Michigan Court of Appeals; Docket # 329231; Unpublished
Judges Servitto, Markey and Gleicher; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Majority Opinion
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(c)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s third-party tort action for noneconomic damages and excess economic loss, the Court of Appeals held:
1) summary disposition was properly granted for defendant because plaintiff did not show that he suffered a serious impairment of body function pursuant to MCL 500.3135(5) and the standard set forth in McCormick v Carrier, 487 Mich 180 (2010); and
2) plaintiff’s motion for rehearing on a claim for excess economic damages under MCL 500.3135(3)(c) was properly denied because insufficient evidence was presented to support the claim.
On October 20, 2011, a vehicle driven by defendant Jessica Marie Bouman and owned by defendant Bonnie Lou Bouman struck the rear of plaintiff’s vehicle. Four days after the accident, plaintiff sought treatment at an urgent care for headache, anxiety, neck stiffness and back pain. X-rays indicated that plaintiff’s “percervical soft tissues and intervertebral disc spaces appear[ed] normal.” Plaintiff then sought treatment from Dr. Barnes on December 21, 2011, for left hand and shoulder numbness. An MRI showed “[l]imited but visible narrowing of the right C5 and the right C6 foramina.” Plaintiff sought treatment from Dr. Barnes for neck pain on February 1, 2012, and again on March 27, 2012. An EMG in August 2012 came back normal. In May 2013, plaintiff again sought treatment from Dr. Barnes for neck pain. An MRI again showed that plaintiff’s spine was normal. Plaintiff then saw Dr. Angelo Porcari, who reported “no significant degenerative disc disease, central spinal stenosis, or foraminal narrowing” at C2-3, C3-4, C4-5, C5-6, C6-7, or C7-T1. Plaintiff then saw Dr. Barnes for a general physical exam in September 2013, where plaintiff said he was “well in general” and “very active.” In September 2014, plaintiff had an annual exam and reported to Dr. Barnes that he was having pain in his left shoulder and spasms. Plaintiff had full range of motion and reported no problems with headaches, weakness or numbness. Plaintiff returned to Dr. Barnes in October 2014 complaining of neck pain and headaches. A CT scan came back normal, except for “[m]ild uncovertebral arthropathy at C4-C5 and C6-C7.”
At the time of the 2011 accident, plaintiff worked part-time as a paralegal. In 2012, plaintiff moved to California, worked various jobs and did not seek any medical treatment while there. He returned to Michigan in April 2013 and worked as a customer service representative at a Meijer call center, which involved computer and telephone work. Plaintiff indicated that he would tolerate left-sided numbness by taking frequent stretching breaks and acknowledged his symptoms did not prevent him from driving. Plaintiff’s also acknowledged his symptoms did not cause him to miss any work or prevent him from engaging in other pre-accident activities. In February 2014, plaintiff began working as a hotel bellman, which required lifting up to 50 pounds. Plaintiff also began working part-time as a waiter/assistant caterer. In January 2015, plaintiff left these jobs to take a full-time position at Farmers Insurance, which involved working on a computer and talking on the phone.
Plaintiff brought this lawsuit in October 2014. After discovery, defendants moved for summary disposition. The trial court granted the motion, finding that plaintiff failed to show, as required by §3135(5), that his general ability to lead his normal life had been affected. The trial court later denied plaintiff’s two motions for rehearing.
The Court of Appeals affirmed, citing §3135(5) and the serious impairment of body function requirements in McCormick. According to the Court, plaintiff did not meet the objective manifestation requirement of §3135(5), which generally requires medical testimony showing a physical basis for subjective complaints of pain and suffering that “actually impair an important body function.”
In its analysis, the Court of Appeals first rejected plaintiff’s argument that the trial court “ignored” Dr. Barnes’ affidavit. The Court noted the trial court “merely observed” that it was unclear what important body function had been impaired and that the evidence “indicated that plaintiff had a full range of motion and that he tolerated ‘some situational and positional pain, discomfort, and tingling.’”
According to the Court of Appeals, the trial court correctly found plaintiff did not show that his claimed impairment affected his general ability to lead his normal life. In this regard, the Court stated:
“The record evidence shows that plaintiff was able to drive for great distances, and work at jobs requiring extensive computer use or requiring physical labor. Plaintiff did not testify that his symptoms prevented from engaging in any activity he performed before the accident. While plaintiff’s habits with respect to certain activities changed after the accident, he did not attribute these changes to an accident-caused injury or the pain and muscle spasms he claimed occurred when holding certain positions. Thus, the trial court properly ruled as a matter of law that ‘plaintiff’s complaints of discomfort and distraction while driving or working on a computer do not create a genuine issue of material fact regarding serious impairment of body function.’”
Based on the foregoing, the Court of Appeals held that defendants’ motion for summary disposition as to plaintiff’s claim for noneconomic damages was properly granted. The Court observed the undisputed facts showed that plaintiff failed to raise a question of material fact that he had suffered an objectively manifested impairment of an important body function that affected his general ability to lead his normal life, as required by McCormick and §3135(5).
The Court of Appeals also concluded there was no merit to plaintiff’s argument that defendants’ motion for summary disposition on his claim for excess economic loss under §3135(3)(c) should not have been granted. The Court held:
“No claim is made for allowable expenses, and survivor’s loss clearly does not apply. To the extent plaintiff’s claim relates to work loss, we note he not only presented no evidence of any lost income, but also he specifically disclaimed making such a claim. Furthermore, to the extent plaintiff’s claim relates to an alleged loss of earning capacity, it is unavailable.”
