Darcy Weidman v. Home-Owners Insurance Company

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

DARCY WEIDMAN, UNPUBLISHED

April 13, 2026

Plaintiff-Appellant, 11:06 AM

V No. 371332

Genesee Circuit Court

HOME-OWNERS INSURANCE COMPANY and LC No. 22-117836-NI

ANGELIA JULIANA BARDO,

Defendants-Appellees.

Before: SWARTZLE, P.J., and O’BRIEN and BAZZI, JJ.

BAZZI, J. (dissenting).

In this case arising out of a motor vehicle accident, plaintiff, Darcy Weidman, appeals as

of right the trial court’s stipulated order dismissing plaintiff’s claim for no-fault1 personal

protection insurance (PIP) benefits against defendant Home-Owners Insurance Company (Home-

Owners), with prejudice.2 Plaintiff further contests the trial court’s orders granting defendant

Angelia Juliana Bardo summary disposition of plaintiff’s negligence claims under MCR

2.116(C)(10) (no genuine issue of material fact), denying plaintiff summary disposition under

MCR 2.116(I)(2) (opposing party entitled to immediate judgment), and granting Home-Owners

summary disposition of plaintiff’s claim for underinsured motorist (UIM) benefits under MCR

2.116(C)(10). Because I would affirm in part, reverse in part, and remand for further proceedings,

I dissent.

1

MCL 500.3101 et seq.

2

Although this is a stipulated order, I note that plaintiff does not substantively contest the dismissal

of her PIP claim against Home-Owner. Rather, the referenced order is the order appealed as of

right because it constitutes a final order under MCR 7.202(6)(a)(i) and expressly preserved

plaintiff’s appellate rights concerning the trial court’s earlier rulings on various summary-

disposition motions, which plaintiff now challenges on appeal.

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I. BASIC FACTS AND PROCEDURAL HISTORY

On September 3, 2021, at approximately 9:00 a.m., plaintiff and Bardo were driving their

respective vehicles westbound on Crosby Road, a two-lane road with no middle turn lane, when

plaintiff’s right headlight area struck the rear driver’s side of Bardo’s vehicle. Plaintiff’s vehicle

came to rest on the road where the collision occurred, while Bardo’s vehicle spun around and came

to rest in her yard or driveway, facing the opposite direction. Plaintiff alleged that she sustained

serious injuries in the accident.

During her deposition testimony, Bardo asserted that on the day of the accident, she was

driving her Pontiac Grand Am to her house, which was the third house west of the intersection of

Genesee and Crosby Roads. According to Bardo, as she approached the Genesee-Crosby

intersection, she looked in her rearview mirror and did not see a vehicle behind her, turned left

onto the westbound lane of Crosby Road, and proceeded toward her residence. Bardo expressed

that, because her house was the third one from the intersection, she did not “have to speed up or

slow down very much to start turning” into her driveway. Bardo further recalled that as she started

the right-hand turn into her driveway, plaintiff rear-ended her. Bardo additionally noted that she

“probably . . .wasn’t completely stopped” as she turned, but was “going four miles per hour maybe

at the turn, three . . . . Not very fast.”

Contrastingly, plaintiff testified that she was driving her Chevrolet Traverse on Genesee

Road the day of the subject incident to her workplace, and turned left at the Genesee-Crosby

intersection onto the westbound lane of Crosby Road. At that time, according to plaintiff, it was

“clear and sunny,” and there was nothing obstructing her view.3 Plaintiff asserted that she was not

using, or glancing at, her phone, was “looking down the road,” and had both hands on the steering

wheel. Plaintiff detailed that, after turning onto Crosby Road, she started to accelerate, yet

remained below the posted speed limit of 45 miles per hour, when she noticed Bardo’s vehicle “at

a stop” in the middle of the westbound lane, “not very far off Genesee,” and their vehicles were

“close.” Per plaintiff, when she noticed that Bardo’s vehicle was stopped, she swerved left and

braked, but was unable to avoid rear-ending Bardo.

Plaintiff further expressed that she did not “slow [her] vehicle to a stop” to avoid the

collision because she did not know Bardo was stopped in the roadway as neither Bardo’s brake

lights nor her turn signal, were illuminated. Plaintiff contended that the absence of operable brake

lights or turn signal on Bardo’s stopped vehicle caused the accident, testifying that she could not

have done anything differently to avoid the collision. Bardo disputed this contention, stating that

she had not experienced any issue with her turn signals or brake lights, and that she knew her turn

signals were working at the relevant time.4

3

There is no dispute that the accident occurred in daylight, and there was no evidence of morning

glare, or any other condition that could have affected plaintiff’s ability to see the roadway.

4

There was conflicting testimony regarding whether Bardo admitted at the accident scene that her

turn signals were not working.

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Responding Police Officer John Jackson testified that plaintiff had a duty to stop if there

was an object in the road, and that it was a violation of Michigan law to drive a vehicle without

properly functioning brake lights or turn signals. Officer Jackson further expressed that he had

determined, using Google Earth, that the accident location was 412 feet west of the Genesee-

Crosby intersection. Officer Jackson explained that he did not issue a ticket to either driver

because he “couldn’t determine if the brake lights were actually out” on Bardo’s damaged vehicle.

