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STATE OF MICHIGAN
COURT OF APPEALS


ADRIAN DAVIDSON, Plaintiff-Appellant, v AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellee, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant.

UNPUBLISHED March 25, 2008

No. 275074 Wayne Circuit Court LC No. 05-534782-NF

Before: Fitzgerald, P.J., and Murphy and Borrello, JJ. PER CURIAM. Plaintiff Adrian Davidson appeals as of right the trial court's order granting defendant Auto-Owners Insurance Company's motion for summary disposition. Because we are constrained by MCR 7.215(J)(1) to follow this Court's opinion in Cooke v Ins Co of the State of Pennsylvania, 188 Mich App 453; 470 NW2d 432 (1991), and bound by our Supreme Court's adoption of the definition of the phrase "accidental bodily injury" as articulated by Cooke in Nehra v Provident Life & Accident Ins Co, 454 Mich 110; 559 NW2d 48 (1997), we affirm. I. FACTS AND PROCEDURAL HISTORY Plaintiff filed a complaint against defendants seeking to recover personal injury protection benefits under Michigan's no-fault statute, MCL 500.3101 et seq. The complaint alleged that plaintiff was injured on February 28, 2005, while riding in a vehicle that was owned by plaintiff's employer and insured by defendant Auto-Owners.1

Plaintiff had no-fault insurance on his own vehicle through defendant Progressive. The parties stipulated to dismiss plaintiff's claim against Progressive.

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The only evidence submitted by the parties consisted of excerpts from plaintiff's June 8, 2006, deposition. In the deposition, plaintiff testified that on February 28, 2005, he was training a new driver named Joe. The two men made deliveries for about thirteen hours that day, with plaintiff riding in the passenger seat and Joe driving. The truck was a 1996 Volvo truck. Plaintiff noticed that the passenger seat "had no suspension on it[.]" During the time on the road, plaintiff gradually developed worsening pain in his lower back. He attributed his pain to the fact that there were potholes on I-75 that caused the ride to be bumpy and to the fact that the men drove the truck without a trailer, and "[t]ruck suspensions don't work nearly as effective without a trailer on." The following day, plaintiff experienced significant pain in his lower back and right leg. Defendant Auto-Owners moved for summary disposition pursuant to MCR 2.116(C)(9) and (10), arguing that it was not liable to pay benefits to plaintiff because plaintiff's injury was not attributable to a single identifiable event, and an insurer is only required to pay benefits for injuries sustained in a single accident with an identifiable temporal and spatial location. AutoOwners contended that plaintiff was not involved in an accident because the injury to his back occurred over the course of a day of riding in the truck and could therefore not be attributed to a single identifiable event. Plaintiff argued that he was entitled to recover benefits under MCL 500.3105 because the statute, when strictly construed, only requires the injury to be accidental and arise out of the operation of a motor vehicle as a motor vehicle. Plaintiff's injuries occurred over the course of a single day, not months or years. In any event, MCL 500.3105 does not require that plaintiff's injuries were the result of a single identifiable event. Plaintiff was entitled to benefits because his injury occurred while he was a passenger riding in the truck and the injury was accidental, as opposed to intentional. Relying on this Court's decisions in Wheeler v Tucker Freight Lines Co, Inc, 125 Mich App 123; 336 NW2d 14 (1983), and Cooke, supra, the trial court granted defendant's motion for summary disposition. II. ANALYSIS Plaintiff seeks to recover benefits under MCL 500.3105. MCL 500.3105 provides, in relevant part: (1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. *** (4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or

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suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself. The issue in this case is whether plaintiff's injury constitutes an accidental bodily injury under the no-fault act. In a line of cases starting with Wheeler, this Court has required an accidental bodily injury to have an identifiable temporal and spatial proximity and has denied benefits to plaintiffs whose injuries did not result from a single identifiable event or accident. In Wheeler, the plaintiff was employed as a truck driver. Wheeler, supra at 124. "The rigors of truck driving, protracted over 19 years, eventually took their toll on Mr. Wheeler's back, disabling him completely by late 1979." Id. This Court held that the progressive degenerative injury was "not attributable to a single accident" and was therefore not an accidental bodily injury compensable under the no-fault act. Id. at 128. This Court explained: Plaintiffs argue that under [

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