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Baskin v Namer, et al (COA – UNP 10/27/2022; RB #4499)   

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Michigan Court of Appeals; Docket #358176; Unpublished  
Judges Letica, Servitto, and Hood; 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)**]
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]
Causation Issues [§3135]

TOPICAL INDEXING: 
Sudden Emergency Doctrine


SUMMARY: 
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Lamar Baskin’s auto negligence action against Defendant Ali Mahmood-Musaid Namer, but affirmed the trial court’s denial of Namer’s motion for summary disposition on the issue of comparative negligence.  The Court of Appeals held, first, that the trial court erred in ruling, as a matter of law, that Baskin’s injuries were not caused by the subject motor vehicle accident and that Baskin had not suffered an objectively manifested impairment for purposes of MCL 500.3135.  The Court of Appeals held, second, that the trial court did not err in finding that a question of fact remained on the issue of comparative negligence.

Lamar Baskin rear-ended Ali Mahmood-Musaid Namer’s vehicle on the highway, although the precise details of the collision were disputed.  Baskin testified that he was driving on the highway and had changed into the far-left lane, immediately after which he noticed Namer’s vehicle stopped up ahead of him, without its hazard lights on.  By the time he noticed Namer’s vehicle stopped in his lane, it was too late to avoid the ensuing collision.  Namer contended that his vehicle was not actually stopped in the lane, but was rather slowing down, and that his hazard lights were on.

However the crash occurred, the impact resulted in Baskin’s head smashing through his windshield and Baskin breaking multiple bones in his face.  After the accident, Baskin was diagnosed with a traumatic brain injury and postconcussion syndrome resulting in memory loss.  He also alleged that the accident caused him to suffer a significant aggravation of pre-existing back and neck problems—the former having been diagnosed in pre-accident records from 2013, and both the former and the latter having been diagnosed in pre-accident records from 2016.  Baskin ultimately underwent two separate insurance medical examinations (IMEs) after the accident, with the first examiner concluding that Baskin ‘incurred soft tissue strain injuries to the cervical and lumbar spine as a result of the motor vehicle accident,’ but had ‘reached pre-injury status.’  As for Baskin’s memory problems, the first examiner deferred to neurologists.  The second examiner—having reviewed only Baskin’s 2013 records—concluded that ‘[t]he postconcussive syndrome/mild [traumatic brain injury] and cervical symptoms were caused by [the] accident,’ and ‘[t]he lower back pain represents an aggravation of a preexisting condition.’

Baskin eventually filed an auto negligence action against Namer, and Namer moved for summary disposition, arguing (1) that Baskin failed to demonstrate that he had suffered a serious impairment of body function for purposes of MCL 500.3135, and (2) that there was no question of fact that Baskin was more than 50% at-fault for the accident, given the presumption of negligence in rear-end collisions created by MCL 257.402(a).  The trial court granted Namer’s motion as to the issue of serious impairment of body function, finding—without acknowledging any of the evidence pertaining to Baskin’s traumatic brain injury—that Baskin failed to demonstrate that he had suffered an objectively manifested impairment which was caused by the accident.  The trial court denied Namer’s motion as to the issue of comparative negligence, however, finding that question of fact existed as to who was more at-fault for the accident.

The Court of Appeals reversed the trial court’s summary disposition order as to the issue of serious impairment of body function, finding that there was no question of fact that the accident caused Baskin to suffer an objectively manifested traumatic brain injury and postconcussive syndrome, and that there was at least a question of fact—given the second IME examiner’s conclusions—as to whether the accident caused Baskin to suffer aggravations of his pre-existing neck and back injuries.  Although the second examiner only reviewed Baskin’s 2013 records—which featured a diagnosis of chronic back pain, but not chronic neck pain—and not Baskin’s 2016 records—which featured a diagnosis of chronic neck pain, too—an additional question of fact existed as to whether the 2016 records would have changed the examiner’s conclusions.

“Defendant argues plaintiff failed to show the accident caused his injuries, because they were preexisting. Notably, however, review of plaintiff’s earlier medical records shows no diagnoses for postconcussive syndrome, or traumatic brain injury. Defendant fails to address these injuries on appeal, and the trial court failed to address them when it granted summary disposition to defendant, choosing to focus only on plaintiff’s fractured jaw. 

