Mold remediation requires expert handling

Cleaning Contaminated Contents: The Neglected Aspect of Remediation

A Large and Complex Challenge for Restoration Professionals
The challenge of properly dealing with damaged contents is present in just about every loss. The cumulative effect is quite astounding from a monetary standpoint with the latest available estimate of the annual cost of damaged contents in the U.S. from fire and floods at 2.7 billion dollars1. Nor does that represent the total cost. Unfortunately, getting an estimate of the cost of contents damaged from sewage backflows and trauma incidents is difficult because many of those losses are not covered by insurance. As State Farm insurance company bluntly states in their website factsheet entitled Reduce sewer and drain losses in your basement:

• Each year, sewer and drain backups cause millions of dollars in damage to the homes owned by State Farm® policyholders. State Farm homeowner policies do not cover losses incurred from sewer or drain backup.

Cleaning of hard non-porous contents that are subjected to fire and smoke damage, flooding, sewage backflow, or blood borne pathogens is fairly straightforward. However, considerably more time and effort is expended on the cleaning of soft contents to the point where cash out of such materials has become the norm for the industry. The difficulty in salvaging soft contents is related to both the concerns of the contractors as well as the claimant and other individuals involved in the restoration process. Specifically the difficulty in salvaging soft contents is related to four different concerns:

• Anxiety of the contractors about their ability to properly clean a wide variety of items.
• Hesitancy of safety and health professionals to document that the cleaning was conducted appropriately.
• Perception of the claimant that such items cannot be restored.
• Reluctance of insurance adjusters to undertake cleaning rather than cash-out if the insured is going to resist accepting the items.

Dealing with fire, flood, sewage, or blood contaminated contents raises a host of safety and health questions for both the contractors responding to the situation and the occupants who must live with the consequences of decisions made in the field. Because of the wide variation in cleaning effectiveness of standard processes for such losses (such as onsite vacuuming and hot water extraction or off site cleaning using standard laundry or dry cleaning techniques) it has been difficult for restoration professionals to determine if such impacted contents have been
properly cleaned without destructive testing or massive testing protocols. As such, the response to such losses has generally involved the cash out of any soft goods or porous materials which are damaged in such cases. While this conservative approach does protect the occupants, it is expensive and wasteful if a proven alternative is available.

Mold exposure update

Symptoms can range from chronic fatigue to brain damage if you have exposed to toxic molds in an indoor environment. Unfortunately most doctors are not trained to identify and treat such exposure. Dr Ritchie Shoemaker of Maryland is an expert in the area of toxic substance exposure and he leads the way in our country helping victims.

An excerpt from his blog is "YES!!! I was euphoric! After years of illness and watching my health and the health of friends like Christine Goldman deteriorate, a ray of sunshine had finally come after the storm. I knew that I still had hurdles to overcome, but I at least had a sporting chance of presenting my case in a forum outside the school system."

In Surviving Mold (a recent book by Dr Shoemaker), Dr. Shoemaker shares his latest findings and offers hope to those who have been continually let down by the medical community. Containing Dr. Shoemaker's cutting-edge research into the effects of chronic neurotoxins, Surviving Mold also examines in-depth the root causes of the growth of dangerous mold forms in buildings and homes.

And for the first time, Dr. Shoemaker’s lectures are available for physicians to be trained in his protocols, and patients to learn about their illness, as well as collation of research data. Learning how to use an organized approach to diagnose and treat biotoxin illnesses opens an entire new world on the dead ends of guesses, assumptions and use of questionable lab results that are still ongoing.

Fall off stage plank

If you chooses to walk a plank and fall, it's probably your fault and you can't sue the ship's captain.

