Michigan Court of Appeals; Docket #246597; Unpublished
Judges Jansen, Meter, and Cooper; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [3135(7)]
Objective Manifestation Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
Penalty Attorney Fees and Other Court Rule Sanctions [3148]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, issued prior to the Supreme Court’s decision in Kreiner v Fischer [RB #2428], the Court of Appeals affirmed a jury verdict in favor of plaintiff on her tort claim for non-economic loss resulting from an alleged serious impairment of body function. In so holding, the court agreed that the trial court properly denied defendant’s motion for JNOV on the jury verdict. The plaintiff in this case had actually suffered injuries in two motor vehicle accidents, one in 1998 and the other in 2000. After the first accident, plaintiff suffered from chronic cervical radiculopathy which required physical therapy and pain injections. After the second accident, plaintiff’s symptoms worsened considerably. Her attending physician noted a marked aggravation of her pre-existing condition to the point where she could no longer twist or bend, was unable to lift over five pounds, was markedly restricted in the use of her right hand, and could not sit, stand, or walk for prolonged periods. She was also unable to perform her functions as a housekeeper even in a restricted capacity, and required assistance in her own home. In ruling that a jury could reasonably conclude that plaintiff’s aggravated injuries constituted a serious impairment of body function, the court stated:
“Viewed in the light most favorable to plaintiff, the evidence shows that plaintiff suffered an objectively manifested impairment of an important body function. After the 2000 accident, plaintiff experienced pain in her right arm into her right hand almost every day. Plaintiff’s injuries were extended from her left side only to both the left and right side. Plaintiff presented the testimony of Dr. Lerner that her existing injuries were exacerbated by the 2000 accident and that she suffered new injuries as well. She was required to undergo occupational therapy, continue her physical therapy, and increase her pain injections. Plaintiff’s injuries were also verified by an EMG. . . . Following the 2000 accident, plaintiff could no longer twist or bend, perform any household chores, and required assistance caring for her home. Dr. Lerner testified that plaintiff could not lift anything greater than five pounds, repetitively bend, twist or use her right hand, or stand for prolonged periods of time. Plaintiff could perform light work duties before the accident, but could no longer perform a job as a housekeeper after. Again, viewed in the light most favorable to the plaintiff, the evidence shows that her injuries affected her general ability to lead her normal life. Therefore, the trial court properly denied defendant’s motion for JNOV.”
The Court of Appeals also affirmed an award of attorney fees arising out of defendant’s rejection of a mediation award. The trial court awarded a total of $17,520 in attorney fees, calculated at the rate of $193 per hour. The court noted that this hourly rate was commensurate with the prevailing rates in the area. The court also noted that the total attorney hours of 90.85 hours were not excessive, in light of the fact that the trial took three days, plaintiff’s counsel attended depositions and took medical deposition testimony. The court also noted, “Furthermore, as Michigan’s no-fault law is constantly changing, it is reasonable to expect plaintiff’s counsel to conduct current research. Therefore, the trial court’s award of attorney fees was reasonable and proper.”
