Court of Appeals did not err in relying on these cases 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” causal connection, but does not 

require proximate causation. As Bradley states, “almost any causal connection will do.” 

Nothing suggests that these two standards are in opposition or cannot be applied together. 

They logically build on one another and stand for the same basic proposition. Taken 

together, they mean that evidence establishing almost any causal connection will suffice 

when it is more than merely fortuitous, incidental, or but for. But it need 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 decision, just as the Court of 

Appeals did in this case. 

 

10 Shinabarger v Citizens 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-fault 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 application. I am unwilling to push 

Putkamer down a road it was never intended 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, the 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 statute 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 intent 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. 135893, order entered April 24, 

2009). 

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

17 Hardacre v Saginaw Vascular Services, 483 Mich ___ (Docket 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 ___ (Docket No. 136940, order 

entered April 3, 2009). 

21 Chrysler v Blue Arrow 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 Khouri23 when it decided 

Juarez v Holbrook.

24 However, in Juarez, it was undisputed that the trial court 

performed a reasonableness analysis in calculating the proper attorney fee award. 

Therefore, a remand in light of Smith was unnecessary. 

 Justice Corrigan would have the Court ignore three decades of no-fault 

jurisprudence in an effort to select and silence what she finds to be disagreeable portions 

of precedent in the Court of Appeals opinion. In addition, she reproaches the Court for 

refusing to extend precedent to new areas, claiming that refusing to extend precedent 

confuses the law and injects whimsy into it. I reject these claims as unpersuasive when 

weighed objectively. Accordingly, I respectfully concur in the order granting 

reconsideration and vacating this Court’s prior order in this case. 

 CORRIGAN, J. (dissenting). 

 I dissent from this Court’s order granting reconsideration and vacating our 

December 3, 2008, order. 482 Mich 1074 (2008). The Court 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 injured in an automobile 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 weight. 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 payment following an 

independent medical evaluation. Defendant concluded, on the basis of the independent 

expert’s report, that plaintiff’s high cholesterol (hyperlipidemia) did not arise from the 

1981 motor vehicle accident. 

 Plaintiff’s representatives filed suit in probate court, seeking to compel defendant 

to pay for the medication. The probate court 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 decision of the probate court. Scott, supra. After discussing the 

caselaw construing MCL 500.3105(1), the Court of Appeals concluded: 

 Plaintiffs presented testimony indicating that the accident caused 

brain and skeletal injuries, which make it difficult for plaintiff to exercise, 

and which contribute to poor judgment regarding diet. Plaintiffs also 

presented evidence that this difficultly in exercising, 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 hyperlipidemia is apparently present, there is no 

authority that, for purposes of personal protection insurance, a plaintiff 

must exclude other possible causes (as there is, for instance, when 

proximate causation is at issue, in a traditional tort context). Plaintiffs have 

presented evidence to raise a genuine issue of material fact. [Scott, supra at 

586 (citations omitted; emphasis added).] 

 Under MCL 500.3105(1), “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.” In concluding that “almost any causal connection 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 Citizens 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 the required showing under MCL 500.3105(1). 

We have never adopted so expansive 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 insurance] 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 was aware of the causation dispute and 

chose to provide coverage only 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.” The involvement of the car in the injury 

should be “directly related to its character as a motor vehicle.” Therefore, 

the first consideration under MCL 500.3105(1); MSA 24.13105(1)[] must 

be the relationship between the injury and the vehicular 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 conclusion, we discussed Kangas v Aetna Casualty & Surety Co, 64 

Mich App 1, 17 (1975), which adopted the “more than incidental, fortuitous or but for” 
7

causation test. Thornton, supra at 650-651. We noted 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 vehicle as a motor vehicle,” this Court 

concluded that the Legislature has provided that there should only be 

coverage where the causal connection between the injury 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 the 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 corrected the Court of Appeals’ 

misstatement of the law. Accordingly, I respectfully 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 forthrightly overruling decisions with which it 

disagrees, it is increasingly becoming the practice of this Court to simply ignore these 

precedents. See, e.g., VanSlembrouck v Halperin, 483 Mich ___ (Docket No. 135893, 

order entered April 24, 2009), where 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 March 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 “almost any causal connection” language of 

Bradley and Shinabarger as “no-fault law as it has been understood for nearly 30 years.” 

No decision of this Court bears out such an understanding of no-fault law. In addition, 

Chief Justice Kelly’s suggestion 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 idea by not adopting the “almost any causal 

connection” language when we considered the 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 April 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 Kelly attempts to explain away the new 

majority’s actions by sharing her views regarding the prior caselaw that the new majority 

has otherwise chosen to ignore. But Chief Justice Kelly’s interpretation of a prior case in 

a concurring statement is not a decision of the Court. More importantly, her argument 

overlooks the fundamental problem: the new majority’s continuing failure to explain its 

apparent disregard of this Court’s precedent undermines the predictability and stability of 

the rule of law. What distinguishes governance 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 the 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 Supreme Court’s Establishment Clause precedents as being so 

flexible that they were “incapable of consistent application.” The concurring justice 

explained that “[t]he unintelligibility of this Court’s precedent raises the further concern 

that, either in appearance or in fact, adjudication of Establishment Clause challenges 

turns on judicial predilections. . . . The outcome of constitutional cases ought to rest on 

firmer grounds than the personal 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 recognized 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 promotes stability and predictability). Legal 

principles should not change erratically; rather, the law should “develop in a principled 

and intelligible fashion.” Vasquez v Hillery, 474 US 254, 265 (1986) (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 despite 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 reasons 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 difficult for the citizens of this state to 

comprehend precisely what our caselaw requires. This appears to be an unfortunate 

return to our predecessors’ past practice of “frequently pa[ying] little attention to the 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, 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 confusion in [the Court’s] 

jurisprudence by overruling conflicting decisions.” Devillers v Auto Club Ins Ass’n, 473 

Mich 562, 571 n 19 (2005). 

 YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.