The court held that while a dangerous open and obvious condition is not necessarily effectively avoidable simply because it was successfully avoided, "if the condition is avoided multiple times, that does show that it was effectively avoidable." In this case, "the hazardous situation of the narrow walking area and unguarded back of the elevated stage was successfully navigated multiple times by multiple people, including" the injured plaintiff. Thus, the court concluded that the trial court erred in finding there was a question of fact as to whether it was effectively unavoidable and in denying the defendant's summary disposition motion. The injured plaintiff fell off a raised stage platform while walking on it during an event held on defendant's premises. She was a speaker at the event. The stage was set up with stairs at each end, a table along the front with a podium in the middle, chairs at the table, and a space along the back for traversing the stage (or getting from a seat to the podium and back). Neither party disputed that the stage was set up some distance from the wall behind it, and there was no guardrail at the back. After reviewing the photos submitted by the parties and the injured plaintiff's testimony, the court found that "it was unambiguously obvious that the stage was raised off the ground, had a narrow area in which to walk behind the chairs on the stage, and was unguarded at the back. It should go without saying that an average adult would be aware that falling off a raised platform would be dangerous and that there is an increased risk of doing so when maneuvering room is tight and railing is absent." Further, the stairs to ascend or descend the stage were at the far ends, giving anyone approaching the stage a clear view of the situation. The court concluded that under the circumstances, "a reasonable person would have been aware of the danger posed by the raised stage with its narrow walking area and unguarded rear." The more difficult question was whether the hazardous condition was effectively unavoidable. "A condition is 'effectively unavoidable' if it cannot be avoided by an invitee without that invitee avoiding the premises altogether." The court concluded that just because the injured plaintiff "technically could have refused to ascend the stage, the hazard was not therefore effectively avoidable." The court also noted that "'effectively unavoidable' does not necessarily mean 'absolutely unavoidable.'" However, the "number of times a hazard is safely bypassed will eventually show that that avoidance of harm is not a statistical fluke." Defendant cited several unpublished opinions involving situations where a hazard was faced numerous times by numerous people without any harm befalling them before an injury was suffered by the plaintiffs. The court concluded that the cases defendant cited were "consistent with the most rational way of evaluating the effective unavoidability of a hazard where that hazard has been successfully avoided" - "the more frequently a hazard is traversed without harm, the more likely it is that the hazard is effectively avoidable." While the hazard here did not appear to have been faced by a great number of people over an extended period of time, the evidence showed that "the statistical fluke" was the injured plaintiff's fall, not the other speakers' safety. Thus, the court concluded that under the circumstances, the facts showed that the hazard was not effectively unavoidable. Reversed.

Injury in a City

The case below shows that if your lawyer is not thorough in their notice to a City of injury then the case may be dismissed forever.

Because the plaintiff's notice did not specify the exact location of the alleged defect within the meaning of MCL 691.1404(1), the court held that the notice was insufficient, plaintiff was not entitled to proceed against the defendant-City under the highway exception, and the City was entitled to governmental immunity as a matter of law.Thus, the trial court erred by denying the defendant-City's motion for summary disposition. Reversed and remanded for entry of judgment in favor the City. Plaintiff was walking in the City when he fell on a public sidewalk, sustaining injuries to his left leg. He alleged that he had tripped on a portion of the sidewalk that was cracked or uneven. He notified the City in writing that he had tripped on an allegedly defective sidewalk while "walking east on Huron Street" and that his injury had occurred at "35 Huron, Pontiac, Michigan." Plaintiff claimed that the City had failed to maintain the sidewalk in reasonable repair and that the sidewalk was unsafe for public travel. The City argued that plaintiff failed to comply with MCL 691.1404(1) because his notice was not sufficiently detailed. In particular, the City argued that the words "35 Huron, Pontiac, Michigan" did not sufficiently identify the exact location of plaintiff's alleged injury. The City contended that because there was both a 35 West Huron Street and a 35 East Huron Street, the language of the notice was ambiguous. The court held that plaintiff's notice did not specify whether the alleged defect was located at 35 West Huron Street or 35 East Huron Street, both of which were actual addresses in the City. Nor did his notice specify whether the alleged defect was located on the north side or south side of Huron Street. Nor was the photographic evidence provided by plaintiff in response to the City's motion for summary disposition sufficient to cure the insufficient notice. "The photographs were submitted more than 120 days after plaintiff's injury," thus it was improper for the trial court to consider them as part of plaintiff's notice. This was true even if the untimely submission of the photographs did not prejudice the City in any way.

Auto accident reimbursement

In the case below it appears that the injured party attempted to make up expenses, and the Judge properly denied his claim.