He believed both parties were at fault for the accident.

Officer Jackson asserted that whether plaintiff maintained sufficient time to stop to avoid

the collision depended on several factors, including plaintiff’s speed, how close she was traveling

behind Bardo’s vehicle, and if Bardo “slammed on the brakes.” Officer Jackson additionally

testified as follows:

Q. Now, you were asked by the attorney why couldn’t someone stop in 412

feet, and you said it could be speed, could be slammed on brakes. You weren’t able

to give all the factors. But could one of the factors be brake lights not working and

the person not being able to perceive whether the other person was stopped?

A. Absolutely.

Q. And if their turn indicators weren’t working and they were stopping to

turn, the same would be true the person might not be able to perceive a person

turning, because they are stopping and turning without a turn indicator?

A. Yes.

Q. And is that why you didn’t issue tickets to either party because . . .you

felt both had fault in this incident.

A. Yes.

Officer Jackson did not offer an opinion regarding plaintiff’s vehicle speed, or whether Bardo’s

vehicle was turning, at the moment of the accident.

Plaintiff commenced the underlying action, asserting third-party negligence claims against

Bardo, and a breach-of-contract claim against Home-Owners for failing to pay certain first-party

PIP benefits, in addition to a claim for UIM benefits. Plaintiff asserted that Bardo was

presumptively negligent by operating her vehicle with no functional brake lights or turn signal, in

violation of MCL 257.697 and several other motor-vehicle statutes, which resulted in serious

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impairments of plaintiff’s body function. Plaintiff further contended that she was entitled to UIM

coverage for damages in excess of Bardo’s policy’s liability coverage.5

Bardo moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff was

presumptively negligent for violating MCL 257.627(1) by failing to maintain a speed that would

permit her to stop within an “assured, clear distance” of Bardo’s vehicle,6 and MCL 257.402(a) by

rear-ending Bardo’s vehicle.7 Bardo further asserted that plaintiff could not rebut her presumptive

negligence by invoking the sudden-emergency doctrine. Bardo additionally contended there was

no genuine factual dispute that plaintiff was not confronted with a sudden emergency when the

accident occurred, because a stopped vehicle on a road in a residential area was not an unusual or

unexpected occurrence, regardless of the operability of Bardo’s brake lights or turn signals. Bardo

also argued that her vehicle’s presence on the roadway was clearly visible to plaintiff for sufficient

time for plaintiff to avoid the collision, considering the accident occurred under clear and sunny

conditions, plaintiff had an unobstructed view of the road for 412 feet, and there was no evidence

that Bardo had stopped suddenly. Bardo advanced that reasonable minds could not differ that

plaintiff was more than 50% at fault for the accident, thereby precluding plaintiff from recovering

damages in tort under MCL 500.3135(2)(b).8 Home-Owners concurred with Bardo’s motion,

5

Bardo was a named insured on an automobile policy that provided liability coverage for bodily

injury up to $50,000 per person. Plaintiff had an automobile insurance policy issued by defendant

Home-Owners that provided UIM coverage up to $250,000 per person.

6

The assured-clear-distance statute, MCL 257.627(1), provides, in relevant part:

An individual operating a vehicle on a highway shall operate that vehicle at

a careful and prudent speed not greater than nor less than is reasonable and proper,

having due regard to the traffic, surface, and width of the highway and of any other

condition existing at the time. An individual shall not operate a vehicle on a

highway at a speed greater than that which will permit a stop within the assured,

clear distance ahead.

7

The rear-end collision statute, MCL 257.402(a), states, in pertinent part:

In any action, in any court in this state when it is shown by competent

evidence, that a vehicle traveling in a certain direction, overtook and struck the rear

end of another vehicle proceeding in the same direction, or lawfully standing upon

any highway within this state, the driver or operator of such first mentioned vehicle

shall be deemed prima facie guilty of negligence.

8

MCL 500.3135 of the no-fault act, MCL 500.3101 et seq., provides as follows:

(1) A person remains subject to tort liability for noneconomic loss caused

by his or her ownership, maintenance, or use of a motor vehicle only if the injured

person has suffered death, serious impairment of body function, or permanent

serious disfigurement.

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arguing that because plaintiff was not legally entitled to recover from Bardo, plaintiff was not

entitled to UIM benefits under her policy.

Plaintiff responded that she was entitled to summary disposition under MCR 2.116(I)(2).

Plaintiff asserted that a stopped vehicle in the middle of the road, with no activated brake lights or

turn signal, presented an unusual and unexpected circumstance, and that plaintiff had acted in a

reasonably prudent manner by taking evasive action once she perceived the hazard. Accordingly,

plaintiff argued, she confronted circumstances that enabled her to invoke the sudden-emergency

doctrine to overcome any presumed negligence. Plaintiff further contended that Bardo was

presumptively negligent when she stopped her vehicle in the middle of the road, with no activated

brake lights or turn signal, in violation of several motor-vehicle statutes, and that Bardo failed to

present sufficient evidence to rebut the presumption.

