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### STATE OF MICHIGAN

COURT OF APPEALS

NORMAN LEVANDER,

Plaintiff-Appellant, UNPUBLISHED June 18, 2015

v No. 320101
Genesee Circuit Court HOME OWNERS INSURANCE COMPANY, LC No. 11-096786-NF

Defendant-Appellee,

and

PROGRESSIVE MICHIGAN INSURANCE COMPANY,

Defendant.

Before: M URPHY , P.J., and S TEPHENS and G ADOLA , JJ.

P ER C URIAM

.

In this first-party action brought pursuant to the Michigan no -fault act, MCL 500.3101 et

seq ., plaintiff Norman Levander sought personal protection insuran ce (PIP) benefits from his motor vehicle insurer, defendant Home Owners Insurance Company (Home Owners), to cover losses associated with injuries that he suffered when the motor cycle he was operating crashed upon exiting a highway. Home Owners had denied plaintiff’s cla im for PIP benefits, asserting that the motorcycle accident and resultant injuries did not inv olve or arise out of the operation or
use of a motor vehicle. Plaintiff contended that the accident was caused by a vehicle whose driver had belatedly maneuvered to exit the highway right behin d plaintiff’s motorcycle, tailgating him at an excessive s peed, which required plaintiff to take immediate evasive action to avoid being struck, resulting in the accident. 1 On Home Owners’ motion for summary disposition under MCR 2.116(C)(10), the trial court ruled that a genuine issue of material fact existed with respect to whether the accident involved or was caused by the alleged tailgating motor vehicle. Nevertheless, the trial court granted summary d isposition in favor of Home

1 Plaintiff also claimed that perhaps two motor vehicles were in volved in the accident, one that swung over from a distant lane and one that was directly behind his motorcycle.-2- Owners on the basis that the insurer of this motor vehicle, def endant Progressive Michigan Insurance Company (Progressive), was the higher priority insure r under MCL 500.3114(5). Progressive, which is not a party to this appeal, had been gran ted summary disposition because plaintiff failed to give notice to or file suit against Progres sive within the one-year statute of limitations in MCL 500.3145. On appeal, plaintiff, while agree ing with the trial court that a genuine issue of material fact exi sts in regard to whether the alleged tailgating motor vehicle was involved in or caused the accident, argues that a similar factu al issue exists in connection to the possible involvement of a second motor vehicle. As an alternat ive basis for us to affirm the trial court’s order granting summary disposition, Home Owners argues that there is no genuine issue
of material fact that no motor vehicles were involved in or cau sed the accident. Next, plaintiff maintains on appeal that Home Owners can be held liable for the payment of PIP benefits, despite the statutory priority provisions, because the tailgati ng motor vehicle and the other potentially-involved vehicle were not identifiable, and because estoppel and waiver principles bar Home Owners from arguing priority. We reverse and remand f or further proceedings.

I. BACKGROUND

On September 24, 2010, plaintiff was operating his motorcycle, traveling southbound on I-75 in the area of Corunna Road in Flint Township. According to plaintiff’s deposition testimony, as he entered the exit ramp for the Corunna Road exi t, he “saw something flash [o]n [his] left side and [he] looked real quick and there was a car coming that was in the third lane over . . . coming across[] to the exit.” He then turned and lo oked in his mirrors and saw that the vehicle had “popped right in behind [him],” at which point all he could see was the vehicle’s hood. Plaintiff was “startled” by the vehicle moving so fast a nd “so close” behind him. Plaintiff then decided that, because the vehicle was closing in on him at a high rate of speed, he should drive his motorcycle onto the grass between I-75 and the exit r amp, rather than try to continue on the exit ramp, as he did not want to get hit from behind and “e nd up getting knocked off and rolling under” the car. Once plai ntiff left the pavement, his rear tire hit the curb and “bounced up in the air,” his bike started “wobbling,” he “went down to the ground,” and he was “knocked out.” According to plaintiff, if he had stayed on the roadway, the vehicle would have collided with the rear end of his motorcy cle, so he veered off the road in an effort to avoid a collision.
Plaintiff did not recall bei ng pushed from behind or knocked of f to the side by the vehicle.

