Michigan Court of Appeals; Docket #353594; Unpublished
Judges Gleicher, Borrello, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Lisa Lee Arrell’s third-party action against Defendant Lloyd G. Edwards, Jr. The Court of Appeals held that a question of fact existed as to whether the injuries Arrell sustained as a result of being rear-ended by Edwards, Jr.’s vehicle affected her general ability to lead her normal life for purposes of the serious impairment of body function test set forth in McCormick v Carrier, 487 Mich 180 (2010).
Arrell injured her back as a result of being rear-ended in traffic by Edwards, Jr.’s vehicle, and eventually underwent surgery. In her subsequent third-party action against Edwards, Jr., Edwards, Jr. moved for summary disposition, arguing that Arrell could not satisfy the third prong of the test for serious impairment of body function set forth in McCormick: whether her injuries affected her general ability to lead her normal life. Specifically, Edwards, Jr. argued that Arrell was disabled before the crash, so any ongoing disability did not constitute a change in her general ability to lead her normal life. Furthermore, Edwards, Jr. noted that, since the crash, Arrell “married, enrolled in college courses, and was riding motorcycles, so her life actually has been better since the accident.” The trial court ultimately agreed with Edwards, Jr. that Arrell had not satisfied the third prong of the McCormick test and granted Edwards, Jr.’s motion for summary disposition.
The Court of Appeals reversed the trial court’s summary disposition order, holding that a question of fact existed as to whether Arrell’s general ability to lead her normal life had been affected by her back injury. Specifically, the Court noted that Arrell’s testimony regarding the timeline for her enrollment in community college contradicted that put forth by Edwards, Jr.: she argued that she enrolled in college before the crash but had to drop out after the crash because she was in too much pain to sit through her classes. Furthermore, she and her husband testified that their ability to have sexual relations was greatly impacted by her injuries, that she was no longer able to participate in myriad recreational activities that she enjoyed before the crash, that she could no longer independently perform her regular hygiene routine or prepare meals, and that she could no longer drive.
“Plaintiff testified that she enrolled in Montcalm Community College before the accident, but after the accident she had to drop out of school because she was in too much pain to sit in class. Plaintiff also testified—and her husband confirmed—that her husband had to help her prepare food and do other household chores because she was in a lot of pain after the accident. And, plaintiff testified, before the accident she did not need help caring for herself around the house, with hygiene, or preparing meals. Plaintiff also testified that she could no longer drive a vehicle after the accident.
Also presented to the trial court was the testimony of plaintiff’s husband that plaintiff experienced many changes after the accident, including that since the accident he and plaintiff have substantially reduced sexual relations because of plaintiff’s pain. Additionally, plaintiff’s husband testified that before the accident plaintiff and her husband would do recreational activities together, such as going to ‘Craig’s Cruisers,’ bowling, and going on motorcycle rides together; since the accident, they have only been able to go on a few motorcycle rides because plaintiff has trouble getting on and off the motorcycle. Plaintiff’s husband also testified that since the accident plaintiff walked slower and with a limp, no longer goes on walks with him, and no longer cuts the lawn or removes snow from the driveway, while she frequently did so before the accident.
The foregoing testimony places in question whether plaintiff’s postaccident impairments sufficiently altered plaintiff’s ability to live her normal life such that she suffered a serious impairment of a body function. Testimony from plaintiff and her husband describe numerous activities that plaintiff engaged in before the accident that she can no longer perform after the accident, or at least not as frequently as she once had. ‘Viewing these facts in the light most favorable to plaintiff, a jury could conclude that [the plaintiff’s] general ability to lead [her] normal life was affected by the impairment.’ Piccione, 327 Mich App at 22.”