Following hearings on the parties’ respective motions, the trial court granted summary

disposition of plaintiff’s claims, concluding that the sudden-emergency doctrine did not apply to

excuse plaintiff’s negligence, and that plaintiff was more than 51% at fault for the accident, and

denied plaintiff’s motion for summary disposition. On November 13, 2023, the court entered an

order granting Bardo’s motion for summary disposition regarding plaintiff’s negligence claim

under MCR 2.116(C)(10) and denying plaintiff’s motion for summary disposition under MCR

2.116(I)(2). On November 15, 2023, the trial court issued an order granting Home-Owner’s

concurrence with Bardo’s motion for summary disposition and joinder regarding plaintiff’s UIM

claim, dismissing plaintiff’s UIM claim against Home-Owner, and similarly denying plaintiff’s

motion for summary disposition. On May 29, 2024, the trial court entered a stipulated order of

dismissal regarding plaintiff’s first-party PIP claim against Home-Owners stating that “this matter

is dismissed in its entirety, with prejudice, pursuant to the terms of the respective Release, without

costs of fees to any party.” This appeal ensued.

II. STANDARDS OF REVIEW

“This Court reviews de novo a trial court’s decision on a motion for summary disposition.”

White v Taylor Distrib Co, 275 Mich App 615, 619; 739 NW3d 132 (2007), aff’d 482 Mich 136

(2008). “A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.”

Cannon Twp v Rockford Pub Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015). As previously

explained by this Court:

MCR 2.116(C)(10) provides for summary disposition where there is no genuine

issue regarding any material fact, and the moving party is entitled to judgment or

partial judgment as a matter of law. A trial court may grant a motion for summary

(2) For a cause of action for damages under subsection (1) . . .all of the

following apply:

* * *

(b) Damages must be assessed on the basis of comparative fault, except that

damages must not be assessed in favor of a party who is more than 50% at fault.

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disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other

documentary evidence, when viewed in a light most favorable to the nonmovant,

show that there is no genuine issue with respect to any material fact. Initially, the

moving party has the burden of supporting its position with documentary evidence,

and, if so supported, the burden then shifts to the opposing party to establish the

existence of a genuine issue of disputed fact. Where the burden of proof at trial on

a dispositive issue rests on a nonmoving party, the nonmoving party may not rely

on mere allegations or denials in the pleadings, but must go beyond the pleadings

to set forth specific facts showing that a genuine issue of material fact exists.

Generally speaking, where the opposing party fails to present documentary

evidence establishing the existence of a material factual dispute, the motion is

properly granted. A genuine issue of material fact exists when the record, giving

the benefit of reasonable doubt to the opposing party, leaves open an issue upon

which reasonable minds might differ. Courts are liberal in finding genuine issues

of material fact. [White, 275 Mich App at 620 n 2 (quotation marks, citations, and

alteration omitted).]

“If, after careful review of the evidence, it appears to the trial court that there is no genuine issue

of material fact and the opposing party is entitled to judgment as a matter of law, then summary

disposition is properly granted under MCR 2.116(I)(2).” Lockwood v Ellington, 323 Mich App

392, 401; 917 NW2d 413 (2018).

To the extent the interpretation of plaintiff’s Home-Owners’ insurance policy is implicated,

“insurance policies are subject to the same contract construction principles that apply to any other

species of contract.” Rory v Continental Ins Co, 473 Mich. 457, 461; 703 NW2d 23 (2005)

(emphasis omitted). Therefore, “a court must construe and apply unambiguous contract provisions

as written.” Id.

III. NEGLIGENCE

The trial court erred in granting Bardo summary disposition of plaintiff’s negligence claims

under MCR 2.116(C)(10). “[N]egligence consists of four elements: (1) a duty owed by the

defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Cummins v

Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). “ ‘Duty’ is a legally recognized

obligation to conform to a particular standard of conduct toward another so as to avoid

unreasonable risk of harm.” Id. “A duty of care may arise from a statute, a contractual relationship,

or by operation of the common law, which imposes an obligation to use due care or to act so as

not to unreasonably endanger other persons or their property.” Id.

Plaintiff and Bardo each contend that the other was presumptively negligent for violating

certain Michigan motor-vehicle statutes.

[E]vidence of violation of a penal statute creates a rebuttable presumption of

negligence. This presumption may be rebutted by evidence of a legally sufficient

excuse for the statutory violation. Absent such excuse, the jury may infer

negligence on the basis of the violation. It is then for the jury to determine whether

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violation of the statute was a proximate cause of the accident. [Klanseck v

Anderson Sales & Serv, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986), citing Zeni

v Anderson, 397 Mich 117, 128-129; 243 NW2d 270 (1976).]

