Michigan Court of Appeals; Docket #356675; Unpublished
Judges Sawyer, Letica, and Patel; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order in favor of Plaintiff Wolverine Mutual Insurance Company (“Wolverine”) in its action for declaratory judgment against Defendant Jeffrey Kemper, on the issue of whether injuries Kemper developed after falling out of his car while attempting to use a transfer board were caused by a 1987 motor vehicle accident which rendered him a quadriplegic. Relying on McPherson v McPherson, 493 Mich 294 (2013), the Court of Appeals held that Kemper’s injuries did not arise out of the 1987 accident.
Jeffrey Kemper was catastrophically injured in a motor vehicle accident in 1987, leaving him wheelchair bound and dependent on a transfer board for transferring from the driver’s seat of his car to his wheelchair. In 2019, as Kemper attempted such a transfer, his transfer board fell, causing him to fall to the ground and injure his buttocks. As a result of the injury to his buttocks, Kemper developed a hematoma which, in turn, developed into a stage-three pressure ulcer. Kemper sought no-fault PIP benefits related to the treatment he received for the pressure ulcer from Wolverine, which had priority responsibility for his claim arising out of the 1987 accident. Wolverine denied his claim, and then filed an action for declaratory judgment, seeking a ruling that Kemper’s pressure ulcer did not arise out of the 1987 accident for purposes of the no-fault act. The trial court agreed with Wolverine’s position and granted summary disposition in its favor.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that, under McPherson, Kemper’s injuries did not arise out of the 1987 accident. The Court interpreted McPherson to require that, in cases such as this, where there is an initial injury and a subsequent injury, there be a direct link between the two in order for the subsequent injury to be deemed to have “arisen out of” the original accident. In this case, there was no direct link between the two; rather, like in McPherson, ‘the first injury directly caused the second accident, which in turn caused the second injury.’
“Accordingly, the record reflects that the ‘first injury directly caused the second accident, which in turn caused the second injury.’ McPherson, 493 Mich at 298-299. Defendant did not develop a stage-three pressure ulcer from the 1987 accident. Rather, he developed the ulcer during a fall, which was caused by his quadriplegia, which was caused by his use of a motor vehicle in 1987. Our Supreme Court explicitly rejected this type of causation as being too remote and too attenuated from the automobile accident to permit a finding that the causal connection between the accident and the second injury was ‘more than incidental, fortuitous, or ‘but for.’ ’ Id. at 298, quoting Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986).”