Phyllis Scott v. State Farm Mutual Automobile Insurance Company

In this auto accident case, plaintiffs seek first-party personal protection insurance benefits
for the cost of cholesterol medication for Kristen Krohn (Krohn). The Ingham county probate
court denied defendant's motion for summary disposition. Defendant appeals, by leave granted,
the circuit court's denial of defendant's application for leave to appeal the probate court ruling.
We affirm.

Krohn (f.k.a. Kristin Scott2) was involved in a motor vehicle accident in 1981, three days
prior to her 18th birthday. She sustained a brain injury and other injuries. Over the years
following the accident, Krohn received personal protection insurance benefits from State Farm
for her care, recovery and rehabilitation.

Plaintiffs first became aware that Krohn had a high cholesterol problem in or around
1991. For a few years, the problem was treated through exercise and a restricted diet. Over
time, Krohn's cholesterol fluctuated but mostly remained high.3 According to plaintiff Phyllis
Scott ("Phyllis"), Dr. Shirley Jacobsen was the doctor who prescribed cholesterol medication for
Krohn. Krohn began taking Zocor for high cholesterol in 1997.

Between 1991 and sometime in 1997, Krohn's cholesterol was managed through a
restricted diet and exercise. During this time, according to her mother, Krohn did exercise on a
regular basis, and had a personal trainer, but her weight increased. In September 1997, Dr.
Jacobsen wrote a letter to the State Farm adjuster, confirming an earlier discussion, and opining
that Krohn's hyperlipidemia was directly related to the sequelae from her auto accident; that
since the accident Krohn was not able to do as much exercise as she should, but mainly she had
impairment of self-control from her head injury, which made it hard for her to eat a reasonable
diet. Dr. Jacobsen added that she would make another attempt to help Krohn with her diet by
sending her to a nutritionist. This was done.

In May 2003, Dr. Michael Andary, a treater, did a chart note from a physical examination
of Krohn. Krohn was having significant problems with her right leg. When she sat for long
periods of time in the car and started to stand, she got significant pain. The pain was in the
posterior part of the knee and the upper part of the calf. Krohn told Andary that the pain came
on while she was riding her bike during an exercise program. Krohn was afraid that doing more
exercise would make the problem worse. Krohn reported pain down into her foot, severe enough
that she had been using a wheelchair around the house. Andary reported that Krohn had a very
ataxic gait and used a cane. Regarding the right knee pain, Dr. Andary identified numerous
possible contributing causes, including the accident. Regarding Krohn's cholesterol problem,
Dr. Andary opined that it was causally related to the auto accident:

It is my view that this hypercholesterolemia is at least partially related to her
traumatic brain injury. Her inability to exercise influences her weight.

Additionally her cognitive problems influence her eating behaviors. Her
treatment for hypercholesterolemia in my view should be covered by her Auto No
Fault insurance.

Dr. Andary's recommendations included an MRI of the right knee, and no further exercise
program pending the MRI results. The record does not indicate when, if ever, Dr. Andary
recommended resumption of an exercise program.

Later, Zocor was not as effective as the doctor wanted it to be, so the doctor added Zetia
around December 2003. In or around 2004, Krohn was prescribed Vytorin, a combination of
Zocor and Zetia. State Farm refused to pay for Zetia or Vytorin, contending that it was
insufficiently related to the 1981 motor vehicle accident. Plaintiffs commenced this action in
probate court. Defendant moved for summary disposition, which the probate court denied.
Defendant filed an application for leave to appeal to the circuit court, which the circuit court
denied. We now affirm.

This case requires us to consider whether the cholesterol problem is one "arising out of"
the injuries sustained in the 1981 auto accident. MCL 500.3105(1). Statutory interpretation is a
question of law, reviewed de novo. City of Mt Pleasant v State Tax Comm, 477 Mich 50, 53;
729 NW2d 833 (2007).