Whether a legally sufficient excuse exists to rebut the presumption of negligence is “determined

by the circumstances of each case.” Zeni, 397 Mich at 143. See also White, 275 Mich App at 621.

Accordingly, “when a court adopts a penal statute as the standard of care . . ., violation of that

statute establishes a prima facie case of negligence, with the determination to be made by the finder

of fact whether the party accused of violating the statute has established a legally sufficient

excuse.” Zeni, 397 Mich at 143. If a sufficient excuse for the statutory violation is found to exist,

“the appropriate standard of care then becomes that established by the common law.” Id. That is,

“an obligation to use due care or to act so as not to unreasonably endanger other persons or their

property.” Cummins, 283 Mich App at 692.

Satisfying the causation element of negligence requires the plaintiff to prove both “cause

in fact and legal (or ‘proximate’) cause.” Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d

296 (2004). To satisfy the cause-in-fact element, “a plaintiff is not required to negate all other

reasonable causation theories . . .[but] must present substantial evidence from which a jury may

conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would

not have occurred.” Wilson v Alpena Co Rd Comm, 263 Mich App 141, 150; 687 NW2d 380

(2004), aff’d 474 Mich 161 (2006). See also Craig, 471 Mich at 86-67. “To establish legal cause,

the plaintiff must show that it was foreseeable that the defendant’s conduct may create a risk of

harm to the victim, and that the result of that conduct and intervening causes were foreseeable.”

Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (quotation marks and citation

omitted). For this purpose, any presumptive negligence arising from a statutory violation must

also have been a proximate cause of the accident. Klanseck, 426 Mich at 86; Stahl v Bell, 276

Mich 37, 39; 267 NW 779 (1936).

“There may be more than one proximate cause of an injury.” Brisboy v Fibreboard Corp,

429 Mich 540, 547; 418 NW2d 650 (1988). “[T]wo causes frequently operate concurrently so that

both constitute a direct proximate cause of the resulting harm.” Id. (quotation marks and citation

omitted). “Thus, [a] defendant cannot escape liability for . . .negligent conduct merely because

the negligence of others may also have contributed to the harm caused.” Id. That is, “the mere

fact that some other cause cooperates with the negligence of the defendant to produce the injury

for which suit is brought does not relieve him from liability.” Camp v Wilson, 258 Mich 38, 42;

241 NW 844 (1932) (quotation marks and citation omitted). Rather, “[i]t is elementary that where

injury results from the concurrent negligence of two or more, each proximately contributing to the

result, recovery may be had against one or more, although but one satisfaction may be had.” Id.

(quotation marks and citation omitted). Generally, it is “for the jury to determine whether the

[statutory] violation was a proximate cause of the accident.” Klanseck, 426 Mich at 86.

In cases involving a motor vehicle accident, “[d]amages must be assessed on the basis of

comparative fault, except that damages must not be assessed in favor of a party who is more than

50% at fault.” MCL 500.3135(2)(b). The determination of the parties’ relative negligence presents

a question for the jury, unless reasonable minds could not differ on the issue. Rodriguez v Solar

of Mich, Inc, 191 Mich App 483, 488; 478 NW2 914 (1991).

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A. BARDO’S NEGLIGENCE

Plaintiff contends that Bardo was prima facie negligent with respect to the accident because

Bardo stopped her vehicle in the middle of the westbound lane of Crosby Road, with no working

brake lights or turn signal, in violation of several motor-vehicle statutes—particularly MCL

257.648(1) and (2) (a motor-vehicle operator must signal before stopping or turning from a direct

line, either by hand or by a mechanical or electrical signal device), and MCL 257.683(1) (a person

may not drive a motor vehicle “that is in such an unsafe condition as to endanger a person, or

that . . .is not at all times equipped with lamps and other equipment in proper condition”).9 “Absent

a statutory requirement, a driver has a duty to operate a vehicle with ‘ordinary and reasonable care

and caution.’ ” McDuffie v Neal, 21 NW3d 205, 206 (2025), quoting Zarzecki v Hatch, 347 Mich.

138, 141; 79 NW2d 605 (1956).10 As provided by the Michigan Supreme Court in Meyers v Rieck,

509 Mich 460, 471; 983 NW2d 747 (2022), once a duty is established, the pertinent inquiry is

whether the standard of care was breached. The standard of care in a negligence action may be

established by statute or legal regulation. Id. at 472. In Michigan, the violation of a statutory duty

will generally amount to negligence per se. Id. However, the breach of a safety or penal statute

establishes a rebuttable presumption of negligence, rather than negligence per se. Klinke v

Mitsubishi Motors Corp, 458 Mich 582, 592; 581 NW2d 272 (1998).

In the present case, there are genuine issues of material fact regarding whether Bardo

breached the standard of care set forth by the applicable motor-vehicle statutes, thereby giving rise

to a presumption of negligence, and whether she otherwise breached her common-law duty to use

reasonable care so as not to create an unreasonable risk of danger by stopping in the middle of the

road with no illuminated brake lights or turn signal.11 Plaintiff testified that Bardo’s vehicle was

stopped in the middle of the westbound lane with no illuminated brake lights or turn signal. Bardo,

however, asserted that she had not experienced any issues with her turn signals or brake lights, and

that she knew her turn signals were operating during the pertinent time period. Bardo’s alleged

admission in regard to the operability of her turn signal at the scene was further in dispute.

