Michigan Court of Appeals; Docket #356609; Unpublished
Judges Sawyer, Riordan, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Drucilla Marie Carter’s third-party action seeking uninsured motorist coverage against Defendant Progressive Michigan Insurance Company (“Progressive”). The Court of Appeals held that Carter failed to satisfy the first and third prongs of the test for establishing a serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010). Specifically, the Court held that Carter failed to establish that she suffered an objectively manifested impairment that was caused by the subject motor vehicle crash, and that she failed to establish that any alleged impairments caused by the crash affected her general ability to lead her normal life.
Drucilla Marie Carter was involved in a hit-and-run motor vehicle crash that caused her vehicle to crash into a median and flip over. Carter alleged that she injured her hip in the crash and that her injuries caused her to need hip surgery. In her subsequent action against Progressive seeking uninsured motorist coverage under her automobile insurance policy, Progressive moved for summary disposition, arguing that Carter’s hip injuries were entirely preexisting and that there was no change in her general ability to lead her normal life after the crash. Progressive relied on the fact that Carter began receiving treatment for her hip pain in 2001; she occasionally took time off of work before the crash because of hip pain; she had undergone multiple rounds of physical therapy and received injections for her hip pain prior to the crash; surgery was her “only option for a year before the accident occurred”; she did not complain of hip pain at the hospital on the day of the crash; and there were no x-rays or MRIs supporting her claim that her preexisting hip injuries were aggravated by the crash. Moreover, Carter testified that the only reason she did not engage in some of the leisure activities she enjoyed before the crash, after the crash, was the fact that she did not “have the desire to.” Ultimately, based on these facts, the trial court granted summary disposition in Progressive’s favor.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that all the above facts weighed against a finding that Carter’s hip injury was in any way caused or aggravated by the crash and that, as a result, Carter failed to establish that she sustained an objectively manifested impairment as a result of the crash. The Court determined that Carter’s hip problems were “chronic for years and had deteriorated sufficiently preaccident to require surgery,” and that there was “no evidence [establishing] that her condition changed from the accident.”
“In this case, plaintiff claims that she suffered an objectively manifested impairment attributable to the accident. She argues that the accident served as the triggering event that caused her to have to get hip surgery, but she offers no evidence in support of a causal connection between the surgery and the accident. In fact, the evidence suggests the opposite. For instance, the record reflects that plaintiff occasionally took time off from work before the accident because of hip pain. She had been to physical therapy multiple times and received several injections. She essentially exhausted her nonsurgical treatment options, and as Dr. William Higgenbotham stated a full year before the accident occurred, surgery was her ‘only option.’ She began treatment for the hip pain in 2013 but evidence of her left hip condition indicates that it existed as early as 2001. Surgery had been her only option for a year before the accident occurred, and plaintiff offers us no evidence that the accident so aggravated her hip pain that surgery had to be scheduled immediately. Plaintiff claims that she held off on the surgery and, had it not been for the accident, she would have held off indefinitely. Yet again, she offers us no evidence to support her claim. Further, the record indicates that plaintiff went back to work two days after the accident and worked until her surgery. This evidence indicates that whatever hip pain she experienced postaccident constituted pain no more debilitating than that which she experienced before the accident.
Further, plaintiff presented no postaccident evidence of a significant change in her hip condition. Specifically, she provided no postaccident x-rays, MRIs, or other objective medical tests supporting her claim that the accident aggravated her existing hip condition. Her only complaints upon arriving at the hospital on the day of the accident were neck, chest, and back pain—not hip pain. And her position is undermined by the surgery report, which simply describes the exact same left hip pathology that previous examinations revealed, making no reference to the accident being a cause of aggravation.”
The Court further held that Carter failed to establish that her injuries affected her general ability to lead her normal life. The Court determined that Carter had the same general limitations before and after the crash, even though she testified that her hip pain caused her to be unable to partake in various leisure activities she enjoyed before the crash. The Court disregarded her testimony in this regard because she failed to establish that her hip pain was caused by the crash.
“Plaintiff’s testimony regarding her leisure activities further supports the conclusion that the accident did not affect her ability to live her normal life. She stated that she enjoyed going to ‘plays, concerts, . . . bike riding, little bit of horseback riding, traveling’ before the accident and that she has not been bike riding or horseback riding since the accident. However, the reason for not doing these things was ‘because [she doesn’t] have the desire to.’ She later stated that she had not done those activities because ‘sitting [for] a long period of time . . . aggravates my hip,’ but, as noted above, no evidence established that such aggravation had a causal connection to the accident. Rather, the evidence indicates that her hip pain had been ongoing for many years. Likewise, plaintiff stated that she enjoyed going to plays before the accident but admitted she had not attended any plays since the accident simply because she ‘[j]ust ha[d]n’t had interest in going to any of the plays.’ She has continued to attend concerts and travel. The record reflects no noticeable difference in plaintiff’s life and her ability to do her preferred activities before and after the accident. Michigan law supports the conclusion that the alleged impairments in this case did not affect plaintiff’s normal life. In McDanield v Hemker, 268 Mich App 269, 280-282; 707 NW2d 211 (2005), where the plaintiff lost the ability to do nearly all work and recreational activities as a result of an accident, this Court noted that comparing her ‘life before and after the accident is [like] . . . comparing day to night.’ In this case, by contrast, plaintiff’s life before and after the November 2016 accident indicates that she experienced the same limitations. Accordingly, plaintiff’s claim also failed as a matter of law in this regard. Therefore, the trial court did not err by granting defendant summary disposition of plaintiff’s claim.”