Leavy, et al v Carter, et al (COA – UNP 7/20/2023; RB #4607)
Michigan Court of Appeals; Docket #363501; Unpublished
Judges Cameron, Borrello, and O’Brien; 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)**]
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In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiffs Beverly Louis Biggs-Leavy and Terence David Leavy’s automobile negligence action against Defendant Vinson Floyd Carter. Biggs-Leavy and Leavy both alleged “serious impairments of body function” as a result of a motor vehicle collision caused by Carter’s negligence, but the Court of Appeals held that Biggs-Leavy failed to present sufficient evidence to create a question of fact as to whether she suffered an “objectively manifested” impairment pursuant to MCL 500.3135(5)(a), and that Leavy failed to present sufficient evidence to create a question of fact as to whether his impairments affected his “general ability to lead his normal life” pursuant to MCL 500.3135(5)(c).
Beverly Louis Biggs-Leavy and Terence David Leavy were traveling in their vehicle when Vinson Floyd Carter turned out of a parking lot and crashed into them. Neither Biggs-Leavy nor Leavy received treatment until two days after the collision, March 25, 2019, when both went to the hospital—Biggs-Leavy complaining of pain “everywhere” and Leavy complaining of pain low-back pain and ankle pain. Neither Biggs-Leavy nor Leavy were diagnosed with any acute injuries at the hospital, but both received extensive treatment thereafter. Biggs-Leavy—who had been disabled since the 1990s as a result of lower back injuries she sustained in a prior motor vehicle collision—received receive treatment from her primary care physician and a neurologist following the 2019 collision, but neither diagnosed her with any new injuries. In fact, Biggs-Leavy’s neurologist, Dr. Nasser Sabbagh, compared an MRI of Biggs-Leavy’s lumbar spine taken after the crash with an MRI of Biggs-Leavy’s lumbar spine taken prior to the crash and found ‘no new changes from MRI done in 2015,” even writing, “[i]t does not seem that [Biggs-Leavy] has a new pathology following the motor vehicle accident early this year.”
Leavy meanwhile, continued receiving treatment for low back pain and ankle pain following his discharge from the hospital. On April 4, 2019, he underwent x-rays of his lumbar spine and left ankle—the former revealing several degenerative conditions and the latter revealing “mild soft tissue swelling.” On April 27, 2019, Leavy went to the hospital complaining of persistent pain from the accident, and additional x-rays were taken which showed a ‘[h]ealing fracture deformity’ of the left 4th toe. On August 12, 2021, Leavy began treating for ‘severe knee pain,’ which he claimed affected his ability to have sex and his ability to go for walks. Then in February of 2020, Leavy quit his job as a stock person due to his back pain becoming “too bad.” Notably, however, in the eleven months following the collision, Leavy never missed work and was never ordered off work by a doctor.
Biggs-Leavy and Leavy both filed suit against Carter on April 27, 2021, and Carter moved for summary disposition, asserting that neither Biggs-Leavy nor Leavy sustained “serious impairments of body function” for purposes of MCL 500.3135. The trial court agreed and granted summary disposition in Carter’s favor—finding that Biggs-Leavy did not present sufficient evidence to create a question of fact as to whether she suffered an “objectively manifested” impairment, and that Leavy did not present sufficient evidence to create a question of fact as to whether his impairments affected his “general ability to lead his normal life.”
The Court of Appeals affirmed the trial court’s summary disposition order, holding, first, that Biggs-Leavy failed to present sufficient evidence to create a question of fact as to whether she suffered an “objectively manifested” impairment as a result of the 2019 collision. In all her appointments following the collision, Biggs-Leavy was never found to have anything other than tenderness throughout her body. Moreover, Biggs-Leavy’s own neurologist testified that the condition of her back had not changed following the collision, and Biggs-Leavy submitted no opinions of any physicians to the contrary.
