Michigan Court of Appeals; Docket # 315754; Unpublished
Judges O’Connell, Markey and Murray; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s third-party tort claim for damages, the Court of Appeals held that summary disposition for defendant was proper because plaintiff failed to establish a genuine issue regarding whether the injuries he sustained in an auto accident affected his general ability to lead his normal life under MCL 500.3135.
Plaintiff was injured in an October 2011 auto accident. He filed a third-party tort claim against defendant for damages. Defendant moved for summary disposition, which the trial court granted. On appeal, plaintiff argued the trial court erred when it found that no genuine issue of material fact existed regarding whether he suffered a serious impairment of an important body function that affected his general ability to lead a normal life and, as a result, the trial court should not have granted defendant’s summary disposition motion.
The Court of Appeals affirmed summary disposition for defendant. In so holding, the Court noted §3135(1) provides that “a person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” According to the Court, “serious impairment of body function” is defined as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”
The Court of Appeals continued by applying the three-part test set forth in McCormick v Carrier, 487 Mich 180 (2010), for determining whether a person suffered a serious impairment of body function. That test requires a plaintiff show: 1) an objectively manifested impairment 2) of an important body function that 3) affects the person’s general ability to lead his or her normal life.
Applying McCormick to this case, the Court noted that defendant did not contest that plaintiff created genuine issues of material fact on prongs one and two of McCormick, and that the trial court focused only on prong three when it made its decision. Therefore, the Court said, the issue was whether plaintiff’s injuries arising from the October 2011 accident affected his general ability to lead his normal life. The Court explained an impairment affects a person’s general ability to lead a normal life if it has “an influence on some of the person’s capacity to live in his or her normal manner of living,” which requires a comparison of the person’s life before and after the incident in question. According to the Court:
“This is a subjective, case specific inquiry, which does not require a specific temporal showing or a ‘quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’ … Rather, there must be evidence showing ‘some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected.’ … This showing merely requires that the ‘person’s general ability to lead his or her life has been affected, not destroyed.’
The Court explained that, in this case, the evidence showed that: 1) plaintiff had not worked since 1999 because he began having back problems and his knees “started giving out”; 2) plaintiff regularly visited DRH Orthopedic Clinic complaining of knee pain in the year and a half prior to the accident; 3) plaintiff ultimately underwent knee replacement surgery on his right knee on February 8, 2010, and on his left knee on October 11, 2010; 4) despite plaintiff’s surgery, he still suffered from excruciating pain; 5) at his May 24, 2011, visit with his orthopedic physician, plaintiff scored his pain level at “15/10” and explained that “the pain [was] so severe that he [was] unable to sleep” and, approximately a month later at another visit with his physician, plaintiff claimed that he was unable to ambulate without a walker and could not “do things he wanted to [] do”; and 7) about one week before the October 2011 accident, plaintiff complained of knee pain and his physician scheduled knee revision surgeries, with the first occurring in October 2011.
Further, the Court of Appeals pointed out that, following the accident, plaintiff’s treating physician compared MRI results of plaintiff’s knees, neck and back to previous x-rays conducted a few months prior to the accident, and no significant irregularities were revealed. The Court also noted that an independent medical examiner evaluated plaintiff on January 11, 2012, and “[did] not find any gross physical findings of cervical or lumbar radiculopathy on any objective testing” and indicated that plaintiff’s neck and back pain had been ongoing for many decades, and was progressing in nature.
Based on the foregoing, the Court of Appeals concluded that plaintiff failed to present sufficient evidence creating a genuine issue of material fact that his injuries from the October 2011 accident affected his general ability to lead his normal life. The Court held:
“Prior to the accident, plaintiff was unemployed, using a walker ‘on a consistent basis,’ had trouble sleeping, and had trouble walking, getting dressed, and doing household chores because he was in ‘[p]ain all the time.’ Plaintiff testified that before the accident, his normal day usually consisted of watching television. After the accident, plaintiff is still unemployed, uses a walker, has trouble sleeping, struggles with household chores, and getting dressed. Plaintiff testified that he struggles with sitting down for long periods of time, but his normal day still consists of watching television. … Because plaintiff’s post-October 11, 2011 accident life remains unchanged as he is still able to watch television and continues to live in pain, he failed to present any evidence that demonstrates that he was further limited by his injuries sustained in the October 2011 accident.”
Therefore, the Court of Appeals held that plaintiff failed to satisfy the serious impairment of body function threshold required by McCormick because the record evidence contradicted plaintiff’s claim. Thus, the Court ruled the trial court properly held that summary disposition for defendant was appropriate.
