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STATE OF MICHIGAN
COURT OF APPEALS


WALLACE G. PEARSON, Plaintiff-Appellant, v PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee.

UNPUBLISHED January 22, 1999

No. 204889 Marquette Circuit Court LC No. 96-032667 CK

Before: Markman, P.J., and Griffin and Whitbeck, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). The trial court determined that a shoulder disability suffered by plaintiff did not result solely from an "accidental bodily injury" since a pre-existing degenerative shoulder condition contributed to the disability and, therefore, recovery for enhanced benefits was precluded under the disability insurance policy that defendant issued to plaintiff. We reverse and remand for further proceedings. I. Basic Facts And Procedural History In 1984, plaintiff, a medical doctor, began experiencing pain in his left shoulder and was diagnosed with early and mild rotator cuff (or impingement) syndrome by Dr. J. Michael Coyne. Dr. Coyne found that plaintiff's syndrome was a "degenerative mechanical process secondary to progressive wear over a period of time," in which his rotator cuff was impinged upon by a bone spur. However, at that time, plaintiff responded well to treatment, experienced few continuing problems and continued working as a gynecologist. Dr. Coyne testified that even seven years later, degenerative changes in plaintiff's shoulder were still not very significant, although they were more evident than in 1984. In September 1991, plaintiff lifted a gas can over the gunwale of his boat. While lifting, plaintiff reported, he felt something in his shoulder snap. Subsequently, plaintiff experienced significant pain. When his shoulder did not seem to respond to nonsurgical treatment, plaintiff underwent arthroscopic -1

surgery, performed by Dr. Kenneth Davenport. During the procedure, Dr. Davenport discovered that plaintiff had a complete rotator cuff tear. The area was smoothed down during the surgery, but the tear was not repaired. Following surgery, plaintiff did not respond well to physical therapy and continued to experience pain. Thereafter, he was forced to discontinue his medical practice and he filed for disability insurance benefits from defendant. Plaintiff's insurance policy with defendant provided for monthly benefits of $1,000 for life if total disability was "the result of Injuries," but only until age sixty-five if total disability was "the result of Sickness." The policy defined injuries as "accidental bodily injuries occurring while your certificate is in force," and defined sickness as "sickness or disease which is first manifested while your policy is in force." Defendant paid benefits to plaintiff until he reached the age of sixty-five in May 1996, then discontinued payment because it considered plaintiff's disability to be due to "sickness." Plaintiff brought suit against defendant in 1996, alleging breach of contract. Subsequently, defendant moved for summary disposition. The trial court granted defendant's motion, finding that accidental bodily injury "requires accident on both ends of the equation, the cause of the injury and the resulting injury," such that "the voluntary act does not fit within the language of this policy . . . at least where there is an identifiable pre-existing process in place" that contributed to the disability. II. Standard Of Review This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994). MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.] III. Accidental Bodily Injury And Voluntary Acts As plaintiff argues, an "accidental bodily injury" can result from the unintended consequences of a voluntary act, such as lifting a gas can. In Collins v Nationwide Life Ins Co, 409 Mich 271; 294 NW2d 194 (1980), the Michigan Supreme Court determined that there was a distinction between accidental means and accidental death or injury: [A]ccidental death is an unintended and undesigned result arising from acts voluntarily done, whereas death by accidental means is a result arising from acts unintentionally done or events undesignedly occurring. [Id. at 275, quoting 10 Couch, Insurance (2d ed),

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