As eventually determined, Camille Sumpter, the only witness to the accident listed in the police accident report, was the owner and operator of the motor vehicle that was driving directly behind plaintiff when the accident occurred. Sumpter’s no-faul t motor vehicle insurer was Progressive. According to Sumpter’s deposition testimony, on t he day of the accident, the traffic was congested and she was approximately a car length or less be hind plaintiff’s motorcycle as her vehicle and the motorcycle entered the exit ramp off of I-7 5. Sumpter testified that her car and plaintiff’s motorcycle were both slowing down as they enter ed the exit, traveling between 45 and 60 miles per hour. Sumpter, however, believed that plainti ff’s motorcycle was traveling substantially faster than her vehicle as they exited, and there was not much space for the motorcycle to stop before colliding with the rear of the stoppe d vehicles waiting for the stoplight at the top of the exit ramp. According to Sumpter, plaintiff’s motorcycle hit a curb and plaintiff flew off, going probably 20 or 30 feet. Sumpter, who stopped t o assist plaintiff, indicated that, after he regained consciousness, plaintiff stated, “I took my e yes off the road.” Sumpter did not observe anything that might have caused plaintiff to take evasi ve action, never sensed that she-3- was going to collide with plaintiff’s motorcycle at any time, a nd never had to slam on her brakes or skid or do anything of the kind. According to Sumpter, she would not have rear-ended the motorcycle had plaintiff applied his brakes.

The police accident report indicated that plaintiff entered th e off-ramp going too fast, lost control, hit the curb, and then crashed. The reporting police officer’s deposition testimony reflected that this conclusion was based on Sumpter’s statement to the officer. The police officer testified that plaintiff did not say anything about being tailg ated, but the officer believed that he did recall plaintiff blaming the crash on somebody cutting him off “or something like that.” While the police accident report identified Sumpter as a witnes s, the report gave no indication whatsoever that Sumpter had been traveling directly behind plai ntiff’s motorcycle. Plaintiff was transported to Genesys Regional Medical Center for treatment, a nd an associated medical report
indicated:

[Plaintiff] states he was ridi ng and looked behind him and he felt there was a car coming closely behind him. He states while looking be hind him he did not realize that a turn was coming up quickly, he missed the turn, went into the median. He states he flipped over a few times.

Plaintiff was seriously injured in the accident and, within tw o months of the accident, made a claim for PIP benefits from Home Owners, his no-fault mo tor vehicle insurer, asserting
that he was forced off of the ex it ramp by an unidentified moto r vehicle. Given her identification as a witness on the accident report, Home Owners conducted an i nterview of Sumpter about the accident. She told an adjustor that she was driving “right beh ind” plaintiff, “probably a couple feet,” that her vehicle never made contact with plaintiff’s mot orcycle, and that it looked like plaintiff either missed the exit and ran into the curb or came up on the exit too fast and was
unable to make the turn. A little over three months after the accident, Home Owners notified plaintiff through his counsel that the claim was denied because Home Owners’ investigation
revealed that the accident did no t involve a motor vehicle, as necessary to be eligible for PIP benefits in regard to injuries incurred while operating a motor cycle. The notice made no mention of Sumpter’s statements to the a djuster, nor was there any indi cation that PIP benefits were being denied on the basis that another insurer had priority in provid ing benefits to plaintiff. In an affidavit supplied by an attorney for the law firm representing plaintiff, the attorney averred, in relevant part:

5. Based on Defendant Home-Owners denial based on lack of ve hicular involvement, I contac ted the witness liste d on the . . . accide nt report, Ms. Camille Sumpter. The . . . [report] lists her as merely a witness and d oes not document her involvement in the accident. When I spoke with her, she denied following Plaintiff’s motorcycle closely.