Holding that the plaintiff-Phillips failed to meet his burden under MCR 2.116(C)(10), the court affirmed the trial court's grant of summary disposition in favor of defendant-Auto-Owners. Phillips was injured in an accident when his motorcycle and an automobile collided. Auto-Owners was the insurer of the automobile involved in the accident, and since the accident has paid all the claims Phillips submitted for his medical expenses. However, Phillips filed a complaint against Auto-Owners alleging that Auto-Owners "has refused and neglected to pay a number of [Phillips'] benefits due under the no-fault law including medical and hospital expenses, wage loss benefits, medical mileage, and other benefits." Auto-Owners maintained that it paid all benefits that Phillips was entitled to receive. During his deposition, Phillips admitted that Auto-Owners paid every claim that he submitted, and that he had not communicated with any Auto-Owners representatives or employees as to the claims he maintained were not paid by Auto-Owners. As to his claim for "medical mileage," he admitted that he had not calculated the actual mileage for each of his medical appointments. He also claimed to have some receipts from prescription medications for which he was not reimbursed. However, he admitted he did not know the total dollar amount that he was claiming was owed to him for reimbursement. The receipts were not part of the trial court record and apparently were not presented to the trial court. "No other evidence was referenced during the deposition or presented to the trial court as to Phillips' remaining claims." He claimed that his deposition testimony created a genuine issue of material fact as to whether Auto-Owners failed in its obligations to pay allowable expenses pursuant to the No-Fault Act. However, the court concluded that "Phillips did not present any evidence to rebut Auto-Owner's deposition evidence" showing that he never submitted any claim to Auto-Owners that was not paid. The court held that it was clear that Auto-Owners never received reasonable proof of the fact and of the amount of loss sustained because a claim for the benefits was never submitted by Phillips. Thus, there was no evidence to support his representation that Auto-Owners refused to pay allowable expenses that it was liable for under the No-Fault Act, and summary disposition in favor of Auto-Owners was appropriate.

Medical Malpractice

When medical malpractice claim involves non medical employees, it must be determined if the violation required medical judgment before summary disposition is appropriate.

Concluding that the trial court acted prematurely in determining the nature of the plaintiff's claims without the benefit of discovery or other factual development, the court reversed the trial court's order granting the defendants' summary disposition motion on the basis that all of the claims arose solely in medical malpractice. Plaintiff filed a negligence action seeking damages for a double-mastectomy that was performed despite the fact that a biopsy revealed she did not have breast cancer. The complaint included "alternative allegations as to how the surgery went forward despite the negative biopsy finding, including a failure of clerical employees or medical employees to transmit and/or file the biopsy report as well as assertions that the surgeon conducted the surgery without requesting and/or reviewing the biopsy report." Plaintiff alleged that on 7/27/09, at age 34, she was seen by defendant-Maresca (a surgeon) for a suspicious lump in her left breast. The first amended complaint alleged that after conducting a physical exam, Maresca concluded that a fine needle aspiration biopsy should be conducted to determine if the lump was cancerous. She performed the fine needle aspiration and sent the resulting sample to the defendant-hospital's pathology department for analysis. Maresca allegedly told plaintiff at the office visit "that she believed the lump was cancerous and strongly recommended surgery as soon as possible." Maresca recommended a left breast mastectomy and, given the diagnosis, as well as plaintiff's family history, also recommended a prophylactic removal of the right breast. Plaintiff agreed to the procedures and surgery was scheduled for 8/5. Two days after the office visit and a week before the planned surgery, the specimen was analyzed by a pathologist in the hospital's pathology department. The pathologist's report stated that the specimen was not cancerous. The complaint alleged, inter alia, that "the results of the fine needle aspiration taken of the lump in plaintiff's left breast . . . was misfiled, misidentified, and/or otherwise not physically placed in plaintiff's medical or hospital chart prior to the mastectomy surgery." It also stated that "a copy [of the pathology report] . . . should have been sent, routed and/or otherwise made available to [Dr.] Maresca." Further, the complaint asserted that due to the hospital's "agents, servants and/or employees[']" failure to transmit the report and/or place it in plaintiff's file, Dr. Maresca remained unaware of the pathologist's findings and so proceeded with the surgery during which she removed both of plaintiff's breasts. The court noted that the Michigan Supreme Court made it clear in Bryant that "the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts." The complaint "was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed, and whether it was seen by or available to the surgeon." Thus, it necessarily spoke broadly and encompassed both medical and non-medical personnel. Whether or not the persons "responsible for the alleged miscommunication were medical professionals or clerks, secretaries, or other non-medical personnel is not yet known, except perhaps to defendants." Further, "even if some or all the relevant actions or omissions were committed by medical professionals, it was similarly premature for the trial court to determine whether those actions or omissions involved medical judgment." Remanded.

