                           STATE OF MICHIGAN

                           COURT OF APPEALS



AUTO CLUB GROUP INSURANCE                                          UNPUBLISHED
COMPANY,                                                           November 4, 2014

              Plaintiff-Appellant,

v                                                                  No. 314733
                                                                   Wayne Circuit Court
STATE FARM INSURANCE COMPANY,                                      LC No. 11-006977-CK

              Defendant,
and

NORTHLAND INSURANCE COMPANY and
USAA CASUALTY INSURANCE COMPANY,

              Defendants-Appellees.


Before: SAWYER, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

       Plaintiff appeals as from the trial court’s order granting summary disposition. We affirm.

        This case arises from two motor vehicle accidents that occurred on September 27, 2007,
on the I-75 freeway near Davidson in Detroit. First, an SUV driven by Keenan Lowe and insured
by USAA Insurance Company (USAA) hit a semi tractor-trailer driven by Steven Smukala and
insured by Northland Insurance Company (Northland) and rolled over in the middle of
southbound I-75.

        The southbound traffic on I-75 slowed down following the accident and several drivers
pulled to the right side of the freeway and stopped. Raymond Beebe, who was driving a Dodge
pick-up insured by State Farm Insurance Company (State Farm), was one of these drivers. The
last vehicle involved was a Jeep Cherokee operated by Michael McBride and insured by
plaintiff. McBride stated that he came around the bend traveling at approximately 65 miles per
hour; he applied his brakes, but the vehicle continued to slide and struck Beebe’s truck. After
striking Beebe’s truck, McBride’s vehicle slid into a group of three pedestrians standing along
the guardrail.

       The accident between McBride, Beebe’s truck, and the pedestrians occurred one to five
minutes after the initial collision between Lowe and Smukala. Smukala described the time
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between the two accidents as “fairly quickly” and “I don’t even think it was a minute”. Another
witness to the accident, Larry Fischer, stated that it was less than five minutes.

       Following these accidents, plaintiff paid no-fault personal protection insurance benefits to
the three injured pedestrians and then filed a no-fault declaratory and reimbursement action
against State Farm, Northland and USAA. Plaintiff claimed that the respective vehicles of the
insurance companies were involved in the crash, making the three insurers liable for a pro-rata
share of the PIP benefits paid out by plaintiff
       On appeal, plaintiff argues that the trial court erred in granting defendants’ cross-motions
for summary disposition pursuant to MCR 2.116(C)(10). We disagree. We review de novo
decisions regarding summary disposition. Morley v Automobile Club of Michigan, 458 Mich
459, 465; 581 NW2d 237 (1998).
       MCL 500.3115 determines the payment order for PIP benefits under Michigan no-fault
law and provides as follows:

                 (1) Except as provided in subsection (1) of section 3114, a person
       suffering accidental bodily injury while not an occupant of a motor vehicle shall
       claim personal protection insurance benefits from insurers in the following order
       of priority:

              (a) Insurers of owners or registrants of motor vehicles involved in the
       accident.

               (b) Insurers of operators of motor vehicles involved in the accident.

               (2) When 2 or more insurers are in the same order of priority to provide
       personal protection insurance benefits an insurer paying benefits due is entitled to
       partial recoupment from the other insurers in the same order of priority, together
       with a reasonable amount of partial recoupment of the expense of processing the
       claim, in order to accomplish equitable distribution of the loss among such
       insurers.

              (3) A limit upon the amount of personal protection insurance benefits
       available because of accidental bodily injury to 1 person arising from 1 motor
       vehicle accident shall be determined without regard to the number of policies
       applicable to the accident.

       The well-established test for determining no-fault motor vehicle involvement reads as
follows:

       [W]e hold 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
       damages is not enough to establish that the vehicle is “involved in the accident,”
       nor is fault a relevant consideration in the determination whether a vehicle is
       “involved in an accident.” Finally, as already indicated by our discussion in part
       A, the concept of being “involved in the accident” under § 3125 encompasses a
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       broader casual nexus between the use of the vehicle and the damage than what is
       required under § 3125(1) to show that the damage arose out of the ownership,
       operation, maintenance, or use of the motor vehicle as a motor vehicle. [Turner v
       Auto Club Ins Ass’n, 448 Mich 22, 39; 538 NW2d 681 (1955).]

        Plaintiff relies heavily upon Turner, which is a property damage case. But Turner’s
interpretation of “involved in the accident” has also been used to define that term under MCL
500.3115. See Turner, 448 Mich at 30. In Turner, there was a single series of events that took
place leading to the “active involvement” of all the vehicles. In this case, however, there were
two separate events; the fact that Lowe’s vehicle was left in the middle of I-75 is somewhat
irrelevant. The first crash left the disabled vehicle in the road and the second accident lead to the
injury of the pedestrians. According to several witnesses, these two events were separated by a
few minutes and a space of between fifty to one hundred yards. In keeping with the fact that
there was no active link between the two separate accidents, we can look to McBride’s own
admission that the two accidents were separated by separate lanes of four to five cars. Under the
Turner test, the trial court correctly concluded that there were two separate accidents: the first
between the Northland insured vehicle and the USAA vehicle and the second between the State
Farm vehicle and plaintiff’s insured vehicle.

        Plaintiff points to the Supreme Court’s holding that “physical contact or fault are not
relevant considerations in the determination whether a vehicle is ‘involved in an accident.’”
Turner, 448 Mich at 29. While this is true, the same decision pointed out that a mere “but for”
connection is not enough for there to be “active involvement” within the meaning of MCL
500.3121(1), which is the test for having to pay out PIP benefits. Turner, 488 Mich at 39.
Plaintiff’s contention that “the second accident would not have occurred without the first”
merely establishes “but for” causation.
        Although multiple witnesses’ statements about how quickly the second accident took
place and the relative proximity of the two accidents have merit, these simple connections are not
enough to establish involvement by the defendants’ insured vehicles. The fact that several other
vehicles were able to stop and avoid the initial motor vehicle accident shows that the second
accident was caused by McBride’s inability to stop, rather than the presence of the vehicle from
the first accident rolled over in the road. That is, the second accident was caused by McBride’s
failure to observe the basic speed law and maintain a safe, assured distance ahead.

       Affirmed. Defendants may tax costs.

                                                              /s/ David H. Sawyer
                                                              /s/ Patrick M. Meter
                                                              /s/ Karen M. Fort Hood




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