Court rules Progressive must pay no fault benefits; does not have to pay fees.
Mary McCormick sued Progressive Michigan after her insurer failed to pay PIP benfits arising out of a bone infection and hip fracture. McCormick had fractured her leg in 1968 and developed a low grade infection at the site. The infection was not diagnosed until July of 2007, when treatment that included hollowing out the tibia, was initiated.
In December of that year, as she was getting out of her car, McCormick felt a snap and pain that turned out to be her hip fracturing. Her surgeon testified that the bone infection ("osteomyelitis") had caused her to avoid using the leg, which likely weakened the hip, creating stress fractures that displaced as she shifted weight to exit the vehicle.The Court of Appeals held, unanimously, that the fracture arose out of "the use, ownership or operation" of a motor vehicle and therefore the related treatment expenses were covered by no fault personal injury protection. Nevertheless, the Court did not award attorneys fees against Progressive because it deemed Progressive's defense not to have been "unreasonable," given the surgeon's testimony that the fracture could have occurred while McCormick was getting up from her couch.