Order Michigan Supreme Court
Lansing, Michigan
April 17, 2009 Marilyn Kelly,
Chief Justice
137189 Michael F. Cavanagh
Elizabeth A. Weaver
UNIVERSITY REHABILITATION Maura D. Corrigan
Robert P. Young, Jr.
ALLIANCE, INC., Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 137189
COA: 272615
Ingham CC: 05-000537-NF
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 22, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
I respectfully dissent from the order denying defendant’s application for leave to
appeal. I would grant leave to appeal in this no-fault insurance case involving an award
of attorney fees. The Court of Appeals majority erroneously concluded that defendant’s
delay in paying personal protection insurance (PIP) benefits was unreasonable. In my
view, the dissenting judge in the Court of Appeals properly articulated the governing
legal principles. Univ Rehabilitation Alliance, Inc v Farm Bureau Gen Ins Co, 279 Mich
App 691, 704-706 (2008).
I. Factual Background and Procedural History
Defendant’s insured suffered serious brain injuries when her boyfriend allegedly
pushed her from a moving motor vehicle. The insured’s boyfriend was criminally
charged for this assault. Defendant, Farm Bureau General Insurance Company, the no-
fault insurer, initially refused to pay plaintiff’s, University Rehabilitation Alliance, Inc,
claim for benefits on the ground that if the insured’s injuries resulted from an assault,
they are exempt from no-fault coverage under MCL 500.3105(4). Plaintiff filed suit,
challenging defendant’s initial refusal to pay PIP benefits. After the insured’s boyfriend
was acquitted of criminal assault, defendant voluntarily paid plaintiff’s claim with
2
interest. Nevertheless, plaintiff asserted that defendant’s delay was unreasonable and
moved for attorney fees under MCL 500.3148(1). The trial court awarded plaintiff
attorney fees. The majority in the Court of Appeals affirmed, while the dissent concluded
that defendant’s delay in paying PIP benefits was reasonable because binding precedent
exempts injuries resulting from an assault in a motor vehicle from no-fault coverage.
II. Reasonableness under MCL 500.3148(1)
When a no-fault insurer refuses or delays payment of PIP benefits, it has the
burden of justifying its refusal or delay under MCL 500.3148(1). Ross v Auto Club
Group, 481 Mich 1, 11 (2008). “The insurer can meet this burden by showing that the
refusal or delay is the product of a legitimate question of statutory construction,
constitutional law, or factual uncertainty.” Id. When a reviewing court makes this
inquiry, the determinative factor “is not whether the insurer ultimately is held responsible
for benefits, but whether its initial refusal to pay was unreasonable.” Id.
Defendant’s initial refusal to pay benefits was reasonable. Until defendant learned
that the insured’s boyfriend had been acquitted of criminal assault, it was legitimately
factually uncertain about the true cause of its insured’s injury. Relying on authority from
this Court, defendant properly believed that PIP benefits were not payable if the insured’s
injuries arose from a criminal assault. McKenzie v Auto Club Ins Ass’n, 458 Mich 214,
225-226 (1998); Bourne v Farmers Ins Exch, 449 Mich 193, 198 (1995); Thornton v
Allstate Ins Co, 425 Mich 643, 659 (1986). In Ross, this Court concluded that the
defendant’s denial of benefits was reasonable because the defendant had “relied on a
factually similar Court of Appeals decision to adopt a reasonable position on an issue of
first impression.” Id. at 15. Here, defendant similarly adopted a reasonable position in
reliance on analogous precedent. Additionally, defendant relied on this Court’s
seemingly blanket statement that “assaults occurring in a motor vehicle are not closely
related to the transportational function of a motor vehicle.” McKenzie, supra at 222. I
see no appreciable distinction between defendant’s position here and that of the defendant
in Ross. In both cases, the defendants relied on earlier caselaw concerning similar issues
to adopt a reasonable position regarding payment of benefits. Indeed, as soon as
defendant learned that its insured’s boyfriend had been acquitted of criminal assault, it
voluntarily paid plaintiff more than $187,908 of benefits and $16,000 of interest.