6. Because the . . . [accident report] does not document the location of the Sumpter vehicle at the time of the crash, because Ms. Sumpter d enied following the vehicle closely when I contacted her, and because Defendant Home-Owners represented that the Sumpter vehicle was not involved, I contin ued to believe that
an unidentified vehicle ran Mr. Levander off the road.-4- 7. At no time did Defendant Home-Owners disclose to me that it had interviewed Ms. Sumpter and that she admitted to being within a couple of feet of Plaintiff’s motorcycle at the time of the collision.

On September 21, 2011, almost one year after the accident, pla intiff filed the instant action against Home Owners, seeking recovery of PIP benefits un der the no-fault act. On July 3, 2012, over 21 months after the accident and after the one-year limitations period had expired, MCL 500.3145(1), 2 plaintiff amended his complaint to add a claim for PIP benefit s against Sumpter’s insurer Progressive. P laintiff amended the complaint on the basis of Sumpter’s deposition testimony elicited dur ing the litigation, which reve aled to plaintiff, allegedly for the first time, that Sumpter’s car was the vehicle directly behind plaintiff and was traveling within a car length or less of plaintiff’s motorcycle when the accident occurred. In plaintiff’s mind, this testimony indicated that Sumpter’s motor vehicle had indeed bee n involved in the accident. On Progressive’s motion for summary disposition, the trial court d ismissed Progressive, concluding that plaintiff’s suit against Progressive was time-barred. Mor e specifically, the court dismissed the claim against Progressive because plaintiff admittedly fail ed to provide notice of his claim to or file suit against Progressive for PIP benefits within one ye ar of the accident as required under MCL 500.3145(1). See Devillers v Auto Club Ins Ass’n , 473 Mich 562, 573-574; 702 NW2d 539 (2005).

Home Owners also moved for summary disposition under MCR 2.116 (C)(10), arguing that pursuant to MCL 500.3105(1), it was not responsible for pa ying PIP benefits because a motor vehicle was not sufficiently involved in the accident, as necessary to trigger entitlement to
benefits under the no-fault act. MCL 500.3105(1) provides:

Under personal protection insurance an insurer is liable to pa y benefits for accidental bodily injury arising out of the ownership, operatio n, maintenance or
use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. [Emphasis added.]

A motorcycle does not constitute a “motor vehicle” for purpose s of MCL 500.3105(1) and the no-fault act; however, the Legislature has not entirely excluded injured motorcyclists from obtaining PIP benefits. Detroit Med Ctr v Progressive Mich Ins Co , 302 Mich App 392, 394-395; 838 NW2d 910 (2013). 3 Rather, an injured motorcyclist is entitled to no-fault benef its

2 MCL 500.3145(1) provides, i n pertinent part:

An action for recovery of personal protection insurance benefi ts payable under this chapter for accidental bodily injury may not be comm enced later than 1 year after the date of the acci dent causing the injury unless w ritten notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal pr otection insurance benefits for the injury. . . . .

3 We note that a “motorcycle insurer is never required to pay PI P benefits through the motorcycle policy.” Perkins v Auto-Owners Ins Co , 301 Mich App 658, 665-666; 837 NW2d 32 (2013).-5- when his or her motorcycle is involved in an accident that aros e out of the ownership, operation, maintenance, or use of a motor vehicle. Id. at 395. In other words, a party injured while operating or riding a motorcycle must tie the accident to the i nvolvement of a motor vehicle. Home Owners took the position that there was no genuine issue o f material fact that there was a complete absence of a causal c onnection between plaintiff’s inj uries and the operation or use of a motor vehicle; therefore, it had no obligation to provide PIP b enefits to plaintiff. Alternatively, Home Owners argued that it was undisputed that Sumpter’s vehicl e was the only vehicle directly behind plaintiff at the time of the accident, and thus, if a mo tor vehicle was indeed involved in the accident, it could only have been Sumpter’s car. Therefore , according to Home Owners, if plaintiff was entitled to PIP be nefits at all, Progressive, Sumpter’s insurer, was the higher priority insurer under MC L 500.3114(5). MCL 500.3114 provides in relevant part as follows:

(1) Except as provided in subsections (2), (3), and (5), a per sonal protection insurance policy de scribed in section 3101(1) applie s to accidental bodily injury to the person named in the policy, the person's s pouse, and a relative of either domiciled in the same household, if the injury arises from a motor
vehicle accident.

