Norman Levander v. Home Owners Insurance Company

STATE OF MICHIGAN

COURT OF APPEALS

NORMAN LEVANDER, UNPUBLISHED

June 18, 2015

Plaintiff-Appellant,

v No. 320101

Genesee Circuit Court

HOME OWNERS INSURANCE COMPANY, LC No. 11-096786-NF

Defendant-Appellee,

and

PROGRESSIVE MICHIGAN INSURANCE

COMPANY,

Defendant.

Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ.

PER CURIAM.

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

seq., plaintiff Norman Levander sought personal protection insurance (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 motorcycle he was operating crashed

upon exiting a highway. Home Owners had denied plaintiff’s claim for PIP benefits, asserting

that the motorcycle accident and resultant injuries did not involve 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 behind plaintiff’s motorcycle,

tailgating him at an excessive speed, 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 disposition in favor of Home

1

Plaintiff also claimed that perhaps two motor vehicles were involved in the accident, one that

swung over from a distant lane and one that was directly behind his motorcycle.

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Owners on the basis that the insurer of this motor vehicle, defendant Progressive Michigan

Insurance Company (Progressive), was the higher priority insurer under MCL 500.3114(5).

Progressive, which is not a party to this appeal, had been granted summary disposition because

plaintiff failed to give notice to or file suit against Progressive within the one-year statute of

limitations in MCL 500.3145. On appeal, plaintiff, while agreeing with the trial court that a

genuine issue of material fact exists in regard to whether the alleged tailgating motor vehicle was

involved in or caused the accident, argues that a similar factual issue exists in connection to the

possible involvement of a second motor vehicle. As an alternative 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 caused 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 tailgating 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 for 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 exit, 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 looked 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 and “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 ramp, rather than try to continue on

the exit ramp, as he did not want to get hit from behind and “end up getting knocked off and

rolling under” the car. Once plaintiff 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 motorcycle, so he veered off the road in an effort to avoid a collision.

Plaintiff did not recall being pushed from behind or knocked off 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-fault motor vehicle insurer was

Progressive. According to Sumpter’s deposition testimony, on the day of the accident, the traffic

was congested and she was approximately a car length or less behind plaintiff’s motorcycle as

her vehicle and the motorcycle entered the exit ramp off of I-75. Sumpter testified that her car

and plaintiff’s motorcycle were both slowing down as they entered the exit, traveling between 45

and 60 miles per hour. Sumpter, however, believed that plaintiff’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 stopped 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 to assist plaintiff, indicated that,

after he regained consciousness, plaintiff stated, “I took my eyes off the road.” Sumpter did not

observe anything that might have caused plaintiff to take evasive action, never sensed that she

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was going to collide with plaintiff’s motorcycle at any time, and 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 the 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 tailgated, 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 witness, the report gave no indication

whatsoever that Sumpter had been traveling directly behind plaintiff’s motorcycle. Plaintiff was

transported to Genesys Regional Medical Center for treatment, and an associated medical report

indicated:

[Plaintiff] states he was riding and looked behind him and he felt there

was a car coming closely behind him. He states while looking behind 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 two months of the accident,

made a claim for PIP benefits from Home Owners, his no-fault motor vehicle insurer, asserting

that he was forced off of the exit ramp by an unidentified motor vehicle. Given her identification

as a witness on the accident report, Home Owners conducted an interview of Sumpter about the

accident. She told an adjustor that she was driving “right behind” plaintiff, “probably a couple

feet,” that her vehicle never made contact with plaintiff’s motorcycle, 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 not involve a motor vehicle, as necessary to be eligible for PIP

benefits in regard to injuries incurred while operating a motorcycle. The notice made no mention

of Sumpter’s statements to the adjuster, nor was there any indication that PIP benefits were being

denied on the basis that another insurer had priority in providing 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 vehicular

involvement, I contacted the witness listed on the . . . accident report, Ms. Camille

Sumpter. The . . . [report] lists her as merely a witness and does 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 denied following

the vehicle closely when I contacted her, and because Defendant Home-Owners

represented that the Sumpter vehicle was not involved, I continued to believe that

an unidentified vehicle ran Mr. Levander off the road.