Defendant further contends the IMEs support his contention of plaintiff having only preexisting injuries. The first IME does assert plaintiff’s injuries from the accident were limited to ‘soft tissue strain injuries to the cervical and lumbar spine.’ However, the second IME disagreed. The second IME concluded the accident resulted in postconcussive syndrome, traumatic brain injury, and aggravation of plaintiff’s preexisting lower back pain. While defendant contends the second IME is unreliable because the doctor performing the IME did not have access to plaintiff’s medical records from June 2016, the second IME doctor had access to, and discussed, plaintiff’s May 2013 medical records, which also noted his preexisting conditions. Whether the June 2016 medical records would change the IME’s evaluation is a question of fact on which the parties disagree. Because it is plausible the June 2016 medical records may change the evaluation, but is also plausible they may not, this creates a genuine issue of material fact for the jury. 

In sum, while there may be an issue of fact whether the accident exacerbated plaintiff’s back problems, there is no genuine issue of material fact, considering the record as it stood when the trial court granted summary disposition to defendant, the accident caused plaintiff’s objectively manifested postconcussive syndrome and traumatic brain injury. 

We also note, the trial court’s determination plaintiff failed to establish an objectively manifested impairment seemed to rest entirely on its determination plaintiff failed to establish a causal link between the accident and his injuries. Causation is an issue distinct from the threshold injury analysis, and it appears the trial court conflated the two requirements when making its decision. However, it is worth considering the issue of causation, because, if the trial court was correct that plaintiff failed to establish causation, the trial court’s grant of summary disposition to defendant would be harmless error . . . 

Again, the second IME unequivocally stated plaintiff’s injuries were either caused by, or exacerbated by, the accident. While the first IME disagrees, this disagreement creates a genuine issue of material fact regarding causation that is reserved for the jury. The trial court impermissibly weighed the evidence by failing to consider the second IME to the same extent as the first IME. Summary disposition on the basis of causation was inappropriate, and the trial court’s error was thus not harmless.” 

Next, the Court of Appeals affirmed the trial court’s denial of Namer’s motion for summary disposition on the issue of comparative negligence.  The Court held that a question of fact existed as to whether encountering Namer’s vehicle—stopped squarely in the roadway without its hazard lights on—constituted a sudden emergency for Baskin, who had just merged into the far-left lane.  If so, MCL 257.402(a)’s presumption of negligence would not apply.  Alternatively, the Court held that a question of fact existed as to whether MCL 257.402(a) applied at all, given the fact that the statute creates a presumption “when a vehicle rear-ends ‘another vehicle proceeding in the same direction, or lawfully standing upon any highway within this state.’ ”  In this case, there was a question of fact as to whether Namer was lawfully or unlawfully standing upon the highway immediately prior to being rear-ended.

“The event of a motorist experiencing vehicle troubles and pulling to the side of the road, or even a motorist experiencing failure and stopping in a lane, is not necessarily an unusual occurrence on a freeway. However, it is possible, considering plaintiff’s recollection of the accident, that defendant’s vehicle was not in clear view for a significant period of time. Plaintiff testified at his deposition that he only had seconds between merging and seeing defendant’s vehicle, and defendant’s vehicle did not have its hazard lights on. While defendant contended he was in the vehicle and still slowing to a stop, with his hazard lights on, defendant did not provide any testimony, under oath, or evidence to support this allegation. And the trial court correctly noted this dispute simply created a genuine issue of material fact. Because, given the testimony in the record, it is possible a sudden emergency occurred, MCL 257.402(a) does not apply to create a presumption of negligence for plaintiff. White, 482 Mich at 139. 

Moreover, MCL 257.402(a) may not apply, regardless of the existence of a sudden emergency, because of defendant’s actions. MCL 257.402(a) provides for a presumption of negligence when a vehicle rear-ends ‘another vehicle proceeding in the same direction, or lawfully standing upon any highway within this state[.]’ MCL 257.402(a) (emphasis added). Plaintiff, in his response to defendant’s motion for summary disposition, alleged that defendant, by stopping his vehicle on the freeway, violated various traffic laws. If defendant was not ‘lawfully standing’ on the freeway, the presumption of negligence under MCL 257.402(a) is inapplicable. Whether defendant was ‘lawfully standing’ on the freeway depends on the location of defendant’s vehicle and other factual circumstances. Thus, whether defendant was lawfully standing on the freeway is, as is the case of whether plaintiff’s negligence contributed to the accident, and by what percentage, a disputed genuine issue of material fact.” 


Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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