Mold contamination and bleach

Bleach is not a very good idea for mold remediation or restoration for sewage, floods, etc. Bleach does not have much of a residual sanitizing effect on organic hazards. It is so toxic to some materials that when used liberally it can compromise the stability of load bearing walls and other construction products including metals. When mixed with other chemicals trhe consequences can be deadly, especially if mixed with ammonia. There are cost effective alternatives that have a true residual effectiveness on organic hazards. Below is an excerpt from Dr Shoemakers blog.

Why Restoration Professionals Should Avoid Using Bleach

There are many situations in which restoration professionals may think that use of bleach as a cleaner/sanitizer is effective. Indeed, there are certain restoration projects, such as sewage backflows, floods, and even mold remediation, where individuals have been taught to use bleach as part of their restoration protocol. This history is supported by continuing references in publications put out by numerous organizations including the EPA, American Red Cross, Salvation Army and others. The use of bleach as a “disinfectant” seemed to reach new heights over the past few months as semi-truckloads of the chemical were donated for disaster relief efforts in the Gulf states following hurricanes Katrina and Rita.

Despite this surge in bleach use for restoration of water-damaged and mold-impacted environments, I have one thing to say about the situation: Professional restoration contractors should not be using bleach for cleaning, sanitizing, or disinfecting surfaces! Of course this opinion comes with a few caveats: I do not have any financial or management interest in a chemical company that manufactures bleach or alternative chemical products. I have never been seriously injured by bleach in a personal or industrial accident. I use bleach for my laundry and a bleach derivative for sanitizing my swimming pool water.

So the question that is obvious is, Why is this environmental engineer so adamant about contractors not using bleach? The answer is related to both practical and legal implications for restoration professionals.

Practical Considerations
Let’s start with the practical considerations. Bleach is favored by many because of its long history of use by homeowners for cleaning and stain removal. Its relatively low cost has made it so widely available that its odor is now commonly associated with cleanliness by the general public. But in contrast to this widespread use are its dangers. Bleach is a corrosive that can irritate and eventually cause considerable damage to the skin. Bleach releases chlorine gas as it is sprayed or evaporates. The effect of bleach vapors on the eyes and respiratory system are immediately evident to anyone who is in an area where the product is being used liberally. Because of these potential effects on the body, appropriate personal protective equipment such as gloves, goggles, and respirators should be employed when bleach is utilized for situations beyond laundry. However, such essential precautions are often ignored because of the product’s acceptance in the mainstream of our society.

There are many practical impacts of bleach use beyond health concerns. Restoration professionals must appreciate the highly reactive nature of this chemical compound. The fact that bleach is used for stain removal and whitening means that it can also discolor and damage many fabrics. Less obvious is how bleach reacts with other materials. It is corrosive to many metals and stone products. It should never be used on stainless steel, aluminum, copper, brass, marble, or granite. In fact, bleach is so strong that it will etch glass if it is not neutralized after application to surfaces such as mirrors and windows. In New Orleans I observed how bleach solution had significantly corroded electrical components and anchoring bolts for load-bearing walls after less than 24 hours in a house where the drywall had been stripped due to flooding. In that particular case, the builder had been given bleach to use as a sanitizer and had sprayed it undiluted on all of the exposed studs and other building components.