“In the trial court, however, Carter produced evidence establishing that there was no objective manifestation of Biggs-Leavy’s worsened impairment. Carter submitted the emergency room report from two days after the accident which showed Biggs-Leavy complaining of pain in her back, but the doctors only noted tenderness. When the pain persisted, Biggs-Leavy was treated by Dr. Sabbagh, who took images of Biggs-Leavy’s back. Dr. Sabbagh opined that the new MRI of Biggs-Leavy’s lumbar spine ‘showed no new changes from [an] MRI done in 2015 . . . .’ Dr. Sabbagh further opined that ‘[i]t does not seem that [Biggs-Leavy] has a new pathology following the motor vehicle accident early this year,’ and that her current problems were likely related to previous conditions. These results were later confirmed by the IME conducted by Dr. Mandel, who opined that Biggs-Leavy was no longer suffering from any lingering effects from the March 2019 motor vehicle accident. This evidence sufficiently established that Biggs-Leavy’s allegedly worsened impairment following the March 2019 evidence was not objectively manifested. In response, plaintiffs did not point to any evidence establishing that any of her preexisting conditions worsened as a result of the March 2019 accident. Rather, she only pointed to her subjective complaints of pain, which is insufficient to establish an objectively manifested impairment. See Patrick, 322 Mich App at 607. Accordingly, if we were to substantively consider this issue, we would conclude that the trial court did not err by granting Carter’s motion for summary disposition as to Biggs-Leavy’s claim.”
Turning to Leavy, the Court of Appeals held that there was no question of fact as to whether Leavy’s impairments affected his “general ability to lead his normal life.” The Court noted that Leavy was never placed on any work restrictions by his doctors following the collision and, indeed, continued performing the same duties and working the same schedule for almost a full year thereafter. Leavy’s difficult walking, the Court noted, was related to a knee condition which Leavy did not begin treating for until August 12, 2021, and which did not appear related to the collision. And as for Leavy’s sex life, the only evidence to support his claim of impairment in that department was his answer, “Yes,” when asked “[W]hat’s changed [about your sex life]? Frequency?” According to the Court, such a “conclusory statement[] devoid of detail . . . is insufficient to create a question of fact.”
“On appeal, plaintiffs argue that Leavy’s impairment affected his general ability to lead his normal life because (1) he used to walk as a hobby before the accident, but he can no longer do that, (2) he needed assistance using the bathroom following the accident, and (3) his impairment has affected the frequency with which he has sex. With respect to the first point, Leavy testified that he had problems walking because his ‘knees go out.’ Yet Leavy’s medical records immediately following the accident do not suggest that he was having any problems with his knees. Rather, Leavy reported problems with his back, neck, and ankle. The first instance in which Leavy complained of knee pain was on August 12, 2021. This was over two years after the accident at issue, and plaintiffs have not identified any evidence suggesting that Leavy’s knee pain was caused by the accident from two years prior. Relatedly, Leavy testified that he needed assistance using the bathroom because he had trouble walking. Again, however, Leavy testified that his trouble walking was related to his knee pain, which he first complained of in August 2021. There is nothing in the record connecting Leavy’s knee pain to the March 2019 accident. Finally, with respect to the changes to Leavy’s sex life, the only testimony he offered was as follows:
Q. Has this accident caused the change in your sex life with your wife? A. Yes.
Q. Is it—what’s changed? Is it—exactly what changed? Frequency? A. Yes.
Q. What is it about the accident that caused the problem for you to have sex? Is there a pain anywhere?
A. Yes, my back. My back and my knee.
When viewing this evidence in the light most favorable to plaintiffs, it is not enough to establish a genuine issue of material fact whether Leavy’s impairment affected his ability to lead his normal life. The testimony amounts to mere conclusory statements devoid of detail, which is insufficient to create a question of fact. See Quinto, 451 Mich at 362. Moreover, as explained, to determine whether Leavy’s impairment affected his ability to lead his normal life, courts ‘compare the plaintiff’s life before and after the incident.’ Patrick, 322 Mich App at 614. All that can be gleaned from Leavy’s testimony is that the ‘[f]requency’ with which he has sex following the accident changed. Without evidence that allows the factfinder to actually compare Leavy’s sex life before and after the accident, there is simply not enough in this record to create a jury-triable issue about whether Leavy’s impairment affected his general ability to live his normal life.”
