In McCormick v. Progressive, unpublished opinion per curiam of the Court of Appeals decided June 14, 2011 (Docket No. 297873) the plaintiff broke her leg in 1968 at the age of nine. Her doctors placed a pin in her tibia. An infection started in the bone, which worsened over time and went undiscovered until July 2007. Once it was discovered, the treatment involved hollowing out the bone. The plaintiff was not allowed to bear weight on her leg until the Fall of 2007.
On December 29, 2007, after plaintiff and her husband returned home in their pickup truck, the plaintiff began to exit the vehicle. As she was twisting out of her seat, she had one hand on the handle next to the passenger door and her right foot on the running board when she felt a snap and pain in her left hip. She had fractured her hip.
Her doctor testified that she may have had an underlying stress fracture, and that the motion of getting out of the vehicle may have caused it to become a fully dis-placed fracture. He stated that the bone infection and subsequent disuse of the leg may have contributed to the weakening of the bones in her hip and leg.
Defendant Progressive denied Plaintiff’s claim for no-fault benefits on grounds that her injury did not arise out of the operation, use or maintenance of a motor vehicle as a motor vehicle. The trial court rejected Progressive’s argument and held that it was obligated to pay the Plaintiff’s no-fault benefits.
Under MCL 500.3105(1), a no-fault insurer is liable for injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” In McKenzie v Auto Club Ins Ass’n, 458 Mich 214; 580 NW2d 424 (1998), the Supreme Court held that “whether an injury arises out of the use of a motor vehicle „as a motor vehicle‟ under § 3105 turns on whether the injury is closely related to the transportational function of motor vehicles.”
On Appeal, the Court stated that a vehicle can-not serve a transportational function unless passengers are able to both enter and exit the vehicle. Thus, the plaintiff’s injury arose from the use of the parked vehicle “as a motor vehicle.”
The Court went on to distinguish other cases where the injuries were held not to satisfy § 3105. In distinguisihing those cases the Court stated that: "In the present case, getting out of the vehicle forced the plaintiff to twist in her seat, which caused her hip to break. Because getting out of the vehicle was part and parcel of using it as a motor vehicle, plaintiff's use of her motor vehicle as a motor vehicle was casually connected to her injury. This connection is more than incidental, fortuitous or but for."