A Bad Reaction
The reactive nature of bleach is even more troublesome when it is mixed. Bleach should never be mixed with acids, as dangerous fumes are usually the result. Even a mixture of two innocuous cleaning compounds such as bleach and ammonia can produce deadly gasses that can kill with just a few breaths. Depending on the ratio of bleach to ammonia, chlorine gas, nitrogen trichloride and/or hydrazine will be produced when these two are mixed. In addition to being toxic the last two listed by-products from this bleach mixture are also explosive. Other reactive by-products that can come from bleach mixtures are toxic chloramines and dioxins. With all of these potential “side effects” a restoration professional is taking a significant chance when bleach or a bleach solution is applied to varied materials in an uncontrolled environment – exactly the situation that occurs when bleach is sprayed following a sewage loss or fire.

Perhaps the most misunderstood aspect of bleach when proposed as a cleaner or sanitizing agent is that its effectiveness is greatly reduced in the presence of organic material. To be a successful sanitizer, bleach must be used on clean materials and surfaces. This is why bleach products are used in the laundry after the wash cycle or in a commercial kitchen as a component in the third sink after the dishes have been washed and rinsed. The efficacy of bleach as a sanitizer is also compromised by heat and light. Despite the fact that the chlorine odor may linger for some time after use, bleach loses strength so quickly that it is not considered to have a residual effect that would prevent future bacterial or fungal growth.

The last, but by no means the least, issue related to the practicality of bleach for restoration projects is that many alternatives are readily available for contractors that need to incorporate a level of sanitization into their cleaning or restoration activities. These products are specifically developed for restoration projects such as sewage clean-up or mold remediation. They have been tested for the sorts of conditions and contaminants that the contractor faces rather than testing as a laundry additive. In areas where potable water is a concern, there are many
formulations that are ready to use, avoiding the dilemma of having to use the product full strength or mixing it with contaminated water. In addition to their cost effectiveness and ease of use, many sanitizing products developed for the restoration industry have a true residual effect which prevents bacterial or fungal regrowth.

The Trap of Label Directions
If the practical reasons are not enough to change a contractor’s habits away from bleach, the legal ramifications should be. Most bleach products are not registered with the EPA as an antimicrobial. In addition, the label directions for bleach often only mention a sanitizing capability for hard non-porous surfaces. As such, using a bleach solution to minimize antimicrobial activity on carpets, drywall, wooden studs, or other common building components means that the restoration contractor is engaged in an “off label” utilization of the product. Under such conditions the manufacturer will not warrant or assist the contractor if a problem or dispute arises.

So there you have it. Bleach is cheap, convenient, and recommended to a lot of homeowners for various restoration activities, but it is not the best choice for a contractor. As a restoration professional you have an obligation to understand what the standard of care in your industry demands and provide a quality service to your client. This means using the right tools and products. So leave the bleach at home for the load of white laundry where it belongs.

About the Author
Michael A. Pinto currently serves as Chief Executive Officer of Wonder Makers Environmental, Inc. He has more than 30 years of safety and environmental experience from jobs in the private sector, the non-profit arena, and regulatory agencies. Michael is the author of five books, including Fungal Contamination: A Comprehensive Guide for Remediation, over 150 published articles, and 18 commercial training programs. He can be reached at map@wondermakers.com.

Nursing Malpractice

If you are a nurse supervising other nurses, that counts as engaging in the practice of nursing for the purpose of determining whether you can testify to the standard of care as an expert in Michigan.