. . .

(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a m otor vehicle while an operator or passenger of a motorcycle shall claim pers onal protection
insurance benefits from insure rs in the following order of prio rity:

(a) The insurer of the owner or registrant of the motor vehicl e involved in the accident. [ostens ibly Progressive]

(b) The insurer of the operator of the motor vehicle involved in the accident. [ostensibly Progressive]

(c) The motor vehicle insurer o f the operator of the motorcycl e involved in the accident. [Home Owners]

(d) The motor vehicle insurer o f the owner or registrant of th e motorcycle involved in the accident. [Home Owners]

In general, under subsection (1) above, “an injured person is required to seek compensation from his own no-fault insurer, regardless of wheth er that person’s insured vehicle
is involved in the accident.” Farmers Ins Exch v AAA of Mich , 256 Mich App 691, 695; 671 NW2d 89 (2003). However, the Legislature has provided exceptio ns to this general rule, such as the one in subsection (5) of MCL 500.3114. Farmers Ins Exch v Farm Bureau Ins Co of Mich

, 272 Mich App 106, 111; 724 NW2d 485 (2006). “MCL 500.3114(5). . . establishes the priority in which a motorcycle rider accidentally injured by a motor veh icle must claim no-fault
benefits.” Id. Home Owners’ position was that, assuming the sufficient involve ment of Sumpter’s motor vehicle, thereby triggering MCL 500.3114(5), Pr ogressive, and not Home

Owners , would be liable for plaintiff’ s PIP benefits. Home Owners ar gued that regardless of whether a motor vehicle was involved in or caused the accident, it was entitled to summary-6- disposition – if there was no mo tor vehicle involvement, MCL 50 0.3105(1) precluded its liability to pay PIP benefits, and if a motor vehicle was involved in the accident, MCL 500.3114(5) precluded its liability.

In response, plaintiff argued that the evidence created a genu ine issue of material fact regarding whether a motor vehicle was sufficiently involved in the motorcycle accident so as to trigger entitlement to PIP benefits under the no-fault act. Wi th respect to Home Owners’ alternative argument, plaintiff’s position was that Home Owners could be held liable for the payment of PIP benefits, despite the statutory priority languag e in MCL 500.3114(5), given that Sumpter’s motor vehicle and any other potentially -involved vehi cle were not identifiable. Plaintiff insisted that it was proper to seek PIP benefits from Home Owners under the circumstances. Plaintiff also argued that Home Owners was equi tably estopped fr om relying on the priority provisions, considering that Home Owners had information, which was never shared, that Sumpter had closely trailed plaintiff’s motorcycle, yet it denied coverage solely on the basis of lack of involvement by a motor vehicle, not priority. For s imilar reasons, plaintiff also contended that Home Owners had waived a priority argument on th e basis of the “mend the
hold” doctrine. 4

The trial court concluded that evidence sufficient to create a n issue of fact existed with respect to whether the accident involved or arose out of the op eration or use of Sumpter’s motor vehicle. However, the tri al court further ruled:

Pursuant to MCL 500.3114(5)(a), a timely filed claim against t he Sumpter
vehicle would have survived a motion for summary disposition. P laintiff’s failure to timely file the claim against the carrier for the Sumpter ve hicle does not allow plaintiff to seek damages against the next insurer in priority[ , i.e., Home Owners,] under MCL 500.3114(5). Therefore, summary disposition is GRANTE D in favor of Home Owners . . . with respect t o plaintiff’s claim for firs t party benefits.