Consequently, defendant’s initial refusal to pay was not unreasonable under the
circumstances.
Moreover, defendant had a separate legitimate question of statutory interpretation
regarding MCL 500.3105.1 The only competing versions of the events involved
1
MCL 500.3105(1) requires an insurer to pay PIP benefits for any “accidental bodily
injury arising out of the [. . .] use of a motor vehicle as a motor vehicle . . . .” MCL
500.3105(4) further provides that:
3
intentional conduct: Did the boyfriend assault the insured, or did she jump from the
moving vehicle? A claimant’s bodily injury is accidental “unless suffered intentionally
by the injured person or caused intentionally by the claimant.” MCL 500.3105(4). In
this case, defendant’s attempted investigation of the veracity of the insured’s claim that
her boyfriend had assaulted her was stymied by the ongoing criminal investigation.
Defendant could not interview the criminal defendant-boyfriend. Moreover, during his
criminal trial, the insured’s boyfriend testified that defendant’s insured had jumped from
the moving vehicle. In contrast, the insured testified that her boyfriend had pushed her.
The jury apparently accepted the boyfriend’s version of events and acquitted him of all
charges. On these facts, the contest is between two versions of “intentional” conduct, and
under one version of events, the injuries suffered by the insured were not “accidental”
because the insured’s injuries were “suffered intentionally . . . or caused intentionally by
the claimant.” MCL 500.3145(4). If its insured intentionally jumped from the moving
vehicle (in what appears to me to be) an apparent suicide attempt, defendant could not
have unreasonably delayed in making PIP payments because there was no “accidental”
injury. This is a second ground for a determination that the delay in payment reasonable.
III. Justice Weaver’s Consistent Interpretation of MCL 500.3105
This Court recently heard arguments in a case involving the award of no-fault
benefits to a fleeing felon aiming a firearm at a pursuing police officer under MCL
500.3105. Although we ultimately denied leave in Budget Rent-a-Car System, Inc v
Detroit,2 two of my colleagues issued separate statements expressing divergent
interpretations of MCL 500.3105. Justice Markman described the result as “extremely
troubling,” but nevertheless agreed with this Court and the Court of Appeals that “the law
is clear that an insurer is required to pay personal protection insurance benefits for any
‘accidental bodily injury arising out of the . . . use of a motor vehicle as a motor vehicle
. . . .’”3 Justice Weaver dissented, explaining that, “[t]he claimant was not entitled to no-
fault benefits because his injuries did not arise out of an ‘accidental bodily injury’ as
defined in MCL 500.3105. The injuries sustained by the claimant occurred as a result of
the claimant’s use of a vehicle rented from the plaintiff for the commission of criminal
Bodily injury is accidental as to a person claiming personal protection
insurance benefits unless suffered intentionally by the injured person or
caused intentionally by the claimant. Even though a person knows that
bodily injury is substantially certain to be caused by his act or omission, he
does not cause or suffer injury intentionally if he acts or refrains from
acting for the purpose of averting injury to property or to any person
including himself.
2
Budget Rent-a-Car System, Inc v Detroit, 482 Mich 1098 (2008).
3
Budget Rent-a-Car System, supra at 1098-1099 (Markman, J., concurring).
4
acts.”4 Justice Weaver further reasoned that, “[w]hile the claimant may not have
intended to be injured, he ‘caused’ his injuries by intentionally engaging in criminal
behavior that put him at risk of injury and in fact resulted in his injuries.”5 Accordingly,
Justice Weaver concluded, “[b]ecause the claimant did not act, or refrain from acting, ‘for
the purpose of averting injury to . . . any person including himself,’ the claimant's injuries
were not ‘accidental.’ . . . Any remedy for plaintiff's error in mistakenly paying the
claimant no-fault benefits for injury stemming from the claimant's intentional criminal
activity must be pursued against the claimant.”6 My colleagues’ differing interpretations
of MCL 500.3105 further suggest that a legitimate issue of statutory interpretation indeed
existed in this case.
