No-fault PIP benefits; McPherson v McPherson; Causation

In this no-fault PIP case, the court reversed the denial of defendant-MemberSelect’s motion for summary disposition, and remanded. In 5/19, plaintiff was driving her leased vehicle “(insured by MemberSelect) when she was in a motor vehicle accident.” In 6/19, she “started suffering from dizziness and vertigo, which her doctors attributed to a postconcussion syndrome, which in turn was something she developed because of” the accident. In 11/19, she “walked out the front door of her condominium onto her front porch; she fell from her porch and fractured her ankle.” Plaintiff attributed this “to a dizzy spell, and she attribute[d] her dizzy spells to the car accident. Plaintiff had to have surgery on her ankle and incurred other medical expenses relating to her ankle injury. MemberSelect rejected plaintiff’s claim for medical expenses related to her fractured ankle.” The court held that in “both McPherson and this case, a second incident caused the relevant injury. Here, plaintiff did not injure her ankle in the motor vehicle accident; she suffered head trauma that arguably led to dizziness and vertigo, which then arguably led to a second incident (plaintiff falling off her porch), which in turn caused her ankle injury. Under McPherson, there is not a sufficient connection between the ankle injury and the motor vehicle accident.” The court concluded while “the trial court may have been correct in concluding that questions of fact remain regarding whether plaintiff’s dizziness and vertigo constituted a contributing factor in plaintiff falling off the porch and whether plaintiff’s dizziness and vertigo were caused by the car accident, these are not genuine issues of material fact. Even if plaintiff’s fall was caused by dizziness and vertigo, and dizziness and vertigo were caused by her car accident, her car accident would not be more than an incidental, fortuitous, or ‘but for’ cause of her ankle injury. Therefore, plaintiff’s ankle injury did not ‘arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle’ pursuant to MCL 500.3105(1).” She tried to distinguish McPherson by claiming “her fall was a direct symptom of the head injury she sustained in the car accident, stating that ‘[w]hereas the plaintiff in McPherson did not suffer an injury that would directly case [sic] motorcycle collisions, [plaintiff] did suffer an injury that would directly cause falls.’” The court was not convinced. “Much like how the motorcycle accident in McPherson would not have happened if the plaintiff had been lying in bed, plaintiff’s fall would not have happened if she had been sitting or lying down. Therefore, dizziness and vertigo, not falling, were the direct symptoms of” her head injury.