4 See C E Tackels, Inc v Fantin , 341 Mich 119, 124; 67 NW2d 71 (1954). A version of the
doctrine was set forth in Smith v Grange Mut Fire Ins Co of Mich , 234 Mich 119, 122-123; 208 NW 145 (1926), wherein our Supreme Court observed:

This court has many times held, and it must be accepted as the settled law of this state, that, when a loss under an insurance policy has occurred and payment refused for reasons sta ted, good faith requires that th e company shall fully apprise the insured of all the defenses it intends to rel y upon, and its failure to do so is, in legal effect, a waiver, and estops it from main taining any defenses to an action on the polic y other than those of which it has thu s given notice.

We note that in Kirschner v Process Design Assoc, Inc , 459 Mich 587, 593-595; 592 NW2d 707 (1999), the Supreme Court discu ssed various limitations on the principle espoused in Smith.-7- It does not appear that the trial court gave any consideration to plaintiff’s arguments regarding equitable estoppel, th e “mend the hold” doctrine, or the claim that the Sumpter vehicle was not identifiable prior to t he expiration of t he one-year st atute of limitations, MCL 500.3145.

II. ANALYSIS

A. STANDARD OF REVIEW

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Elba Twp v Gratiot Co Drain Comm’r , 493 Mich 265, 277; 831 NW2d 204 (2013). We additionally review de novo questi ons of law, including the pro per interpretation of a statute.

Estes v Titus , 481 Mich 573, 578-579; 751 NW2d 493 (2008).

B. SUMMARY DISPOSITION PR INCIPLES – MCR 2.116(C)(10)

With respect to the principles governing a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court in Pioneer State Mut Ins Co v Dells , 301 Mich App 368, 377; 836 NW2d 257 (2013), observed:

In general, MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the m oving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court may grant a motion for summary disposition under MCR 2.116(C)(1 0) if the pleadings, affidavits, and other documentary evidence, when vie wed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists w hen the record, giving the benefit of reasonabl e doubt to the opposing party, l eaves open an issue upon which reasonable minds might differ. The trial court is no t permitted to assess credibility, weigh the evidence, or resolve factual disp utes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary di sposition under MCR 2.116(C)(10). [Citations and quotation marks omitted.]

C. RULES OF STATUT ORY CONSTRUCTION

In Whitman v City of Burton , 493 Mich 303, 311-312; 831 NW2d 223 (2013), the Michigan Supreme Court recited t he rules governing statutory co nstruction:

When interpreting a statute, we follow the established rules o f statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be gi ven to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exis ts in the-8- language of the statute is it proper for a court to go beyond t he statutory text to ascertain legislative intent. [Citations omitted.]

D. DISCUSSION

For the reasons set forth below, we hold that there existed a genuine issue of material fact with respect to whether the motorcycle accident and resultant i njuries involved or arose out of the operation or use of Sumpter’s motor vehicle; this conclusio n does not encompass the purported “second” motor vehicle, of which there was insufficie nt evidence relative to causation. We initially tackle the question regarding the relevancy of whe ther a genuine issue of material fact existed, given the priority rules in MCL 500.3114(5). Wer e we to hold as a matter of law that the accident and injuries did not arise out of the operation or use of any motor vehicle, as urged by Home Owners, the analysi s would be complete, as plaint iff would not be entitled to PIP benefits from Home Owners under MCL 500.3105(1). Summary dismi ssal in favor of Home Owners would be proper in that setting. Similarly, if the trie r of fact following trial were to make that same finding, Home Owner s would be entitled to a judg ment in its favor. On the other hand, whether determined as a matter of law by way of a motion for summary disposition or determined following a trial, if the accident and injuries invo lved or arose out of the operation or use of Sumpter’s motor vehic le, MCL 500.3105(1), standing alone , would implicate Home Owners’ liability for providing PIP benefits to plaintiff. But that liability would ordinarily be subject to 0the priority provisions in MCL 500.3114(5), which w ould place Progressive ahead of Home Owners, making Progressive fully responsible for all PIP p ayments. However, as indicated above, Progressive can no longer be held legally obli gated to pay PIP benefits to plaintiff because plaintiff faile d to commence an action agains t Progressive and failed to give a written notice of injury to Progressive within one year after t he date of the accident, MCL 500.3145(1).

