Order Michigan Supreme Court
Lansing, Michigan
November 21, 2012 Robert P. Young, Jr.,
Chief Justice
142936 Michael F. Cavanagh
Marilyn Kelly
GALE BOERTMANN, Stephen J. Markman
Diane M. Hathaway
Plaintiff-Appellee, Mary Beth Kelly
v SC: 142936 Brian K. Zahra,
COA: 293835 Justices
Macomb CC: 2008-003332-NF
CINCINNATI INSURANCE COMPANY,
Defendant-Appellant.
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On order of the Court, leave to appeal having been granted and the briefs and oral
arguments of the parties having been considered by the Court, we REVERSE the March
8, 2011 judgment of the Court of Appeals, and we REMAND this case to the Macomb
Circuit Court for entry of an order granting summary disposition to defendant.
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.” An injury arises out of the use of a motor vehicle as a motor vehicle when “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.’” Thornton v Allstate Ins Co, 425 Mich 643,
659 (1986). Here, as tragic as the motor vehicle accident that caused the death of
plaintiff’s son was, the causal connection between plaintiff’s injury, i.e., post-traumatic
stress disorder, and the “use of a motor vehicle as a motor vehicle” is not “more than
incidental, fortuitous, or ‘but for.’” Any injury suffered by plaintiff was too attenuated to
be compensable. Plaintiff herself was in no way involved in the motor vehicle accident;
she was not on the motorcycle with her son, nor was she in the vehicle that struck her
son; and she was not struck by the motorcycle or by the vehicle that struck her son.
Instead, just as with the plaintiff in Keller v Citizens Ins Co of America, 199 Mich App
714 (1993), plaintiff was simply a bystander who very unfortunately witnessed an
accident that resulted in her son’s death. Accordingly, just as with the plaintiff in Keller,
plaintiff is not entitled to no-fault benefits.
HATHAWAY, J. (dissenting).
I believe that the Court of Appeals correctly analyzed this matter and reached the
correct result. Accordingly, I would affirm the Court of Appeals.
CAVANAGH and MARILYN KELLY, JJ., join the statement of HATHAWAY, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 21, 2012 _________________________________________
t1120 Clerk