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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, plaintiff filed the instant

action against Home Owners, seeking recovery of PIP benefits under 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 benefits against

Sumpter’s insurer Progressive. Plaintiff amended the complaint on the basis of Sumpter’s

deposition testimony elicited during the litigation, which revealed 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 been involved in the accident. On

Progressive’s motion for summary disposition, the trial court dismissed Progressive, concluding

that plaintiff’s suit against Progressive was time-barred. More specifically, the court dismissed

the claim against Progressive because plaintiff admittedly failed to provide notice of his claim to

or file suit against Progressive for PIP benefits within one year 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 paying 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 pay benefits for

accidental bodily injury arising out of the ownership, operation, 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 purposes 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 benefits

2

MCL 500.3145(1) provides, in pertinent part:

An action for recovery of personal protection insurance benefits payable

under this chapter for accidental bodily injury may not be commenced later than 1

year after the date of the accident causing the injury unless written 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 protection insurance

benefits for the injury. . . . .

3

We note that a “motorcycle insurer is never required to pay PIP benefits through the motorcycle

policy.” Perkins v Auto-Owners Ins Co, 301 Mich App 658, 665-666; 837 NW2d 32 (2013).

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when his or her motorcycle is involved in an accident that arose 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 involvement of a motor vehicle.

Home Owners took the position that there was no genuine issue of material fact that there was a

complete absence of a causal connection between plaintiff’s injuries and the operation or use of a

motor vehicle; therefore, it had no obligation to provide PIP benefits to plaintiff. Alternatively,

Home Owners argued that it was undisputed that Sumpter’s vehicle was the only vehicle directly

behind plaintiff at the time of the accident, and thus, if a motor 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 benefits at all, Progressive, Sumpter’s insurer, was the higher

priority insurer under MCL 500.3114(5). MCL 500.3114 provides in relevant part as follows:

(1) Except as provided in subsections (2), (3), and (5), a personal

protection insurance policy described in section 3101(1) applies to accidental

bodily injury to the person named in the policy, the person's spouse, 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 motor vehicle

while an operator or passenger of a motorcycle shall claim personal protection

insurance benefits from insurers in the following order of priority:

(a) The insurer of the owner or registrant of the motor vehicle involved in

the accident. [ostensibly Progressive]

(b) The insurer of the operator of the motor vehicle involved in the

accident. [ostensibly Progressive]

(c) The motor vehicle insurer of the operator of the motorcycle involved in

the accident. [Home Owners]

(d) The motor vehicle insurer of the owner or registrant of the 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 whether 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 exceptions 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 vehicle must claim no-fault

benefits.” Id. Home Owners’ position was that, assuming the sufficient involvement of

Sumpter’s motor vehicle, thereby triggering MCL 500.3114(5), Progressive, and not Home

Owners, would be liable for plaintiff’s PIP benefits. Home Owners argued that regardless of

whether a motor vehicle was involved in or caused the accident, it was entitled to summary

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disposition – if there was no motor vehicle involvement, MCL 500.3105(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 genuine 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. With 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 language in MCL 500.3114(5), given that

Sumpter’s motor vehicle and any other potentially-involved vehicle 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 equitably estopped from 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 similar reasons, plaintiff also

contended that Home Owners had waived a priority argument on the basis of the “mend the

hold” doctrine.4

The trial court concluded that evidence sufficient to create an issue of fact existed with

respect to whether the accident involved or arose out of the operation or use of Sumpter’s motor

vehicle. However, the trial court further ruled:

Pursuant to MCL 500.3114(5)(a), a timely filed claim against the Sumpter

vehicle would have survived a motion for summary disposition. Plaintiff’s failure

to timely file the claim against the carrier for the Sumpter vehicle 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 GRANTED in favor

of Home Owners . . . with respect to plaintiff’s claim for first 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 stated, good faith requires that the company shall

fully apprise the insured of all the defenses it intends to rely upon, and its failure

to do so is, in legal effect, a waiver, and estops it from maintaining any defenses

to an action on the policy other than those of which it has thus given notice.

