 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Galbreath v. Tig Insurance Co.8/10/2001
UNPUBLISHED
Plaintiff appeals as of right from the order granting summary disposition in favor of defendant. We affirm.
Duward Galbreath, plaintiff's husband, was killed when his motorcycle flipped over as he was exiting US 31 at Sternberg Road. Plaintiff filed a complaint against defendant alleging that a vehicle driven by Kimberly Rathsburg and insured by defendant was involved in the accident, and that defendant wrongfully denied plaintiff personal injury protection insurance benefits. The circuit court granted summary disposition to defendant, finding no evidence that Rathburg's vehicle was involved in the accident.
In deciding a motion for summary disposition brought under MCR 2.116(C)(10), the trial court considers the affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Ritchie-Gamestar v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). This Court reviews de novo a trial court's decision to grant or deny a motion for summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
The applicable section of Michigan's no-fault act provides, in pertinent part, as follows:
(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the motor vehicle involved in the accident. [MCL 500.3114(5).]
Thus, under MCL 500.3114(5), a motorcyclist who suffers accidental bodily injury arising from a motor vehicle accident may claim benefits from the insurers of the motorists and vehicle owners who were "involved in the accident." Greater Flint HMO v Allstate Ins Co, 172 Mich App 783, 786; 432 NW 2d 439 (1988).
Even though the phrase "involved in the accident" appears many times throughout the no- fault act, it is not defined in the act. Turner v Auto Club Ins Ass'n, 448 Mich 22, 37; 528 NW2d 681 (1995). However, in Hastings Mutual Ins Co v State Farm Ins Co, 177 Mich App 428, 434; 442 NW2d 684 (1989), this Court held that in order for a vehicle to be considered "involved" in an accident for purposes of § 3114(5), that vehicle must be an "active link contributing to the accident," and "there must be 'evidence' which 'shows' the involvement of a motor vehicle." Further, citing Hastings, supra, as well as other Court of Appeals cases interpreting the phrase "involved in the accident" in the no-fault act, the Supreme Court held in Turner, supra that for a vehicle to be considered "involved in the accident" under § 3125, the motor vehicle, being operated or used as a motor vehicle, must actively, as opposed to passively, contribute to the accident. Showing a mere "but for" connection between the operation or use of the motor vehicle and the damage is not enough to establish that the vehicle was "involved in the accident."
Moreover, physical contact is not required to establish that the vehicle was "involved in the accident," nor is fault a relevant consideration in the determination whether a vehicle was "involved in the accident." [Turner, supra at 39.]
Rathsburg testified at her deposition that as Galbreath entered US 31, Rathsburg moved over to the passing lane to allow him to enter the highway. Galbreath accelerated and passed Rathsburg on the right. Rathsburg then moved over to the driving lane where she maintained her speed. A s
Page 1 2 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|