                          STATE OF MICHIGAN

                           COURT OF APPEALS



JAMIE PIKE,                                                        UNPUBLISHED
                                                                   November 27, 2018
               Plaintiff-Appellant,

v                                                                  No. 336455
                                                                   Wayne Circuit Court
FARM BUREAU MUTUAL INSURANCE                                       LC No. 16-000062-NF
COMPANY OF MICHIGAN,

               Defendant-Appellee.


SYNERGY SPINE AND ORTHOPEDIC
SURGERY CENTER, LLC,

               Plaintiff-Appellant,

v                                                                  No. 337192
                                                                   Wayne Circuit Court
FARM BUREAU GENERAL INSURANCE                                      LC No. 16-013029-NF
COMPANY OF MICHIGAN,

               Defendant-Appellee.


Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        These consolidated appeals concern whether plaintiff Jamie Pike’s uninsured vehicle was
“involved in the accident” giving rise to this dispute within the meaning of the no-fault act, MCL
500.3101 et seq. The trial court determined that the vehicle was involved in the accident and
therefore granted defendant summary disposition of Pike’s claim for personal protection
insurance (PIP) benefits. For the same reason, the trial court granted defendant summary
disposition of plaintiff Synergy Spine and Orthopedic Surgery Center, LLC’s complaint to
recover payment for treatment provided to Pike. Plaintiffs appeal the respective orders granting
summary disposition. For the reasons stated below, we reverse the trial court’s grant of
summary disposition with respect to Pike, but affirm the order of summary disposition pertaining
to Synergy.



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                                       I. BACKGROUND

        According to Pike’s deposition testimony, she called Jeffrey Coates to examine her
vehicle, which was “acting up.” Coates, who “can fix vehicles somewhat,” was able to get the
vehicle “running.” Coates decided to drive the vehicle to a friend’s house for further diagnosis.
Pike followed Coates, driving his vehicle. Neither vehicle was insured. The two vehicles
stopped at a red light with Coates driving the lead car. As Pike and Coates were sitting at the red
light, Pike’s vehicle—driven by Coates—stalled. The light turned green and Pike waited behind
Coates. Then Pike—driving Coates’s vehicle—was rear-ended by a pickup truck driven by
Mark Burkhardt. Coates’s vehicle did not hit Pike’s vehicle as a result of the impact from the
pickup truck.

        Pike suffered injuries requiring treatment as a result of the accident. Her claim for PIP
benefits was assigned to defendant through the Michigan Assigned Claims Plan. Pike sued
defendant after it refused to pay some of her claims. Defendant moved for summary disposition,
arguing that Pike’s uninsured vehicle was involved in the accident and she was therefore
precluded from recovering PIP benefits. The trial court agreed and granted defendant summary
disposition under MCR 2.116(C)(10) (no genuine issue of material fact). Synergy sued
defendant under the no-fault act to recover payment for treatment rendered to Pike. Defendant
moved for summary disposition on the same grounds as it did in Pike’s case. The trial court
granted defendant’s motion.

                                 II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition. Shinn v
Mich Assigned Claims Facility, 314 Mich App 765, 768; 887 NW2d 635 (2016). A party is
entitled to summary disposition if “there is no genuine issue as to any material fact, and the
moving party is entitled to judgment . . . as a matter of law.” MCR 2.116(C)(10). “A genuine
issue of material fact exists when the record, giving the benefit of reasonable doubt to the
opposing party, leaves open an issue upon which reasonable minds might differ.” Bahri v IDS
Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014) (quotation marks and citation
omitted). Whether a vehicle was involved in the accident for purposes of the no-fault act has
consistently been reviewed de novo as a question of law. See Witt v American Family Mut Ins
Co, 219 Mich App 602, 606; 557 NW2d 163 (1996).

                                        III. ANALYSIS

        Plaintiffs argue that the trial court erred in granting defendant’s motions for summary
disposition because Pike’s uninsured vehicle was not “involved in the accident” for purposes of
MCL 500.3113(b). We agree.