IV. Additional Relevant Caselaw
Several decisions underscore my conclusion regarding the existence of a
legitimate question of statutory interpretation. In American Alternative Ins Co, Inc v
York, 470 Mich 28, 32 (2004),7 the Court held that under MCL 500.3135(3)(1)(a), “courts
are to review only whether the defendant intended to cause the harm that resulted.”
Therefore, even though the evidence revealed that the tortfeasor drove a vehicle while
intoxicated and subsequently crashed into an ambulance, none of the evidence supported
“a finding that [the tortfeasor] actually intended to collide with the ambulance and cause
damage to it. Thus, under the language of the statute, because [the tortfeasor] did not
intend to cause damage to the ambulance, he is immune from suit.” Id. at 32-33.
Similarly, in Amerisure Ins Co v Auto-Owners Ins Co, 262 Mich App 10, 19 (2004), the
Court of Appeals reasoned, “[a]n injured person acts intentionally under the no-fault act
if he intended both the act causing the injury and the injury itself, and the finder of fact
must focus on the person’s subjective intent.” (Emphasis in original.) Accordingly, the
Court of Appeals held that the trial court did not abuse its discretion in considering a
person’s level of intoxication as one factor when deciding whether he intended to injure
himself. Id.8
The caselaw concerning the issue of intent in no-fault insurance cases, however,
continues to engender a variety of holdings. In Schultz v Auto-Owners Ins Co,
4
Budget Rent-a-Car System, Inc v Detroit, supra at 1099-1100 (Weaver J. dissenting).
5
Id. at 1100.
6
Id. at 1101.
7
Except for Justice Markman, who filed a separate concurring opinion, the full Court
signed the opinion per curiam issued in American Alternative Ins Co, Inc. Id. at 33.
8
See Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 226 (1996) (“One acts
intentionally [for purposes of the no-fault act] if he intended both the act and the injury.”
[emphasis in original].).
5
212 Mich App 199, 201 (1995), the Court of Appeals affirmed a trial court’s decision to
grant summary disposition, thereby precluding the claimant from receiving PIP benefits.9
When faced with factual circumstances markedly similar to the facts in this case, the
Court of Appeals explained that
the evidence showed that [the claimant] quarrelled with his girlfriend. He
then jumped from a moving van that he was driving. Statements he made
before jumping established that he did so either to elicit the girlfriend’s
sympathy or to arouse feelings of guilt in her. Consequently, plaintiff’s
intent to cause himself injury can be inferred from the facts. He did not
meet his burden of showing no intent to injure himself when he jumped,
and defendant’s motion for summary disposition was properly granted.[10]
Unlike the conclusion in Amerisure, the Schultz Court stated that, “the fact that [the
claimant] claimed to be voluntarily intoxicated at the time of the incident would not
vitiate or mitigate his intent.”11 Moreover, in Miller v Farm Bureau Mut Ins Co, 218
Mich App 221, 225-226 (1996), the Court of Appeals held that the insured’s suicide
attempt in crashing his vehicle into a tree was intentional and that the insured therefore
was not entitled to PIP benefits, even though the insured was suffering from mental
illness. Additionally, this Court has held that a driver who was shot while occupying a
motor vehicle was not entitled to benefits where shots were fired during the continuation
of an argument that had begun before the automobile chase and the involvement of
automobiles was incidental under MCL 500.3105(1). Marzonie v Auto Club Ins Ass’n,
441 Mich 522, 534 (1992).
Accordingly, because the Court of Appeals erred when it concluded that
defendant’s initial refusal to pay benefits was unreasonable, I would grant defendant’s
application for leave to appeal.
MARKMAN, J., joins the statement of CORRIGAN, J.
9
Chief Justice Kelly was a member of the Court of Appeals panel in Schultz.
10
Schultz, supra at 201-202.
11
Id. at 202.
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.
April 17, 2009 _________________________________________
p0414 Clerk