Michigan's no-fault act, MCL 500.3101 et seq., 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." MCL 500.3105(1). Payable benefits are defined as follows, in
relevant part:

(1) Except as provided in subsection (2), personal protection insurance
benefits are payable for the following:

(a) Allowable expenses consisting of all reasonable charges incurred for
reasonably necessary products, services and accommodations for an injured
person's care, recovery, or rehabilitation. . . . [MCL 500.3107(1)(a).]
In Putkamer v Transamerica Ins Corp of America 454 Mich 626, 634; 563 NW2d 683
(1997), our Supreme Court stated:

In reviewing the requirement of subsection 3105(1) that the injury arise
out of the "use of a motor vehicle as a motor vehicle," this Court concluded that
the Legislature has provided that there should only be coverage where the casual
connection between the injury and the use of the motor vehicle was more than
incidental, fortuitous, or "but for." See Thornton v Allstate Ins Co, 425 Mich
643, 659; 391 NW2d 320 (1986.) See also Bourne v Farmers Ins Co, 449 Mich
193, 198; 534 NW2d 491 (1995); Marzonie v Auto Club Ins Ass'n, 441 Mich 522,
530; 495 NW2d 788 (1992). [Putkamer, supra at 634 (emphasis added).]

Putkamer's statement was made in the context of deciding whether a woman who slipped and
fell on ice when she entered her parked car could recover personal protection insurance benefits.

On undisputed facts, the Supreme Court held that "plaintiff established as a matter of law that
her injury arose from the use of her parked motor vehicle as a motor vehicle . . . ." Id. at 627.

The Court was primarily interpreting MCL 500.3106(1), which currently provides:
(1) Accidental bodily injury does not arise out of the ownership, operation,
maintenance, or use of a parked vehicle as a motor vehicle unless any of the
following occur:

(a) The vehicle was parked in such a way as to cause an unreasonable risk
of the bodily injury which occurred.

(b) . . . [T]he injury was a direct result of physical contact with equipment
permanently mounted on the vehicle, while the equipment was being operated or
used, or property being lifted onto or lowered from the vehicle in the loading or
unloading process.

(c) . . . [T]he injury was sustained by a person while occupying, entering
into, or alighting from the vehicle.

Thus, while not exactly on point, Putkamer is instructive.

Both parties cite Kochoian v Allstate Ins Co, 168 Mich App 1; 423 NW2d 913 (1988).
Factually, the case is analogous, although procedurally, it is not on point, since it does not
involve summary disposition.

Kochoian suffered a heart attack nearly three months after he was injured in a motor
vehicle accident. He sought personal protection insurance coverage in the form of work loss
benefits, contending that the heart attack arose out of the accident. After a bench trial including
expert physician testimony, the trial court entered a judgment of no cause for action, and denied
a motion for new trial or JNOV. Kochoian, supra at 3. Although the trial court erroneously used
an incorrect standard of causation (requiring the heart attack to have been "directly traceable" to
the accident), this Court nevertheless affirmed, finding that "even under the ‘arising out of'
standard plaintiff failed to prove his case by a preponderance of the evidence." Id. at 7. It
further reasoned: "Indeed, our review of the record convinces us that the trial court was correct
in concluding that plaintiff's heart attack, far from being caused by his accident, instead
constituted ‘an independent disabling injury that prevented him from working.'" Id. This Court
continued:

We reach this conclusion while well aware that the term "arising out of"
does not require a showing of proximate causation, but rather something more
than a showing that the causal connection between the injury and the use of the
motor vehicle was merely incidental, fortuitous, or "but for." Thorton v Allstate
Ins Co, 425 Mich 643; 391 NW2d 320 (1986); Krause v Citizens Ins Co of
America, 156 Mich App 438, 440; 402 NW2d 37 (1986); see also Shinabarger v
Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979) . . . .

In Thornton, supra, 425 Mich pp 659-660, the Supreme Court stated:

"In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature
limited no-fault PIP benefits to injuries arising out of the ‘use of a motor
vehicle as a motor vehicle.' In our view, this language shows that the
Legislature was aware of the causation dispute and chose to provide
coverage only where the causal connection between the injury and the use
of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or
‘but for.' The involvement of the car in the injury should be ‘directly
related to its character as a motor vehicle.' . . . Therefore, the first
consideration under MCL 500.3105(1); MSA 24.13105(1), must be the
relationship between the injury and the vehicular use of a motor vehicle.