Moreover, the parties contested whether Bardo’s vehicle was completely stopped at the time of the

collision, given that plaintiff testified that Bardo’s vehicle was “at a stop,” while Bardo testified

that she only slowed down to three to four miles per hour. Courts “may not resolve factual disputes

or determine credibility on a summary disposition motion.” Burkhardt v Bailey, 260 Mich App

636, 646-647; 680 NW2d 453 (2004). Accordingly, the trial court properly denied plaintiff

9

Plaintiff also cites MCL 257.686(1), which requires that motor vehicles be equipped with rear

lamps that emits a visible red light plainly visible from a distance of 500 feet to the rear, and MCL

257.697(1), which requires that motor vehicles be equipped with rear stop lamps that emit red or

amber light when the brakes are applied.

10

“An order that is a final Supreme Court disposition of an application and that contains a concise

statement of the applicable facts and reasons for the decision is binding precedent.” Steele v

Winfield, 343 Mich App 394, 400; 997 NW2d 341 (2022) (quotation marks and citation omitted).

11

See Camp, 258 Mich at 42 (a driver has a duty of reasonable care when stopping on a roadway).

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summary disposition regarding the matter of Bardo’s negligence.12 See McDuffie, 21 NW3d at

206 (opining that “reasonable minds could differ on whether the truck’s turn signals were

functioning properly at the time of the incident,” considering the parties’ contrasting testimonies

concerning the operability of the truck’s turn signals, rendering summary disposition improper).

However, I disagree with defendants’ argument that the record did not support a finding

that Bardo’s alleged presumed negligence arising from her statutory violations did not proximately

cause the accident. As previously noted, plaintiff testified that after turning onto Crosby Road,

she began to accelerate, yet remained below the posted speed limit of 45 miles per hour, with both

hands on the steering wheel while “looking down the road,” when she saw Bardo’s vehicle was

“at a stop” in the middle of the road. Plaintiff asserted that she was unable to “slow [her] vehicle

to a stop” before the collision because she did not notice Bardo’s stopped vehicle until she was

“close,” after which plaintiff “swerved and hit the brake,” but could not avoid striking Bardo.

Plaintiff attributed the accident to the failure of Bardo’s brake lights and turn signal to alert her

that Bardo’s vehicle was stopped, and plaintiff insisted she could not have done anything

differently to avoid it.13 Further, contrary to defendants’ contentions, the evidence did not

establish, as a matter of law, that plaintiff had 412 feet to perceive the hazard presented by Bardo’s

vehicle and adjust her speed accordingly. While it was undisputed that the accident occurred 412

feet from the Genesee-Crosby intersection, that does not necessarily mean that plaintiff was

traveling 412 feet behind Bardo when she turned onto Crosby Road, or when Bardo stopped on

the roadway. Again, plaintiff testified that she did not notice Bardo’s stopped vehicle until she

was “close” to it. Further, Officer Jackson identified the inoperability of a vehicle’s brake lights

or turn signal as factors that may affect a following motorist’s ability to perceive the danger

presented by a stopped vehicle. Consequently, there was significant, if limited, evidentiary support

for plaintiff’s proffered reason for colliding with the rear of Bardo’s vehicle.

Additionally, reasonable minds could differ regarding whether, under the circumstances,

plaintiff could have timely perceived the hazard presented by Bardo’s stopped vehicle, with no

illuminated brake lights or turn signal, in time to adjust her speed or direction to avoid rear-ending

Bardo.14 That is, if plaintiff is believed, the absence of any warning lights was, at least, a

contributing factor leading to, or a proximate cause of, the accident and plaintiff’s injuries. See

Rodriguez, 191 Mich App at 488 (“[P]roximate cause is an issue for the jury, provided that there

is evidence from which reasonable persons could draw a fair inference that the injury was caused

by negligence.”) Therefore, summary disposition on the issues of Bardo’s presumptive

negligence, and whether her negligence proximately caused the accident, was improper.

12

However, for purposes of plaintiff’s summary-disposition motion, Bardo accepted that her

vehicle was stopped in the middle of the road with no illuminated brake lights or turn signal.

13

There was no evidence that plaintiff was speeding, distracted, or otherwise negligent.

14

“Until a hazard is perceived, or until a hazard would have been apparent to a reasonable man,

considering pertinent surrounding circumstances of traffic and terrain, a driver has no duty to guard

against or anticipate an unknown hazard.” Briggs v Knapp, 513 Mich 857, 857; 995 NW2d 356

(2023) (quotation marks and citation omitted). See also McDuffie, 21 NW3d at 207-208.