We note that in Kirschner v Process Design Assoc, Inc, 459 Mich 587, 593-595; 592 NW2d 707

(1999), the Supreme Court discussed various limitations on the principle espoused in Smith.

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It does not appear that the trial court gave any consideration to plaintiff’s arguments

regarding equitable estoppel, the “mend the hold” doctrine, or the claim that the Sumpter vehicle

was not identifiable prior to the expiration of the one-year statute 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 questions of law, including the proper interpretation of a statute.

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

B. SUMMARY DISPOSITION PRINCIPLES – 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 moving 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)(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. 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. The trial court is not permitted to

assess credibility, weigh the evidence, or resolve factual disputes, 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 disposition under

MCR 2.116(C)(10). [Citations and quotation marks omitted.]

C. RULES OF STATUTORY CONSTRUCTION

In Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013), the

Michigan Supreme Court recited the rules governing statutory construction:

When interpreting a statute, we follow the established rules of

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 given 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 exists in the

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language of the statute is it proper for a court to go beyond the 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 injuries involved or arose out of

the operation or use of Sumpter’s motor vehicle; this conclusion does not encompass the

purported “second” motor vehicle, of which there was insufficient evidence relative to causation.

We initially tackle the question regarding the relevancy of whether a genuine issue of material

fact existed, given the priority rules in MCL 500.3114(5). Were 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 analysis would be complete, as plaintiff would not be entitled to PIP

benefits from Home Owners under MCL 500.3105(1). Summary dismissal in favor of Home

Owners would be proper in that setting. Similarly, if the trier of fact following trial were to

make that same finding, Home Owners would be entitled to a judgment 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 involved or arose out of the operation or

use of Sumpter’s motor vehicle, 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 would place Progressive ahead of

Home Owners, making Progressive fully responsible for all PIP payments. However, as

indicated above, Progressive can no longer be held legally obligated to pay PIP benefits to

plaintiff because plaintiff failed to commence an action against Progressive and failed to give a

written notice of injury to Progressive within one year after the 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, registrant, or operator of any involved

motor vehicle in order to comply with MCL 500.3114(5). Plaintiff maintains that he was unable

to identify Sumpter’s motor vehicle in relationship to pursuing a claim against her insurer,

Progressive, within the one-year 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 motorcycle 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 slammed 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 vehicle, its driver, or the insurer, if

any. The operator of the motorcycle 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 any one of the four possible

entities listed in MCL 500.3114(5)(a)-(d) (insurer of motor vehicle’s owner or registrant; insurer

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of motor vehicle’s operator; motor vehicle insurer of motorcycle’s operator; motor vehicle

insurer of motorcycle’s owner or registrant).

West American and Farm Bureau engaged in a priority dispute, and 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 conclusively 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 vehicle actually been identifiable, that

insurer would clearly have had priority in providing PIP benefits 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 identified in this case[,]” leaving the Court to determine whether the

plaintiff’s own insurer, West American, or the MACF-assigned insurer, 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, would be liable

under one of the exceptions in MCL 500.3114(1), namely MCL 500.3114(5). But,

because that insurer is unidentified, the priority dispute remains between

plaintiff's insurer and 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 NW2d 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 protection insurance benefits.

We hold that the analytical framework from Frierson is equally applicable here, such

that, if plaintiff could not identify Sumpter’s vehicle under the 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 500.3145(1), Home Owners can be

held liable to pay PIP benefits.6 In its ruling, the trial court simply concluded that “[p]laintiff’s

5

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

“[T]he Legislature, in its broader purpose, intended to provide 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 the involved vehicle is covered 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 accident and injuries involved or arose

out of the operation or use of Sumpter’s motor vehicle.