MCL 500.3114(5) dictates that the injured person “shall claim” PIP benefits from an insurer “in the . . . order of priority.” From the beginning, plaintiff operated on the basis that a motor vehicle caused the accident; therefore, plaintiff, under ordinary circumstances, should have filed a timely claim against the insurer of the owner, reg istrant, or operator of any involved motor vehicle in order to comply with MCL 500.3114(5). Plainti ff maintains that he was unable to identify Sumpter’s motor vehicle in relationship to pursuing a claim against her insurer, Progressive, within the one-y ear limitations period in MCL 500. 3145(1).

In Frierson v West American Ins Co , 261 Mich App 732; 683 NW2d 695 (2004), the plaintiff was a passenger on a mo torcycle when a motor vehicle, coming from the opposite direction, made a left turn right in front of the motorcycle’s path. “In order to avoid a collision with the motor vehicle, the [motorcycle] operator swerved or sl ammed on his brakes, causing himself and plaintiff to hit the ground.” Id. at 733. The police failed to locate the motor vehicle, and there was no available information concerning the motor veh icle, its driver, or the insurer, if any. The operator of the motorcy cle did not have separate PIP coverage. The plaintiff’s no-fault motor vehicle insurer was West American Insurance Company (West American). The Michigan Assigned Claims Facility (MACF) assigned the plaintiff’s claim to Farm Bureau Mutual Insurance Company (Farm Bureau). We note that, because the injured plaintiff was a motorcycle

passenger , the plaintiff’s insurer, West American, did not qualify as an y one of the four possible entities listed in MCL 500.3114(5)(a)-(d) (insurer of motor veh icle’s owner or registrant; insurer-9- of motor vehicle’s operator; motor vehicle insurer of motorcycl e’s operator; motor vehicle insurer of motorcycle’s owner or registrant).

West American and Farm Bureau e ngaged in a priority dispute, a nd the trial court concluded that West American was first in priority. Frierson , 261 Mich App at 733. This Court, in affirming, first ruled that the documentary evidence conclus ively established that the unidentified motor vehicle had been involved in the motorcycle accident. Id. at 736-737. We
note that had the no-fault insurer of the unidentified motor ve hicle actually been identifiable, that insurer would clearly have had priority in providing PIP benefi ts to the plaintiff. The panel next acknowledged “that the insurers listed in subsections a to d of MCL 500.3114(5) either [did] not exist or [could not] be identifie d in this case[,]” leaving the Court to determine whether the plaintiff’s own insurer, West American, or the MACF-assigned in surer, Farm Bureau, was liable for the plaintiff’s PIP benefits. Id. at 737. This Court ruled:

Here, we have an unidentified insurer who, if identified, woul d be liable under one of the exceptions in MCL 500.3114(1), namely MCL 500. 3114(5). But,
because that insurer is unident ified, the priority dispute rema ins between plaintiff's insurer a nd the MACF insurer.

On the basis of our Supreme Court's determination in Parks [ v Detroit
Automobile Inter-Ins Exch , 426 Mich 191, 204; 393 NW 2d 833 (1986)] . . .

, of the legislative purpose underlying the no-fault act,[ 5 ] we conclude that when an insurer that would be liable under one of the exceptions in MCL 500.3114(1) cannot be identified, the general rule applies and the injured party must look to her own insurer for personal pr otection insurance benefits.

We hold that the analytical framework from Frierson is equally applicable here, such that, if plaintiff could not ide ntify Sumpter’s vehicle under t he circumstances presented, and thus could not identify Progressive as the purported higher priority insurer under MCL 500.3114(5) before expiration of the one-year statute of limitations, MCL 5 00.3145(1), Home Owners can be held liable to pay PIP benefits. 6 In its ruling, the trial court simply concluded that “[p]lain tiff’s

5 The Frierson panel, quoting Parks , 426 Mich at 204, stated:

“[T]he Legislature, in its broa der purpose, intended to provid e benefits whenever, as a general proposition, an insured is injured in a motor vehicle accident, whether or not a registered or covered motor vehicle is involved;
and in its narrower purpose intended that an injured person's personal insurer stand primarily liable for such benefits whether or not its policy covers the motor vehicle involved and even if th e involved vehicle is cover ed by a policy issued by another no-fault insurer. ” [ Frierson , 261 Mich App at 737-738 (emphasis and alteration in original).]

