Michigan Court of Appeals; Docket #357587; Unpublished
Judges Swartzle, Cameron, and Patel; 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)**]
Causation Issues [§3135]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Sherry Kidd’s auto negligence action against Defendant Wissam Ali Salame. The Court of Appeals held, first, that Kidd failed to present sufficient evidence to create a question of fact as to whether her back injuries were caused by the subject car crash, and, second, that Kidd failed to present sufficient evidence to create a question of fact as to the third prong of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010)—whether her injuries affected her general ability to lead her normal life.
Sherry Kidd was involved in a “low-speed-motor-vehicle accident” while traveling as a passenger in a vehicle driven by Wesam Ali Salame. Kidd denied medical treatment at the scene of the accident but later went to the hospital complaining of neck pain. A CT scan of her cervical spine revealed ‘small disc bulge[s]’ at two levels, but the radiologist wrote that there were no acute or traumatic findings in the report. Approximately six months after the accident, Kidd underwent an MRI of her lumbar and cervical spine, with the former revealing “annular tears and herniated discs with nerve root compromise at two levels” and the latter revealing “annular tears, disc herniations, and a C4-C5 disc bulge.” Notably, however, Kidd’s pre-accident records were positive for severe back pain in 2016 and chronic back pain in 2017 and 2018 before the crash. Approximately seven months after the crash, Kidd underwent an insurance medical examination (IME) with Dr. Matthew Sardelli, who opined that Kidd’s back pain was chronic and entirely unrelated to the motor vehicle accident and that, although Kidd suffered a neck strain and whiplash as a result of the accident, ‘she [was] in no need of any further therapies as it relates to the motor vehicle accident.’ Based on her pre-accident records and Dr. Sardelli’s opinions, Salame moved for summary disposition in Kidd’s third-party auto negligence action against him. Specifically, Salame argued that Kidd’s back injuries were not caused by the accident and that her neck injuries did not affect her general ability to lead her normal life. Ultimately, the trial court found that Kidd had not suffered a serious impairment of body function and granted Salame’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, holding, as to Kidd’s back injuries, that none of her records presented a causal link between the findings on her lumbar MRI and the accident. As to Kidd’s neck injuries, the Court of Appeals held that those injuries did not affect her general ability to lead her normal life. It was primarily Kidd’s back injuries which she testified affected her general ability to lead her normal life; moreover, many of the changes to her normal life which she alleged were the result of her injuries were actually caused by factors unrelated to her injuries, such as not playing with her grandchildren because they had grown older, and not going to jazz concerts because they were out-of-season.
“As a general rule, a no-fault claim asserting a serious impairment of body function must be supported by medical evidence showing that the impairment was caused by the ownership, maintenance, or use of a motor vehicle. MCL 500.3135(1); Patrick, 322 Mich App at 607. Kidd’s medical records show that she has a history of back pain before the accident and none of the records properly before us link her back pain after the accident or the findings on the lumbar MRI to the accident itself. Rather, Dr. Sardelli specifically concluded that Kidd’s back pain was not linked to the accident. While defendant’s expert linked plaintiff’s neck injury to the accident and conceded that six to eight weeks of chiropractic and physical therapy treatment was reasonable, the records and testimony properly before us are insufficient to establish that plaintiff’s neck injury affected her general ability to lead her normal life. Plaintiff testified that it was primarily her back pain, not her neck pain, that limited her daily life. Additionally, some of the changes in Kidd’s daily life were not caused by the accident. Rather, they were caused by her grandchildren growing older and jazz concerts not being in season. Accordingly, the trial court did not err by concluding that Kidd did not suffer a serious impairment of body function.”
