Noneconomic Loss Damages

Noneconomic Loss Damages (Pain and Suffering, etc.)

Under Michigan law, noneconomic damages consist of those losses that affect a person’s quality of life, such as pain and suffering, incapacity, disability, loss of function, diminished social pleasure and enjoyment, mental anguish and emotional distress, scarring and disfigurement, etc.pain-and-suffering-disability

Section 3135 of the Michigan No-Fault Act states that an accident victim is only entitled to recover damages for noneconomic loss if the victim sustained a “threshold injury.” Under the Act, a threshold injury consists of one or more of the following:

  1. serious impairment of body function;
  2. permanent serious disfigurement; or
  3. death.

In 1995, the Michigan Legislature enacted an important amendment to the No-Fault Act (1995 PA 222) that, in Subsection 3135(7), redefined the threshold element of “serious impairment of body function.” The new definition states: “serious impairment of body function means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”

The Legislature did not, however, define the threshold element of “permanent serious disfigurement.” The issue of whether an injury rises to the level of “serious impairment of body function” or “permanent serious disfigurement” is a matter that depends upon the facts and circumstances of each individual case.

Obviously, the more serious the injury, the more likely that the injury “crosses the threshold.” However, the courts have held that an injury need not be permanent in order to be a “serious impairment of body function.”

In the case of Kreiner v Fischer, 471 Mich 109 (2004), the Michigan Supreme Court significantly restricted the type of injuries that can qualify as a serious impairment of body function. In this decision, the Court held that the injured person’s normal life before the accident must be compared with his or her life after the accident, in order to determine if the injury resulted in a change in the “course or trajectory” of the injured person’s life.

Although the Kreiner case affirmed the legal principle recognized in previous cases that the injured person need not prove a permanent injury or a permanent disability, the Kreiner decision created what many people believed was an unduly restrictive definition of the serious impairment of body function threshold.

On July 31, 2010, the Michigan Supreme Court overruled its earlier decision in Kreiner v Fischer in the case of McCormick v Carrier, 487 Mich 180 (2010). In McCormick, the Court held that the Kreiner “course and trajectory” standard was wrong, and that the 1995 statutory definition of serious impairment of body function only requires that the injured victim prove that an injury has had “an influence on some of the person’s capacity to live in his or her normal manner of living.”

The Court in McCormick went on to say that the statutory requirement that an impairment be “objectively manifested” is established if there is “an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.”

Clearly the McCormick decision has made the serious impairment of body function threshold less restrictive than it was under the Kreiner case. However, the real impact of the McCormick decision will not be known until our appellate courts have had more time to apply its principles.

In light of the Supreme Court’s decision in McCormick, it has become critically important for auto-accident victims to consult with attorneys who are very knowledgeable about the Michigan No-Fault Act in order to learn whether their injury satisfies the legal definition of the threshold elements of “serious impairment of body function” and/or “permanent serious disfigurement.”

The 1995 amendments to the Michigan No-Fault Act also provide that noneconomic damages are not recoverable if the injured person is more than 50 percent comparatively negligent. In addition, injured persons are precluded from recovering noneconomic damages under the 1995 amendments if they were driving an uninsured motor vehicle at the time of the accident which was owned by the injured person. Therefore, in assessing liability claims for the noneconomic loss, it is important to thoroughly evaluate and compare the conduct of the victim and the other driver and to also determine if the victim complied with the mandatory insurance requirements of the statute.