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Courts appear to put "fault" back in no fault, where biker's injuries are concerned

One key element of the 1974 Michigan "no fault" act was requiring all drivers to purchase Personal Injury Protection benefits, so that their medical expenses would be paid without a lawsuit over "fault."  Since motorcyclists are typically free of fault but often badly injured in collisions "involving" cars and trucks, and since their PIP benefits would thus be disproportionately expensive, the Legislature made the policy determination that cyclists should collect PIP benefits from the "involved" motor vehicle. Two recent holdings in the Court of Appeals suggest that insurance-oriented judges are interpreting the circumstances of motorcycle-related collisions to exclude coverage for bikers entitled to PIP benefits.

The first of these cases is Detroit Medical Center v. Progressive Michigan Insurance Company.  The DMC sought payment of medical bills incurred when a motorcyclist over-reacted to approaching headlights and suffered injury when he "dropped" his bike.  The Court suggested that "fault" is not an issue in the discussion of "involvement" but then concluded that since the motorcyclist "over-reacted" to the presence of the motor vehicle, the vehicle was not "involved" in the collision.  It suggested that the mere presence of a vehicle did not constitute "involvement" if the presence was "passive" and that the car in this case was not "sufficiently involved" to entitle the bike to PIP benefits.  The conservative, insurance-oriented judges explained that "while fault is not a relevant consideration...the operation of the motor vehicle must have created an actual need for the motorcyclist to take evasive action...there must be some ctivity by the motor vehicle that contributes to the happening of the accident beyond its mere presence."  Read "fault." 

This issue is purely one for a policy decision with regard to how far "causation" should be extended:  i.e., is mere "involvement" enough, or is something more required.  As usual, given any policy freedom, the insurance-oriented judges have chosen to shift the burden of the no fault act from insurers to victims and health care providers and taxpayers.

In the recent case of Leslie Braverman, conservator for Pamella Smutzki, v. Auto-Owners Insurance Company, a very conservative panel of the Court of Appeals challenged this No Fault policy and reversed a summary disposition in favor of a deceased motorcyclist.  Smutzki suffered fatal injuries when she lost control of her motorcycle while approaching a tractor trailer that was stopped and occupying both lanes of Haggerty Road, near Van Born.  Her companion bikers were able to stop without striking the semi, but Smutzki was not, and laid the bike down.

The Conservator appointed to manage Smutzki's affairs sought PIP benefits (basically medical expenses and three years of survivor's benefits) from the insurer of the truck.  The trial judge granted her summary disposition and the insurer appealed.  It argued that the semi-tractor trailer unit was not "involved" in Smutzki's death.  The appellate judges essentially re-wrote the law, reversing the trial judge and holding that "passive" involvement by the tractor-trailer was not sufficient to constitute "involvement" as a matter of law. They basically held that Smutzki's estate must prove some measure of "fault" by the truck driver in order for Smutzki's dependents to recover lost wages and medical expenses.

The judges did reject Auto Owners' attempt to re-try the issue of Smutzki's insurance.  She had sued her insurer, Dairyland, to confirm coverage and won, and Auto Owners had failed to timely intervene in that lawsuit.  Therefore, the judges concluded that Auto Owners could not defend the instant case by arguing that Smutzki had forfeited her right to PIP benefits by failing to purchase liability coverage on her bike.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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