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B. PLAINTIFF’S NEGLIGENCE

Defendants argue that plaintiff was negligent, as a matter of law, with regard to the accident

because she violated MCL 257.402(a), the rear-end collision statute, and MCL 257.627(1), the

assured-clear-distance statute. I opine that factual issues exist regarding the applicability of the

sudden-emergency doctrine to rebut plaintiff’s presumed negligence.

In the instant matter, there was evidence to substantiate the contention that plaintiff violated

the cited statutes. Plaintiff’s testimony that she was traveling westbound on Crosby Road but

failed to observe Bardo’s stopped vehicle until too “close” to avoid rear-ending Bardo itself fairly

indicated that plaintiff violated MCL 257.402(a). That testimony could also reasonably establish

that plaintiff failed to maintain a speed that would have permitted her to stop within an assured,

clear distance of Bardo’s vehicle, in violation of MCL 257.627(1). See Amick v Baller, 102 Mich

App 339, 343; 301 NW2d 530 (1980) (drivers are required to operate their vehicles at speeds that

permit them to maintain an assured, clear distance from other vehicles in light of road conditions

and other circumstances); MCL 257.643(1) (“The operator of a motor vehicle shall not follow

another vehicle more closely than is reasonable and prudent, having due regard for the speed of

the vehicles and the traffic upon and the condition of the highway.”).

However, the inquiry does not end there. Instead, “when a court adopts a penal statue as

the standard of care in an action for negligence, violation of that statute establishes a prima facie

case of negligence, with the determination to be made by the finder of fact whether the party

accused of violating the statute has established a legally sufficient excuse.” Zeni, 397 Mich at 143.

See also id. at 129-130. Accordingly, this Court has recognized, “Under the rear-end collision

statute a rebuttable presumption arises that the offending driver is prima facie guilty of

negligence.” White, 275 Mich App at 621 (quotation marks and citation). The Michigan Supreme

Court has likewise held that “a violation of the assured-clear-distance statute constitutes

negligence per se.” Vander Laan v Miedema, 385 Mich 226, 231; 188 NW2d 564 (1971). But

application of the assured-clear-distance statute “is subject to qualification by the test of due or

ordinary care, exercised in light of the attending conditions.” Id. (quotation marks and citation

omitted). Plaintiff, therefore, is entitled “to come forward with evidence rebutting the presumption

of negligence” stemming from her statutory violations. Zeni, 397 Mich App at 143.

Plaintiff argues that confronting Bardo’s stopped vehicle in the middle of the westbound

lane of Crosby Road, with no activated taillights or turn signal, created a sudden emergency

sufficient to excuse any presumptive negligence on her part for rear-ending, or failing to maintain

an assured, clear distance of, Bardo’s vehicle. “The sudden-emergency doctrine is a judicially

created principle.” Vsetula v Whitmyer, 187 Mich App 675, 680; 468 NW2d 53 (1991). The

doctrine arises “when a collision is shown to have occurred as the result of a sudden emergency

not of the [driver’s] own making.” Vander Laan, 385 Mich at 231. It is “a logical extension of

the ‘reasonably prudent person’ standard, with the question being whether the defendant acted as

a reasonably prudent person when facing the emergency, giving consideration to all the

circumstances surrounding the accident.” White, 275 Mich App at 622. “To come within the

purview of the sudden-emergency doctrine, the circumstances surrounding the accident must

present a situation that is unusual or unsuspected.” Id. As explained by this Court:

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The factual pattern is “unusual” if the facts present in the case vary from the

everyday traffic routine confronting a motorist. Thus, a blizzard or other extreme

weather condition may cause such an unusual driving environment that the normal

expectations of due and ordinary care are modified by the attenuating factual

conditions. “Unsuspected” facts are those which may appear in the everyday

movement of traffic, but which take place so suddenly that the normal expectations

of due and ordinary care are again modified by the attenuating factual conditions.

[Vsetula, 187 Mich App at 681, quoting Amick, 102 Mich App at 341-342.]

I agree with defendants that the record did not indicate the “unusual” prong of the sudden-

emergency doctrine was present in this case. “Unusual” in this sense is “typically associated with

a phenomenon of nature.” Vander Laan, 385 Mich at 232. It is undisputed that the subject accident

occurred in daylight, in clear and dry conditions, and that plaintiff had an unobstructed view of the

roadway. See id. at 232-233 (“The record . . .reveals that the accident occurred during the daylight

hours on a dry, paved highway,” precluded “the possibility that the surrounding circumstances

made the situation ‘unusual.’ ”) However, there was a genuine factual dispute regarding whether

plaintiff was suddenly confronted with “unsuspected facts,” thereby implicating the sudden-

emergency doctrine.