The court held that the plaintiff-PR's proposed nursing expert (B) spent significantly more than 50% of her professional time in the active clinical practice of nursing or instructing nursing students and that the trial court erred when it determined that B did not meet the qualifications stated under § 2169(1). Because B was qualified to testify about the SOC, the trial court also erred when it dismissed the PR's claim on the ground that she did not have an expert to establish the SOC for the malpractice claim. The decedent-Wright was admitted to defendant-Select Specialty Hospital to treat her rheumatoid arthritis, including associated rheumatoid lung disease. She responded well to the treatments and, on Thursday, learned that she would be discharged from the hospital on the following Monday. However, the next day a nurse assisted Wright to a commode, but left her unattended. Wright reached for her ringing phone and fell from the commode. She injured her head, fractured her shoulder, and died two days later. The PR alleged that the fall was a direct and proximate result of the hospital's nursing staff's negligence and that the fall ultimately led to Wright's death. The PR retained B to offer an expert opinion about the applicable SOC. However, after the hospital deposed B, it moved to strike her as a witness and dismiss the case. The hospital argued that B could not testify about the applicable SOC because she did not meet the professional time requirement stated under § 2169(1)(b). The hospital presented B's deposition testimony in which it claimed she admitted that she spent the majority of her professional time serving as an administrator. Also, because the time limit for adding witnesses had passed, the hospital argued that the PR should be precluded from adding an expert to testify as to the applicable SOC. The hospital further maintained that the trial court had to dismiss the suit because the PR would not be able to establish this element of its claim. The trial court determined that B did not spend any portion of her professional time in either the active clinical practice of nursing or in the instruction of nurses at an accredited health professional school, an accredited residency, or a clinical research program. However, "the trial court made this determination despite the fact that there was plain - and unrebutted - evidence" that B "engaged in both the active clinical practice of nursing and instructed nurses at an accredited residency or clinical research program." The trial court apparently disregarded an aspect of B's professional work because she supervised the orientation of nurses and was not directly involved in the care of patients. "But the Legislature did not impose any such requirement. Rather, the Legislature provided that a witness might testify as an expert if he or she spent the majority of his or her time in the 'active clinical practice.'" Since the Legislature did not define the phrase "active clinical practice," it must be given its ordinary meaning. The key question was whether B was actively engaged in the nursing profession in a clinical setting. B testified that she spent 25% of her professional time orienting nurses to their units. The "act of orienting nurses within a hospital involves some degree of explaining, coordinating, and instructing nurses as to the proper care of their patients. And explaining, coordinating and instructing nurses about the proper care of patients in a clinical setting necessarily involves - albeit indirectly - the treatment of patients." Thus, it was undisputed that B spent 25% of her professional time engaged in the "active clinical practice" of nursing. Further, B unequivocally testified that she took an active role in the care of patients while orienting nurses. B also testified that she spent 50% of her professional time teaching at the hospital, which she averred was accredited as a residency program. This, coupled with her time engaged in the active clinical practice of nursing, clearly constituted more than 50% of her professional time and thus, met the professional time requirement stated under § 2169(1)(b). Reversed and remanded.

Auto accident, a jury should hear the evidence

Whether someone acted negligently when driving is generally a question for the trier of fact.

The court held that genuine issues of material fact precluded summary disposition as to whether defendant-Cooley's actions after he realized he had driven beyond the driveway into which he wished to turn and defendant-Quinn's actions in slowing or stopping in the travel lane of the road were reasonable under the circumstances. Thus, the court reversed the trial court's order granting them summary disposition and remanded for further proceedings. The case arose from a motor vehicle accident on a curved portion of a two-lane highway with a "substantial" paved shoulder. The weather at the time of the accident was clear and sunny, and the road was dry. The plaintiff-PR's decedent was driving her motorcycle northbound on the road. A succession of three vehicles was driving southbound on the road - a truck driver by Cooley, a van driven by Quinn, and a truck driven by defendant-Adams. After Cooley missed a right turn into a driveway, he pulled his truck onto the shoulder of the road. Seeing him slowing and pulling to the side of the road, Quinn either slowed her van or stopped it completely in the roadway or partially on the shoulder of the roadway. "In an effort to avoid colliding with Quinn, who he perceived to be stopped in the southbound lane of the roadway as he rounded a sweeping curve," Adams drove his truck across the double yellow center line into the northbound lane, colliding with the decedent's motorcycle and causing her death. Adams and his father (the owner of the truck) reached a settlement with plaintiff and were dismissed from the case. Cooley and Quinn successfully moved for summary disposition. Quinn argued that reasonable minds could not conclude that she acted negligently, and that her conduct was appropriate and reasonable. Cooley argued that the evidence did not show that he breached any applicable duty or that his truck was a proximate cause of the decedent's death. The court noted that like Adams, Cooley and Quinn "had a duty to operate their vehicles with the degree of ‘reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstance,'" and "in the manner prescribed by the motor vehicle code." In determining that there was no question of material fact that Cooley and Quinn fulfilled this duty, "the trial court impermissibly resolved questions of fact and determined the credibility of witnesses." The court concluded that viewing the evidence in the light most favorable to plaintiff, there were questions of material fact as to "whether Cooley and Quinn operated their vehicles in a nonngeligent manner in the moments immediately preceding the accident." To determine if either Cooley or Quinn acted negligently, the trier of fact had to resolve outstanding issues as to the manner in which Cooley operated his truck upon passing the driveway and whether he pulled completely onto the shoulder of the road or remained in the travel lane, and whether Quinn appropriately stopped or slowed in the travel lane when approaching his truck. The court concluded that competent evidence was presented "from which it could be inferred that Cooley made a sudden or abrupt stop and/or that he was not completely off the travelled portion of the roadway when Quinn came upon his vehicle." There was also evidence from which a jury could find that Quinn responded to the presence of Cooley's truck other than by "‘easily slow[ing] her vehicle,'" and that the degree of her response was not warranted by the circumstances.