6 Of course, this is predicated on the assumption that the accid ent and injuries involved or arose out of the operation or use of S umpter’s motor vehicle.-10- failure to timely file the claim against . . . [Progressive] do es not allow plaintiff to seek damages against the next insurer in priority [Home Owners] under MCL 50 0.3114(5).” The trial court did not appear to entertain or consider, under the facts and circum stances surrounding this case, whether Progressive was identifia ble as a higher priority insur er under MCL 500.3114(5) before expiration of the one-year limitations period. Accordingly, we remand the case to the trial court for consideration of this issue and application of the Frierson decision. If the trial court finds in favor of Home Owners on the issue, we next direct the trial court to consider the equitable estoppel and waiver (“mend the hold” doctrine) arguments, which the court also apparently failed to consider and rule upon. 7

If the trial court determines that Sumpter/Progressive was ide ntifiable before the limitations period elapsed, and it rejects the equitable estopp el and waiver arguments, Home Owners will be entitled to summary dismissal, subject, of cours e, to any appeal of the court’s decisions. If the trial court determines that Sumpter/Progress ive was not identifiable before the limitations period expired, or tha t plaintiff’s equitable estop pel or waiver argument is sound and applicable, the case is to proceed to trial on the question whe ther the accident involved or arose out of the use or operation of Sumpt er’s motor vehicle, as ther e is a genuine issue of material fact
on the matter for the reas ons that we now discuss.

In Detroit Med Ctr , this Court discussed the level of a motor vehicle’s involveme nt sufficient to satisfy MCL 500.3105(1):

There is no “iron-clad rule” as to what level of involvement i s sufficient under MCL 500.3105. However, while the automobile need not be t he proximate cause of the injury, there still must be a causal connection be tween the injury sustained and the ownership, maintenance or use of the automobi le and which causal connection is more than incidental, fortuitous or but fo r. The injury must be foreseeably identifiable with the normal use, maintenance an d ownership of the
vehicle. The causal connection be tween the injuries and the mot or vehicle cannot be extended to something distinc tly remote. Moreover, the injur ies must be more than tangentially related to the use of an automobile to trigge r the entitlement to no-fault benefits. Actual physical contact between a motorcycle and a motor vehicle is not required to establish the requisite involvement of a motor vehicle in an accident as long as the causal nexus between the accident an d the car is established. For a motor vehicle to be involved in an accident, it must actively, as opposed to passively, contribute t o the accident, and have more than a random
association with the accident sc ene. [T]here must be some activ ity, with respect to the vehicle, which somehow contributes to the happening of the accident. [ Detroit Med Ctr , 302 Mich App at 395-396 ( citations and quotation marks omitted; alteration in original).]

7 Because the trial court did not address these issues, it would be improper for us to rule on the
matters in the first instance.-11- In Frierson , as indicated above, this Court determined that the motor vehi cle was involved in the motorcycle accide nt, where “[t]he deposition te stimony established that the motor vehicle . . . turn[ed] left into the lane occupied by the motorcycle, causing the motorcycle operator to brake to avoid h itting the motor vehicle.” Frierson

, 261 Mich App at 736-737.

