Michigan Court of Appeals; Docket #357641; Unpublished
Judges Borrello, Markey, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation 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In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Linda Smith’s automobile negligence action against Defendants Robert Nesbitt and Michael Koenigknecht. The Court of Appeals held that the trial court erred in concluding that Smith failed to present sufficient evidence to create a question of fact as to whether the subject car crash caused her to suffer an objectively manifested impairment under MCL 500.3135(5)(a).
Michael Koenigsknecht, while driving Robert Nesbitt’s vehicle, rear-ended Linda Smith’s vehicle while Smith’s vehicle was stopped at a red light. Smith went to the emergency department after the collision, complaining of “ ‘significant pain to [her] head and neck and entire spine.’ ” She was ultimately diagnosed with acute cervical thoracic, and lumbar spine strains—as well as degenerative changes to the spine—and referred to physical therapy. Approximately one-and-a-half years after the crash, Smith underwent another round of physical therapy, due to “returning and increased back pain that interfered with her ability to sit, stand, walk, bend over, and sleep.” Notably, Smith’s pre-crash medical records were positive for “chronic low back pain involving degenerative changes and a ‘probable nondisplaced fracture of the upper coccyx.” In her subsequent third-party action against Koenigsknecht and Nesbitt, Smith underwent an insurance medical examination performed by neurologist Leonard Sahn, MD, who opined that Smith suffered, “ ‘at most, minor muscular strains in the cervical thoracolumbar regions that would be exted to resolve promptly, requiring no more than six to eight weeks of benign, hands-on treatment.’ ” Based on Smith’s pre-existing conditions and Sahn’s report, Koenigsknecht and Nesbitt moved for summary disposition, arguing that Smith did not suffer an objectively manifested impairment as a result of the crash. The trial court agreed and granted their motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding that Smith’s records—which revealed that “she had acute neck and back strains from the accident that diminished her ability to sit, stand, and walk as compared to her ability to perform those tasks before the accident”—were sufficient to create a question of fact as to whether she established causation and satisfied the first prong of the test for serious impairment of body function.
“Here, there was evidence that plaintiff had been treated for chronic lower back pain before the accident. However, there was also evidence in the records of her medical treatment immediately following the accident that she had acute neck and back strains from the accident that diminished her ability to sit, stand, and walk as compared to her ability to perform those tasks before the accident. Our Supreme Court held that ‘[r]egardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.’ Wilkinson, 463 Mich at 395.
Nonetheless, the trial court in this case based its summary disposition ruling on the court’s subjective assessment of the relative strength and credibility of the record evidence, essentially resolving factual conflicts on material issues of whether the accident either caused new back or neck impairments or otherwise exacerbated preexisting conditions. ‘[I]t is well settled that the circuit court may not weigh the evidence or make determinations of credibility when deciding a motion for summary disposition. Moreover, a court may not make findings of fact; if the evidence before it is conflicting, summary disposition is improper.’ Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018) (quotation marks and citations omitted; alteration in original). Because the trial court based its grant of summary disposition on improperly resolving questions of fact regarding causation to determine that plaintiff had not suffered an objectively manifested impairment as a result of the accident, the trial court’s ruling was erroneous. Id. We reverse and remand for further proceedings consistent with this opinion.”