“Unsuspected” . . .connotes a potential peril within the everyday movement

of traffic. To come within the narrow confines of the emergency doctrine as

“unsuspected” it is essential that the potential peril had not been in clear view for

any significant length of time, and was totally unexpected. A good example of this

can be seen in McKinney v Anderson . . . ,[373 Mich 414; 129 NW2d 851 (1964)]

where [the] defendant rear-ended a plaintiff’s car which had stopped while pushing

a disabled vehicle on the highway. Coming over the crest of a hill, [the] defendant

first saw [the] plaintiff’s taillights when he was 400 feet away. However, [the]

defendant did not clearly see the peril of [the] plaintiff’s stopping until he was about

100-200 feet away, at which point it was too late to avoid a collision under the

circumstances. Furthermore, the failure of the plaintiff to signal that he was

stopping, coupled with the surrounding darkness, made the subsequent peril totally

unexpected to the defendant. [Vander Laan, 385 Mich at 232 (emphasis added).]

But see Hill v Wilson, 209 Mich App 356, 357-358; 531 NW2d 744 (1995) (the sudden-emergency

doctrine did not excuse any presumed negligence for hitting the rear end of a vehicle that braked

suddenly in rush-hour traffic, because sudden, unanticipated braking is expected during rush hour).

Applying these standards to the instant matter, and viewed in the light most favorable to

plaintiff, reasonable minds could differ regarding whether the condition confronting plaintiff

constituted a sufficiently unsuspected peril to fall within the scope of the sudden-emergency

doctrine. A stopped vehicle on a road, preparing to execute a turn, is undoubtedly a common

occurrence, and therefore would not be unexpected in and of itself. And this case involved Crosby

Road, a two-lane road with houses along it, such that it was reasonable to expect that a driver may

stop, or slow down, in order to turn into a driveway, as Bardo did. Further, there was no evidence

that Bardo stopped her vehicle suddenly. To the contrary, Bardo testified that, after turning onto

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Crosby Road, she traveled westbound on Crosby toward her house, which was only the third house

on the street, such that she did not “have to speed up or slow down very much to start turning” into

her driveway. Bardo additionally explained that she slowed down to three or four miles per hour

before she started to turn right into her driveway, at which time plaintiff struck her. Plaintiff also

asserted that she was “not very far off Genesee” when she first noticed Bardo’s vehicle “at a stop”

in the middle of the westbound lane, and their vehicles were “close.”

But plaintiff’s testimony indicated that she did not perceive Bardo’s stopped vehicle in

time to avoid the collision, not because Bardo stopped suddenly or because plaintiff was not paying

attention, but because Bardo’s brake lights or turn signal were not activated.15 Bardo’s allegedly

stopped vehicle, with no operable brake lights or turn signal, in the middle of the roadway,

naturally created a potential hazard for motorists following that vehicle. The clear purpose of

brake lights and turn signals is to warn following motorists so they can adjust their speed and

maintain an assured and clear distance to prevent a collision.16 Therefore, a motorist trailing

another should certainly expect to see brake lights or a turn signal if the leading vehicle is slowing

or stopping to execute a turn. As Officer Jackson confirmed, the lack of brake lights or a turn

signal could “absolutely” affect the following driver’s ability to timely perceive that a vehicle had

slowed or stopped to make a turn.

Although it would not be entirely unexpected for a vehicle traveling in everyday traffic to

stop to make a turn without displaying a turn signal,17 in the present case, the alleged hazard

confronting plaintiff was Bardo’s stopped vehicle in the middle of the road, without any warning

lights, providing no indication that the vehicle was engaged in anything other continued forward

travel as plaintiff accelerated toward it. This condition potentially affected plaintiff’s ability to

timely perceive the hazard and adjust her driving as necessary to avoid colliding with Bardo.

Therefore, in this context, Bardo’s vehicle—when plaintiff encountered it—could reasonably

qualify as wholly unexpected.

Additionally, contrary to defendants’ contention, reasonable minds could differ regarding

whether the potential hazard presented by Bardo’s stopped vehicle was in plaintiff’s “clear view

for a significant length of time.” Vander Laan, 385 Mich at 232. It is uncontested that the accident

occurred in daylight, in clear and sunny conditions, and that plaintiff’s view was unobstructed as

she drove 412 feet on Crosby Road before collision occurred, such that it could be reasonably

inferred that plaintiff had a clear view of the roadway for significant time before the accident. But

not necessarily. Rather, that issue presents questions of fact for a jury to resolve, including

consideration of the effect of inoperable brake lights or turn signals on plaintiff’s ability to timely

perceive Bardo’s slowed or stopped vehicle, the distance plaintiff was traveling behind Bardo

15

As previously noted, plaintiff testified that she had both hands on the steering wheel, was

“looking down the road,” and was not using, or glancing at, her phone.

16

See Amick, 102 Mich App at 343 (“The purpose for giving the signal is obviously to warn other

motorists of an intent to change directions with the vehicle being driven.”)

17

See Spillers v Simons, 42 Mich App 101, 106; 201 NW2d 374 (1972) (a plaintiff’s failure to

give a signal before turning, without more, “was not the type of unexpected emergency that would

bring into play the emergency doctrine”).