Taking into consideration the evidence placing Sumpter’s car d irectly behind plaintiff’s motorcycle immediately preceding the accident, the deposition t estimony by plaintiff revealing a direct causal connection, the statement by Sumpter to Home Owne rs’ adjuster and Sumpter’s deposition testimony about how closely she trailed plaintiff’s motorcycle, the police officer’s testimony concerning plaintiff’s remark about being cut off, an d plaintiff’s statement to treating medical personnel about the prec ipitating events, there was an abundance of documentary evidence establishing a genuine issue of material fact on the question regarding whether Sumpter’s motor vehicle was involved in or caused the accident. While there was also evidence suggesting no involvement of Sumpter’s motor vehicle in the acc ident, we must view the evidence in a light most favorable to plaintiff. Pioneer State Mut , 301 Mich App at 377. And in so doing, the evidence favorable to plaintiff: showed a causal connection between plaintiff’s injuries and the use of a motor vehicle, which causal connectio n was more than incidental, fortuitous, or but for; showed injuries that were foreseeably i dentifiable with the normal use of Sumpter’s vehicle; showed a causal connection that was not dist inctly remote; showed injuries that were more than tangentially related to the use of Sumpter’ s vehicle; and, showed that Sumpter’s vehicle actively, as opposed to passively, contribute d to the accident that went beyond
a random association with the acc ident scene. Indeed, plaintif f’s deposition testimony alone makes this a triable issue for a fact-finder. If, following a determination that the Sumpter vehicle was not identifiable within the one-year limitations period or, if identifiable, that equitable estoppel or waiver principles a pplied, and the trier of fact fi nds that Sumpter’s motor vehicle was involved in and caused the accident and injuries, plaintiff wil l be entitled to PIP benefits from
Home Owners on the establishm ent of related losses.

With respect to plaintiff’s argument that the trial court impr operly limited its ruling to the possible involvement of Sumpter’s vehicle, where, according to plaintiff, the evi dence suggested that a “second” motor vehicle also contributed to the accident, we find no basis to disturb the trial court’s ruling. All of the documentary evidence placed S umpter’s motor vehicle directly behind plaintiff’s motorcycle, and plaintiff’s own testimony de finitively and fully laid the blame for the accident on the car that was directly behind him, which caused him to take evasive action and crash. While Sumpter testified that she did not observe any motor vehicle making an abrupt lane change in an effort to use the exit ramp, as alluded to by plaintiff in his deposition, and although Sumpter testified that s he had been traveling right be hind plaintiff for “maybe a minute,” this testimony did not create a genuine issue of mater ial fact regarding a causal

connection between the accident and a purported second car. Plaintiff hi mself twice indicated in his deposition testimony that the car that had abruptly changed lanes was the very same car that ended up directly behind him and which caused the accident. Su mpter’s testimony perhaps creates a factual dispute concerning the existence of a second car, but, in light of plaintiff’s-12- testimony and the other evidence, there is not a triable issue on the assertion that a “second” car was involved in or caused, even in pa rt, the accident for which plaintiff seeks PIP benefits. 8

III. CONCLUSION

We remand for the trial court to entertain the issue concernin g whether Sumpter’s motor vehicle was identifiable within the one-year statute of limitat ions, MCL 500.3145, and, if the court determines that it was identifiable, to address whether e quitable estoppel or waiver principles nevertheless preclude Home Owners from arguing the i ssue of priority. If plaintiff’s case survives these obstacles, the case is to proceed to trial on the question whether the motorcycle accident and resultant injuries involved or arose ou t of the operation or use of Sumpter’s motor vehicle.

Reversed and remanded for further proceedings. We do not reta in jurisdiction. Having prevailed on appeal, plaintiff is awarded taxable costs pursuan t to MCR 7.219.

/s/ William B. Murphy /s/ Cynthia Diane Stephens
/s/ Michael F. Gadola

8 The responding police officer’s v ague recollection that plaint iff stated that somebody had cut him off “or something like that” is wholly inadequate to link a second car for purposes of causation. Moreover, we reject t he opinion of plaintiff’s expe rt, who averred that a “second” car was “actively involved as a cause” of the accident, as it is ef fectively a legal conclusion and one that is not supported by the record ; it does not create a genui ne issue of material fact on causation
and the involvement of the purported second car. See Maiden v Rozwood , 461 Mich 109, 130 n 11; 597 NW2d 817 (1999) (expert “witness did not create a quest ion of fact by merely opining that defendant's performance violated the statutory standard;” “[w]hether the statutory standard of care was violated is a legal conclusion[, and] [t]he opinion of an expert does not extend to legal conclusions”).