M Civ JI 35.02 No-Fault First-Party Benefits Action: Burden of Proof

The plaintiff has the burden of proving:

(a) *(that at the time of the accident there existed a valid contract of no-fault insurance between [ name of insured ] and defendant)

(b) †(that plaintiff’s injuries arose out of the [ ownership / or / operation / or / maintenance / or / use ] of a motor vehicle as a motor vehicle)

(c) †(that plaintiff incurred allowable expenses which consist of reasonable charges for reasonably necessary products, services and accommodations for the plaintiff’s care, recovery or rehabilitation)

(d) †(that plaintiff suffered a work loss which consists of a loss of income from work the plaintiff would have performed during the first three years after the accident had [ he / she ] not been injured)

(e) †(that plaintiff reasonably incurred replacement service expenses which consist of expenses during the first three years after the accident to obtain ordinary and necessary services in place of those that plaintiff would have performed for [ his / her ] benefit and the benefit of [ his / her ] dependents)

(f) †(that the death of plaintiff’s decedent arose out of the [ ownership / or / operation / or / maintenance / or / use ] of a motor vehicle as a motor vehicle)

(g) †(that following the death of [ name of decedent ], dependents of [ name of decedent ], during the first three years after the date of the accident, sustained a loss of contribution of tangible things of economic value, not including services, that the dependents would have received for their support during their dependency, if [ name of decedent ] had not died)

(h) †(that following the death of [ name of decedent ], dependents of [ name of decedent ], during the first three years after the date of the accident, reasonably incurred expenses during their dependency and after the date [ name of decedent ] died, in obtaining ordinary and necessary services in place of those that the decedent would have performed for the benefit of the dependents)

(i) †(that plaintiff incurred funeral and burial expenses)

(j) that the defendant failed to pay any or all of said benefits.

To the extent that plaintiff has met or has not met [ his / her ] burden of proof, you may grant, diminish or deny the claimed benefits according to the methods of computation which I will describe next.

Note on Use

*Delete where not an issue. If an issue, the Court should determine what contractual relationship must be proved under MCL 500.3114, .3115.

†Delete any of the subsections which are not at issue in the lawsuit.

Where the facts are not in dispute, the question whether the injury “arose out of” use of a vehicle as a motor vehicle is a legal issue for the court to decide and not for the jury. Putkamer v Transamerica Insurance Corp of America, 454 Mich 626; 563 NW2d 683 (1997). In such a case, subsection (b) should be deleted.

Comment

The term “arose out of” in subsection (b) has been the subject of litigation. See, e.g., Putkamer; Morosini v Citizens Insurance Co of America, 461 Mich 303; 602 NW2d 828 (1999); McKenzie v Auto Club Insurance Ass’n, 458 Mich 214; 580 NW2d 424 (1998); Thornton v Allstate Insurance Co, 425 Mich 643; 391 NW2d 320 (1986); Williams v Citizens Mutual Insurance Co of America, 94 Mich App 762; 290 NW2d 76 (1980); O’Key v State Farm Mutual Automobile Insurance Co, 89 Mich App 526; 280 NW2d 583 (1979); Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975); Shinabarger v Citizens Mutual Insurance Co, 90 Mich App 307; 282 NW2d 301 (1979); Detroit Automobile Inter-Insurance Exchange v Higginbotham, 95 Mich App 213; 290 NW2d 414, lv den, 409 Mich 919 (1980); Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979); Ciaramitaro v State Farm Insurance Co, 107 Mich App 68; 308 NW2d 661 (1981), lv den, 413 Mich 861 (1982); McClees v Kowalski, No 44711 (Mich App, Dec 28, 1979) (unreported); Buckeye Union Insurance Co v Johnson, 108 Mich App 46; 310 NW2d 268 (1981); Smith v Community Service Insurance Co, 114 Mich App 431; 319 NW2d 358 (1982); Mann v Detroit Automobile Inter-Insurance Exchange, 111 Mich App 637; 314 NW2d 719 (1981); Gajewski v Auto-Owners Insurance Co, 112 Mich App 59; 314 NW2d 799 (1981), rev’d, 414 Mich 968; 326 NW2d 825 (1982); Bromley v Citizens Insurance Co of America, 113 Mich App 131; 317 NW2d 318 (1982).

These cases hold in essence that there must be causal connection between the injury and the operation, use, ownership or maintenance of a motor vehicle, which connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use of the motor vehicle. The injury must be closely related to the transportational function of motor vehicles. (McKenzie; Morosini.) Proximate cause is not required; however, it is generally not sufficient that the motor vehicle is merely the site of the accident. If the motor vehicle is one of the causes, a sufficient causal connection exists even though there are other independent causes.

Plaintiff’s injuries may arise out of maintenance (repairing) of a motor vehicle without regard to whether the vehicle may be considered “parked” at the time of the injury. Miller v Auto-Owners Insurance Co, 411 Mich 633, 309 NW2d 544 (1981); but see MCL 500.3106(2), which denies first-party benefits under certain circumstances to employees covered by worker’s compensation who are injured loading, unloading, or repairing a vehicle, or entering into or alighting from a vehicle.

The motor vehicle from which the injuries arose need not be a registered or covered motor vehicle. Lee v Detroit Automobile Inter-Insurance Exchange, 412 Mich 505; 315 NW2d 413 (1982).

While MCL 500.3135(2) has been construed to retain tort liability of nonmotorist tortfeasors, the no-fault insurer is still obliged to pay first-party benefits. Citizens Insurance Co of America v Tuttle, 411 Mich 536; 309 NW2d 174 (1981).

2019 PA 22 amended the Michigan No-Fault Insurance Act (MCL 500.3101 et seq) and introduced, among other reforms, new PIP choice options that apply to allowable expense benefits payable pursuant to MCL 500.3107(1)(a). By way of example, the reforms made by 2019 PA 22 include potential caps on allowable expense coverage, allowable expense fee schedules, the potential for managed care policies and limitations on certain attendant care benefits. Many of these issues will be matters of law for the Court to decide, absent stipulation by the parties. It is strongly recommended that the Court and parties consider the ramifications of 2019 PA 22 on certain aspects of cases when fashioning jury instructions and verdict forms and endeavor to resolve any legal issues that are not stipulated to by the parties prior to jury selection. The allowable expense fee schedules do not apply when the accident took place prior to June 11, 2019. Andary v USAA Cas Ins Co, 512 Mich 207, 216; 1 NW3d 186 (2023).

History

M Civ JI 35.02 was added November 1980. Amended January 2020, October 2022, September 2025.