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when Bardo started slowing, and plaintiff’s own vehicle speed. Given these factual questions

pertaining to the application of the sudden-emergency doctrine, summary disposition regarding

the matter of plaintiff’s own negligence was unwarranted. Further, even if plaintiff was

presumptively negligent as a matter of law, this would not preclude plaintiff’s negligence claims

against Bardo, because plaintiff’s and Bardo’s comparative negligence with respect to the accident

remains unsettled, as discussed below. Although there was sufficient evidence to establish that

plaintiff breached her duty to keep an assured, clear distance of Bardo’s vehicle, or to keep a proper

lookout and to avoid a rear-end collision, there was additionally adequate evidence to demonstrate

that Bardo breached her duty to properly signal that she was slowing or stopping to turn, as

addressed below. See Rodriguez, 191 Mich App at 488 (“The standards for determining the

comparative negligence of a plaintiff are indistinguishable from the standards for determining the

negligence of a defendant, and the question of a plaintiff’s own negligence for failure to use due

care for his own safety is a jury question unless all reasonable minds could not differ . . . . ”). See

also MCL 600.6304.

C. MCL 500.3135(2)(b)

Plaintiff argues the matter of the parties’ comparative fault could not be properly resolved

on summary disposition because a reasonable juror could find that Bardo was more than 50% at

fault for the accident. I agree.

“ ’Michigan’s no-fault act generally abolishes tort liability arising from the ownership,

maintenance, or use of a motor vehicle.’ ” Miclea v Cherokee Ins Co, 333 Mich App 661, 667;

963 NW2d 665 (2020), quoting Grange Ins Co v Lawrence, 494 Mich 475, 490; 835 NW2d 363

(2013). Under MCL 500.3135(1), however, “[a] person remains subject to tort liability for

noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if

the injured person has suffered death, serious impairment of body function, or permanent serious

disfigurement.” MCL 500.3135(1). As noted, however, “[d]amages must be assessed on the basis

of comparative fault, except that damages must not be assessed in favor of a party who is more

than 50% at fault.” MCL 500.3135(2)(b) (emphasis added). That is, “the liability of each person

shall be allocated . . .by the trier of fact and . . .in direct proportion to the person’s percentage of

fault.” MCL 600.2957(1). In determining the parties’ comparative fault, “the trier of fact shall

consider both the nature of the conduct of each person at fault and the extent of the causal relation

between the conduct and the damages claimed.” MCL 600.6304(b)(2).

A review of the record indicates that reasonable minds could differ on the issue of the

parties’ comparative fault. While a reasonable juror may conclude that plaintiff, by failing to

maintain a proper lookout and an assured, clear distance behind Bardo’s vehicle, bore most of the

responsibility for the accident, a reasonable juror may also resolve that Bardo was most at fault by

stopping in the middle of her lane with no illuminated brake lights or turn signal. Or, a reasonable

juror could conclude that plaintiff and Bardo were equally at fault. Therefore, as plaintiff contends,

because reasonable minds could differ regarding whether plaintiff, or Bardo, was at greater fault

for the collision, MCL 500.3135(2)(b) did not compel granting summary disposition in defendants’

favor. See McDuffie, 21 NW3d 208 (“Because reasonable minds could differ on which driver was

more at fault for the crash, MCL 500.3135(2)(b) does not bar recovery for plaintiff.”)

IV. UNDERINSURED MOTORIST BENEFITS

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The trial court further erred by granting summary disposition of plaintiff’s claim for UIM

benefits against Home-Owners. “[U]nderinsured-motorist coverage is not required by Michigan

law, and the terms of coverage are controlled by the language of the contract itself, not by statute.”

Dawson v Farm Bureau Mut Ins Co, 293 Mich App 563, 568; 810 NW2d 106 (2011).

Accordingly, “ ’the scope, coverage, and limitations of underinsurance protection are governed by

the insurance contract and the law pertaining to contracts.’ ” Id. at 568, quoting Mate v Wolverine

Mut Ins Co, 233 Mich App 14, 19; 592 NW2d 379 (1998).

Plaintiff’s policy under Home-Owners provides, in pertinent part:

We will pay compensatory damages, including but not limited to loss of

consortium, any person is legally entitled to recover from the owner or operator of

an underinsured automobile because of bodily injury sustained by an injured

person while occupying an automobile that is covered by SECTION II –

LIABILITY COVERAGE of the policy.

Accordingly, plaintiff would be entitled to UIM benefits under her policy if she were “legally

entitled to recover” from Bardo. Home-Owners contends that it could not be liable for UIM

benefits because no genuine issues of material fact existed regarding whether plaintiff was

presumptively negligent, and more than 50% at fault for the accident, and thus barred from

recovering damages under MCL 500.3135(2)(b). However, because there is a genuine factual

dispute concerning the parties’ relative negligence, the issue of whether plaintiff was legally

entitled to recover for her accident-related injuries from defendants was, likewise, not properly

resolved on summary disposition. For the reasons stated, I would affirm the underlying orders to

the extent they deny plaintiff’s motion for summary disposition, reverse the orders to the extent

they grant summary disposition of plaintiff’s claims, and remand for further proceedings. I

therefore respectfully dissent.

/s/ Mariam S. Bazzi

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