Auto accident from prior accident

If you have an accident because of injuries from a prior accident, the no-fault insurer of the first accident still is liable to provide coverage for you injuries in the second accident.

Viewing the evidence in the light most favorable to plaintiff-Ian, the court held that sufficient evidence established a question of fact as to whether the 2008 motorcycle crash "originated from," "had its origin in," "grew out of," or "flowed from" the 2007 car accident. Thus, the court held that the trial court properly ruled that fact questions precluded summary disposition in the defendant-Progressive's favor. In 11/07, Ian rode as a passenger in a car driven by his brother, defendant-Christopher. Christopher lost control of the vehicle and it struck a freeway guardrail. Ian's head struck a deployed airbag. According to Dr. A, Ian suffered a grand mal seizure triggered by the head injury and his ingestion of Adderal, a prescribed amphetamine. A opined that Ian also probably has an "underlying genetic predisposition" to seizures. After hospitalization for treatment of the initial seizure, Ian received follow-up neurological care from Dr. S, an epilepsy specialist. Progressive was responsible for paying no-fault benefits related to the 2007 accident. In 9/08, while riding his motorcycle Ian "sort of had the same feeling I had from my first seizure, and then I didn't have enough time to pull over or anything. Before I knew it, I just kind of blacked out." His motorcycle crossed four lanes of traffic and struck a parked car. He suffered severe injuries in the 2008 accident, including ventilator-dependent quadriplegia. Ian submitted to Progressive a first-party, no-fault benefits claim arising from the motorcycle crash. It denied coverage, asserting that his claim related only to the 2008 accident and that he forfeited any entitlement to benefits because he neglected to insure the motorcycle. However, the accident for which Ian sought first-party no-fault benefits occurred in 11/07. He contended that his current injuries, including his seizure disorder, arose from his brother's operation of the insured motor vehicle that struck the guardrail. Drs. S and A unequivocally connected Ian's seizure disorder to the trauma he experienced when his head collided with the air bag. "This evidence could support a jury's reasonable conclusion that Ian's 2008 bodily injuries arose from Christopher's operation of the vehicle involved in the 2007 crash. Alternatively stated, the connection between Ian's injuries and the 2007 accident 'is not so remote or attenuated as to preclude a finding that it arose out of the use of a motor vehicle.'" The evidence reasonably supported that "the causal connection between the injury and the use of the motor vehicle was more than incidental, fortuitous, or 'but for.'" The court rejected Progressive's argument that the motorcycle accident constituted a separate and superseding cause of Ian's spinal cord injury, supplanting any relationship between the first accident and the second. "Had Ian injured his spinal cord in 2008 by falling from a ladder during a seizure, Progressive would potentially bear liability. That Ian instead suffered a seizure while riding a motorcycle does not, standing alone, eliminate any connection between his 2007 head injury and the 2008 events." Ian established a triable issue of fact whether his spinal injuries arose from Christopher's operation of the vehicle involved in the 2007 accident. While it was indisputable that the motorcycle accident constituted the most proximate cause of Ian's spinal cord injury, he asserted that his quadriplegia "arose out of" Christopher's operation of a motor vehicle. He based his benefit claim solely on the 2007 accident. Thus, the issue was whether any evidence supported that his quadriplegia arose from that accident. Evidence supported that the first accident bore a "connective relationship" with the second. Affirmed.