        MCL 500.3101(1) “requires the owner or registrant of a motor vehicle to carry insurance
for personal protection, property protection, and residual liability. Ardt v Titan Ins Co, 233 Mich
App 685, 689; 593 NW2d 215 (1999). Under MCL 500.3113(b),

              A person is not entitled to be paid personal protection insurance benefits
       for accidental bodily injury if at the time of the accident any of the following
       circumstances existed:


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                                             * * *

               (b) The person was the owner or registrant of a motor vehicle or
       motorcycle involved in the accident with respect to which the security required by
       section 3101 or 3103 was not in effect.

Thus, “the owner of an uninsured motor vehicle is not entitled to personal protection insurance
benefits for bodily injury resulting from an accident involving that vehicle.” Ardt, 233 Mich
App at 689. In order for a motor vehicle to be involved in the accident under the no-fault act,

       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 is “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 is “involved in an accident.” [Turner v Auto Club Ins Ass’n, 448 Mich 22,
       39; 528 NW2d 681 (1995).]

         Plaintiffs rely on Utley v Mich Mun Risk Mgmt Auth, 454 Mich 879 (1997), which also
involved a vehicle stopped at an intersection. In Utley, a truck had stopped for traffic. The
plaintiff was riding a motorcycle behind the truck. The plaintiff “looked down at his
speedometer. When he looked up again, [he] noticed the stopped truck and applied his brakes”
at which point he “lost control of his motorcycle, which fell on its side and slid toward the
truck.” Utley v Mich Mun Risk Mgmt Auth, unpublished per curiam opinion of the Court of
Appeals, issued April 26, 1996 (Docket No. 173391), p 2. This Court held that the truck was
involved in the accident, and the Supreme Court reversed, stating: “On the facts in this case, the
truck . . . was not ‘involved’ in the accident.” Utley, 454 Mich 879.

        It is uncertain whether Utley constitutes binding precedent.1 In any event, we find it
instructive and applicable to this case. Like the truck in Utley, Pike’s vehicle did not actively
contribute to the accident when stopped at the intersection. The presence of Pike’s vehicle was a
passive cause because had the vehicle not been stationary, traffic would be moving and the
accident would not have happened. However, a vehicle stopped at an intersection, at least one




1
  A Supreme Court order is binding precedent if it was “a final Supreme Court disposition of an
application, and the order contains a concise statement of the applicable facts and the reason for
the decision.” People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993). Although the
Utley order does not contain a concise statement of the facts, the Court’s reference to the “facts
in this case” indicates that similar factual scenarios should be decided in accordance with the
Court’s disposition in Utley.



                                               -3-
that is not physically contacted,2 does not have a sufficient causal connection to be considered an
active cause of the accident.

        The dissent distinguishes Utley on the ground that Pike’s vehicle was stalled at the
intersection rather than stopped “in the normal course of driving.” Utley, unpub op at 2. We
disagree that this is a material distinction. In Utley, the motorcycle rider failed to realize in time
that the vehicle in front of him had stopped. Similarly, Burkhardt—the driver of the pickup truck
in this case—did not notice that the vehicles ahead of him had not moved when the light turned
green.3 It does not matter why traffic was stopped because fault is irrelevant. Turner, 448 Mich
at 39. What matters is whether the vehicle was an active rather than passive contribution to the
accident. The stalled vehicle did not actively cause Burkhart to rear-end the vehicle driven by
Pike.

         As noted, Pike’s vehicle was not physically contacted in the collision. Physical contact is
not necessary, Turner, 448 Mich at 39, but that does not mean it is wholly irrelevant to
determining whether the vehicle was involved in the accident. In a somewhat analogous case,
Auto Club Ins Ass’n v State Auto Mut Ins Co, 258 Mich App 328, 339-340; 671 NW2d 132
(2003), this Court stressed the importance of physical contact in deciding whether the vehicle
was involved in the accident. In that case, traffic was stopped at a construction zone. Id. at 330.
A motorcycle “was unable to stop behind the line of vehicles” and collided with a pickup truck.
Id. The question in that case was whether the vehicle in front of the truck was involved in the
accident. Id. The trial court held that it was not, id. at 331, and this Court reversed. This Court
first determined that there was a question of fact regarding whether the motorcycle collided with
the vehicle. Id. at 335. From there, this Court concluded that, if such collision occurred, that
would be sufficient to hold that the vehicle was involved in the accident. Id. at 339-341. Thus,
in Auto Club Ins Ass’n the existence of physical contact was crucial to determining whether the
stopped vehicle was involved in the accident. The absence of such contact is this case supports
our conclusion that Pike’s vehicle was not involved in the accident.