Without a relation that is more than ‘but for,' incidental, or fortuitous,
there can be no recovery of PIP benefits." (Emphasis in original; footnote
omitted.)

Whether an injury may be characterized as "arising out of" the use of a
motor vehicle for purposes of no-fault personal protection benefits, and thus based
on a relationship with the use of the motor vehicle which is more than merely
incidental, fortuitous or "but for" with that use-or, put differently, is not so remote
or attenuated as to preclude a finding that it arose out of the use of a motor
vehicle-is a determination which depends on the unique facts of each case and,
thus, must be made on a case-by-case basis. In the present case, the facts reveal
that plaintiff's parentage, habits and preexisting physical condition clearly
predisposed him to the heart attack which occurred almost three months after his
truck accident. He acknowledged, among other things, being overweight, having
smoked heavily for thirty years, having parents who died of causes related to heart
disease, having suffered from angina since 1980, and having high blood pressure
since 1977. In view of these circumstances, we find little indeed to support
plaintiff's assertion that his heart attack was caused by his use of the truck during
his March 2, 1982, accident. [Kochoian, supra at 8-9 (emphasis in first paragraph
added).]

In Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301
(1979), this Court used other words to describe the "arising out of" test:

The relationship between use of the vehicle and the injury need not
approach proximate cause:

The term "arising out of" does not mean proximate cause in the
strict legal sense, nor require a finding that the injury was directly and
proximately caused by the use of the vehicle, nor that the insured vehicle
was exerting any physical force upon the instrumentality which was the
immediate cause of the injury. That almost any causal connection or
relationship will do . . . . Case law indicates that the injury need not be the
proximate result of "use" in the strict sense, but it cannot be extended to
something distinctly remote. Each case turns on its precise individual
facts. The question to be answered is whether the injury "originated
from," "had its origin in," "grew out of," or "flowed from" the use of the
vehicle. [Internal quotation marks and citations omitted.]

Similarly, in Bradley v Detroit Auto Inter-Ins Exch, 130 Mich App 34, 42; 343 NW2d 506
(1983), this Court stated that the use of the motor vehicle need only be one of the causes of the
injury; there may be other independent causes. "Almost any causal connection or relationship
will do." Id. Thus, it is well settled that "arising out of" requires more than an incidental,
fortuitous, or but-for causal connection, but does not require direct or proximate causation.
Kochoian, supra at 8.

Here, plaintiffs responded to defendant's motion by producing evidence of a causal
connection between the accident and the hyperlipidemia, and we consider that evidence in a light
most favorable to plaintiffs. McManamon v Redford Charter Twp, 273 Mich App 131, 134; 730
NW2d 757 (2006). Plaintiffs presented testimony indicating that the accident caused brain and
skeletal injuries, which make it difficult for plaintiff to exercise, and which contribute to poor
judgment regarding diet. Plaintiffs also presented evidence that this difficulty in exercising, and
poor diet, contribute to hyperlipidemia. Plaintiff is not required to establish direct or proximate
causation. Kochoian, supra at 8-9. Almost any causal connection will do. Bradley, supra at 42.

Although a genetic predisposition to hyperlipidemia is apparently present, there is no authority
that, for purposes of personal protection insurance, a plaintiff must exclude other possible causes
(as there is, for instance, when proximate causation is at issue, in a traditional tort context4).

Plaintiff has presented evidence sufficient to raise a genuine issue of material fact. The chain of
causation, under plaintiffs' theory, though somewhat attenuated, is not so long that its links are
completely unable to support the burden of proof. There is testimony indicating that there is no
objective test that can distinguish between a case of hyperlipidemia caused genetically, and one
caused by independent factors. Thus, the trier of fact must decide whether the high cholesterol
problem is one "arising out of" the accident.

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http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20080415_C276544_35_276544.OPN.PDF

Affirmed.

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