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failure to timely file the claim against . . . [Progressive] does not allow plaintiff to seek damages

against the next insurer in priority [Home Owners] under MCL 500.3114(5).” The trial court did

not appear to entertain or consider, under the facts and circumstances surrounding this case,

whether Progressive was identifiable as a higher priority insurer 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 identifiable before the

limitations period elapsed, and it rejects the equitable estoppel and waiver arguments, Home

Owners will be entitled to summary dismissal, subject, of course, to any appeal of the court’s

decisions. If the trial court determines that Sumpter/Progressive was not identifiable before the

limitations period expired, or that plaintiff’s equitable estoppel or waiver argument is sound and

applicable, the case is to proceed to trial on the question whether the accident involved or arose

out of the use or operation of Sumpter’s motor vehicle, as there is a genuine issue of material fact

on the matter for the reasons that we now discuss.

In Detroit Med Ctr, this Court discussed the level of a motor vehicle’s involvement

sufficient to satisfy MCL 500.3105(1):

There is no “iron-clad rule” as to what level of involvement is sufficient

under MCL 500.3105. However, 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. The injury must

be foreseeably identifiable with the normal use, maintenance and ownership of the

vehicle. The causal connection between the injuries and the motor vehicle cannot

be extended to something distinctly remote. Moreover, the injuries must be more

than tangentially related to the use of an automobile to trigger 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 and the car is

established. For a motor vehicle to be involved in an accident, it must actively, as

opposed to passively, contribute to the accident, and have more than a random

association with the accident scene. [T]here must be some activity, 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.

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In Frierson, as indicated above, this Court determined that the motor vehicle was

involved in the motorcycle accident, where “[t]he deposition testimony established that the

motor vehicle . . . turn[ed] left into the lane occupied by the motorcycle, causing the motorcycle

operator to brake to avoid hitting the motor vehicle.” Frierson, 261 Mich App at 736-737.

Taking into consideration the evidence placing Sumpter’s car directly behind plaintiff’s

motorcycle immediately preceding the accident, the deposition testimony by plaintiff revealing a

direct causal connection, the statement by Sumpter to Home Owners’ 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, and plaintiff’s statement to treating

medical personnel about the precipitating 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 accident, 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 connection was more than incidental,

fortuitous, or but for; showed injuries that were foreseeably identifiable with the normal use of

Sumpter’s vehicle; showed a causal connection that was not distinctly 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, contributed to the accident that went beyond

a random association with the accident scene. Indeed, plaintiff’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 applied, and the trier of fact finds that Sumpter’s motor vehicle was

involved in and caused the accident and injuries, plaintiff will be entitled to PIP benefits from

Home Owners on the establishment of related losses.

With respect to plaintiff’s argument that the trial court improperly limited its ruling to the

possible involvement of Sumpter’s vehicle, where, according to plaintiff, the evidence 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 Sumpter’s motor vehicle directly

behind plaintiff’s motorcycle, and plaintiff’s own testimony definitively 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 she had been traveling right behind plaintiff for “maybe a

minute,” this testimony did not create a genuine issue of material fact regarding a causal

connection between the accident and a purported second car. Plaintiff himself 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. Sumpter’s testimony perhaps

creates a factual dispute concerning the existence of a second car, but, in light of plaintiff’s

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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 part, the accident for which plaintiff seeks PIP benefits.8

III. CONCLUSION

We remand for the trial court to entertain the issue concerning whether Sumpter’s motor

vehicle was identifiable within the one-year statute of limitations, MCL 500.3145, and, if the

court determines that it was identifiable, to address whether equitable estoppel or waiver

principles nevertheless preclude Home Owners from arguing the issue 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 out of the operation or use of

Sumpter’s motor vehicle.

Reversed and remanded for further proceedings. We do not retain jurisdiction. Having

prevailed on appeal, plaintiff is awarded taxable costs pursuant to MCR 7.219.

/s/ William B. Murphy

/s/ Cynthia Diane Stephens

/s/ Michael F. Gadola

8

The responding police officer’s vague recollection that plaintiff 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 the opinion of plaintiff’s expert, who averred that a “second” car

was “actively involved as a cause” of the accident, as it is effectively a legal conclusion and one

that is not supported by the record; it does not create a genuine 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 question 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”).

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