       Defendant also argues that Pike’s vehicle was involved in the accident because the
vehicle was “parked in such a way as to cause unreasonable risk of the bodily injury which




2
  In Utley, it is unclear if the motorcycle made contact with the truck. But the phrase explaining
that the motorcycle “slid toward the truck,” Utley, unpub op at 2, suggests not.
3
    Section 627 of the Michigan Vehicle Code, MCL 257.1 et seq., provides in part:
                 (1) A person operating a vehicle on a highway shall operate that vehicle at
         a careful and prudent speed . . . having due regard to the traffic . . . and any other
         condition existing at the time. A person shall not operate a vehicle upon a
         highway at a speed greater than that which will permit a stop within the assured,
         clear distance ahead. [MCL 257.627(1).]




                                                  -4-
occurred” under MCL 500.3106(1)(a).4 First, defendant failed to raise this argument below and
therefore has waived appellate review of this issue. Walters v Nadell, 481 Mich 377, 387; 751
NW2d 431 (2008) (“Michigan generally follows the ‘raise or waive’ rule of appellate review.”)
(citation omitted). Second, we cannot conclude that Pike’s vehicle was “parked” when the
accident occurred within seconds of the vehicle stalling. In the cases relied on by defendant, the
disabled vehicle was moved toward the shoulder or curb of the road before it was considered
parked.5 In contrast, Pike and Coates had not decided what to do with the stalled vehicle because
the accident happened almost instantaneously. Defendant fails to provide any authority
supporting the position that a vehicle automatically becomes parked the instant that the engine
stops operating.

        To summarize, Pike’s vehicle was not involved in the accident for purposes of MCL
500.3113(b) because there was no “active link” between Pike’s injury and her vehicle. Turner,
448 Mich at 39. And to the degree that physical contact with the insured vehicle may alter that
requirement, it is not relevant here as there was no contact between Pike’s vehicle and the
colliding vehicles. Therefore, the trial court erred in granting defendant summary disposition of
Pike’s complaint.6

        Nonetheless, we agree with defendant that Synergy is barred from pursuing its complaint
given Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 196; 895 NW2d 490
(2017), in which the Supreme Court held “that healthcare providers do not possess a statutory
cause of action against no-fault insurers for recovery of personal protection insurance benefits
under the no-fault act.” Covenant was decided after the trial court granted summary disposition
in this case, and therefore defendant could not have raised this issue below. But this Court has
overlooked preservation requirements pertaining to Covenant arguments. Bronson Healthcare
Group, Inc v Mich Assigned Claims Plan, ___ Mich App ___, ___; ___ NW2d ___ (2018)
(Docket No. 336088); slip op at 2-3. Further, the Covenant holding applies retroactively to cases
that were pending on direct appeal at the time Covenant was decided, id. at 2, as is the case here.
Therefore, defendant is entitled to summary disposition of Synergy’s complaint because Synergy
does not have an independent cause of action against defendant under the no-fault act. We can
affirm the trial court for reaching the right result for the wrong reason. Coates v Bastian
Brothers, Inc, 276 Mich App 498, 508-509; 741 NW2d 539 (2007).



4
 In Heard v State Farm Mut Auto Ins Co, 414 Mich 139, 144-145; 324 NW2d 1 (1982), the
Supreme Court held that a parked vehicle is involved in an accident only when one of the
parked-vehicle exceptions found in MCL 500.3106 applies.
5
  See Amy v MIC Gen Ins Corp, 258 Mich App 94, 99-100; 670 NW2d 228 (2003), rev’d in part
on other grounds sub nom Stewart v Michigan, 471 Mich 692; 692 NW2d 376 (2004); Williams
v Allstate Ins Co, 144 Mich App 178, 179-180; 375 NW2d 8 (1985); Braun v Citizens Ins Co,
124 Mich App 822, 823; 335 NW2d 701 (1983).
6
  Given our ruling, we need not address plaintiffs’ alternative argument that Coates’s deposition
testimony establishes a genuine issue of material fact regarding whether Pike’s vehicle was
present for the accident.



                                                -5-
       Reversed in part, affirmed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                        /s/ Jane M. Beckering
                                                        /s/ Douglas B. Shapiro




                                            -6-
