Michigan Court of Appeals; Docket #329320; Unpublished
Judges Shapiro, Hoekstra and Servitto; Unanimous, per curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s noneconomic tort damages claim, the Court of Appeals held that summary disposition was improperly granted for defendant because questions of fact remained about whether plaintiff suffered a serious impairment of body function within the meaning of MCL 500.3135 and pursuant to McCormick v Carrier, 487 Mich 180 (2010).
Plaintiff was involved in two separate automobile accidents. The first happened January 31, 2013, when she was struck from behind by a vehicle driven by defendant Berens. On August 20, 2013, plaintiff was in a second accident with defendant Langeland, who struck the side of her vehicle. After each accident, plaintiff underwent treatment for injury to her spine. Plaintiff ultimately had surgery in 2014 and could not perform some of her normal activities, including walking, gardening and activities that required long periods of sitting. Plaintiff then filed this action against Berens and Langeland for noneconomic tort damages under §3135(1). Defendants moved for summary disposition, claiming there was no question of fact regarding whether plaintiff suffered a serious impairment of body function that affected her ability to lead her normal life. Specifically, Berens argued that, before the second accident, plaintiff had fully recovered from her injuries related to the first accident and that, during the time between the first and second accident, plaintiff had not suffered any “real impact” on her general ability to lead her normal life. Meanwhile, Langeland maintained that any injury was attributed to plaintiff’s first accident and the second accident did not affect her general ability to lead her normal life. The trial court granted summary disposition for both Berens and Langeland. On appeal, plaintiff claimed she demonstrated an objectively manifested impairment to her lumbar spine, which was aggravated by the accident with Berens and further aggravated by the accident with Langeland, and that this impairment affected her ability to lead her normal life.
The Court of Appeals found that plaintiff met the threshold requirement of §3135(1) to maintain an action for noneconomic tort damages. In so holding, the Court noted that under McCormick, a person’s life “need only be ‘affected, not destroyed.’”
Applying this standard to the present case, the Court noted plaintiff testified that, by summer 2013, she had “recovered” with medical treatment and was “feeling wonderful,” and that the trial court granted summary disposition to Berens largely based on this testimony. The Court said:
“[T]his was erroneous because there is no temporal requirement for how long an impairment must last to satisfy MCL 500.3135(1). … Plaintiff’s claim of ‘recovery’ may ultimately factor into a jury’s determination of the extent of Berens’s liability; but, on the facts of this case, it does not negate a finding that plaintiff suffered a compensable threshold injury and thus her ‘recovery’ does not entitle Berens to summary disposition under MCR 2.116(C)(10). Consequently, the trial court erred by granting Berens’s motion for summary disposition.”
Likewise, the Court of Appeals said the trial court erred in granting summary disposition to Langeland based on a finding that plaintiff’s condition preexisted her second accident, and that her ability to lead her normal life did not change after the second accident. The Court stated:
“Taken in a light most favorable to plaintiff, the evidence — including plaintiff’s deposition and medical records — shows that plaintiff had ‘recovered,’ or at least shown significant improvement, in the time between her first and second accident. … According to plaintiff, despite surgery, she has not fully recovered from her second accident and she remains unable to perform many of her normal activities.”
Based on the foregoing, the Court of Appeals reversed and remanded the case for further proceedings. The Court held:
“Given plaintiff’s apparent progress toward recovery from any symptoms caused by the first accident and her worsening symptoms after the second accident, the August accident could reasonably be seen as an aggravation of her preexisting condition and a prolonging of her recovery. And, as noted, a plaintiff can establish an injury and, receive compensation, for the aggravation or exacerbation of a preexisting condition. … Further, given evidence that plaintiff had begun to improve and return to some of her normal activities before the second accident, the second accident can reasonably be seen as affecting her general ability to lead her normal life. … Overall, material questions of fact remain, and the trial court erred by granting the Langeland defendants’ motion for summary disposition.”
