Michigan Court of Appeals; Docket #269082; Unpublished
Judges Borrello, Jansen, and Cooper; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010) [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed the trial court Order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses.
The plaintiff in this case sustained a closed head injury with cognitive disorder in her motor vehicle accident. In granting summary disposition for defendant, the trial court stated there was no evidence that the closed head injury and the cognitive disorder rose to the level of a serious neurological injury. In so finding, the court noted that plaintiff presented an affidavit of her physician who stated he had diagnosed plaintiff as having a closed head injury “which is a serious neurological injury.” According to the trial court, this statement did not create a question of fact for the jury, because it “automatically equated closed head injury with a serious neurological injury.” The Court of Appeals reversed. In finding for plaintiff, the court explained that MCL 500.3135(2)(a)(ii) only requires that a licensed allopathic or osteopathic physician who regularly diagnoses or treats a closed head injury testify under oath that there may be a serious neurological injury. In this case, the physician’s statement suggested that plaintiff might have a serious neurological injury and was sufficient to create a question of fact. In so holding, the court stated:
“Plaintiff’s expert stated that plaintiff had suffered ‘a closed head injury . . . which is a serious neurological injury.’ We find that plaintiff’s expert’s statement suggests that plaintiff might have a serious neurological injury. We see no reason to adopt the narrow construction of the expert’s phrasing that the trial court adopted. The phrasing is sufficiently ambiguous to admit of two possible readings: that a closed head injury is by default a serious neurological injury, or that the closed head injury that plaintiff suffered presents a serious neurological injury. Because MCL 500.3135(2)(a)(ii) hinges on the phrase ‘may be,’ rather than ‘must be’ or ‘is,’ we find the expert’s statement creates a question of fact.”
