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Fryman v. State Farm Mutual Auto Insurance Co.8/27/2002
UNPUBLISHED
Defendant State Farm Mutual Insurance Company appeals as of right from an order denying its motion for summary disposition and granting summary disposition in favor of plaintiff Lyndell Fryman pursuant to MCR 2.116(C)(10). We affirm.
I. Basic Facts And Procedural History
In 1995, Fryman was driving a motorcycle northbound on Old Swamp Road when she came upon a slow-moving van, which State Farm insured. Kathy Hylka, who owned the van, was driving. Fryman, who apparently did not know why the van was moving slowly, drove at least partially into the lane for oncoming traffic twice in order to peer around the van to determine whether the traffic was clear to pass. Fryman did not pass either time because a car appeared in the oncoming lane of traffic. According to Fryman, she did not see a vehicle in front of the van either time.
On her third attempt at passing, Fryman accelerated to get around the van. When Fryman came alongside the van, she noticed for the first time that there was a farm tractor, which Enrique Herrera was driving, traveling in front of the van. Within seconds of when Fryman first saw the tractor, it suddenly veered to the left in front of her motorcycle. Fryman did not notice any indicator that the tractor intended to turn left, but a passenger on the left side of the tractor was waiving a hat in the air and she assumed he was waiving her around the tractor. When Fryman saw the tractor come over the center line toward her, she had no room to move to the right because the van was there, so she swerved to the left to avoid a collision. Fryman thought that if she turned left, either the tractor driver or passenger would swing around, see her, and stop the tractor.
Fryman estimated that five seconds passed between the time she first saw the tractor and the moment she hit it. Fryman thought that the van, which had prevented her from seeing the tractor, never left its own lane, did not strike her motorcycle, and was out of her line of vision when the tractor made its left turn in front of her. As a result of the accident, Fryman sustained injuries requiring medical treatment and filed a claim against State Farm for personal injury protection (PIP) benefits.
In a separate action, Fryman also filed third-party claims against Willbrandt Farms, Inc., and Enrique Herrera. The trial court in this case presided over a bench trial on Fryman's third- party claim and found in her favor. When Fryman filed her brief in opposition to summary disposition, she attached portions of the record from this other litigation as documentary evidence to support her argument that the van was involved in the accident. This evidence included deposition testimony from Daniel G. Lee, Ph.D., an "accident reconstructionist hired in the third party action who testified on behalf of Willbrandt Farms, Inc., that the Hylka vehicle was 'involved' in the Plaintiff's accident." Dr. Lee is a defensive driving instructor certified by the National Safety Council for Defensive Driving and a member of the Michigan State University faculty who served as director of the education training research for accident investigation within the College of Engineering. In Dr. Lee's opinion, the "operation of the motorcycle and the positioning of the van" were primarily responsible for the accident. He believed that the van was following the tractor at a distance of one to two car lengths, which was "fairly close and start to reduce sight distance," which contributed to the accident and may have violated a tailgating statute. Lee asserted that the very reason tailgating statutes exist is to make stopping safer and to increase visibility because, when a second vehicle follo
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