Michigan Supreme Court; Docket No. 136738; Published
Opinion by Justice Cavanaugh 4-3 (with Justices Markman, Corrigan, and Young dissenting)
Official Michigan Reporter Citation: 487 Mich 180; Link to Opinion 
Link to COA opinion
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [3135(7)]
Objective Manifestation Element of Serious Impairment (McMormick Era: 2010 - Present) [3135(7)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [3135(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 4-3 decision written by Justice Cavanagh, joined by Justices Kelly, Hathaway, and Weaver, the Supreme Court explicitly overruled the decision in Kreiner v Fischer, [RB #2428] interpreting the “serious impairment of body function threshold.” In so doing, the Court proclaimed, “We hold that Kreiner v Fischer was wrongly decided because it departed from the plain language of MCL 500.3135, and is therefore overruled. We further hold that, in this case, as a matter of law, plaintiff suffered a serious impairment of body function.”
The Court began its analysis by stating that the 1995 legislation which adopted the current definition of serious impairment of body function was not an unconditional embrace of Cassidy v McGovern—a conclusion that the Court characterized as “an over simplification.” The Court went on to point out that “some of the language adopted by the Legislature was used consistently in both DiFranco and Cassidy, and the Legislature clearly rejected some elements of Cassidy. . . . Further, some courts have interpreted Kreiner to create a threshold that is higher than that in Cassidy or DiFranco, primarily by reading the Kreiner majority’s interpretation of the statute to effectively create a permanency requirement. As discussed, this is contrary to the legislative intent expressed by the plain language of the statute.”
The Court confirmed that the statutory definition of serious impairment of body function sets forth three prongs that must be established in order to prove this threshold element. Those three prongs are: (1) an objectively manifested impairment (2) of an important body function (3) that affects the person’s general ability to lead his or her normal life. The Court then analyzed each of these definitional prongs separately.
Objective Manifestation—With regard to the objective manifestation prong, the Court drew an important distinction between “injury” and “impairment.” In this regard, the Court stated that the statute does not contain the word “injury,” but rather uses the word “impairment.” Accordingly, the Court stated, “Notably, MCL 500.3135(7) does not contain the word ‘injury,’ and, under the plain language of the statute, the proper inquiry is whether the impairment is objectively manifested, not the injury or its symptoms.”
The Court then addressed the meaning of this element of the statutory definition and stated, “. . . The common meaning of ‘objectively manifested’ in MCL 500.3135(7) is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an ‘objectively manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” The Court then went on to merge this new definition of objective manifestation into the Cassidy and DiFranco definitions of that same phrase. In doing so, the Court concluded that these earlier decisions had analyzed the issue of objective manifestation in a manner that is consistent with the 1995 statute. In this regard, the Court stated, “Further, the pre-existing judicial interpretation of ‘objectively manifested’ is consistent with the plain language of the later-adopted statute. In Cassidy, this Court explained that the serious impairment threshold was not met by pain and suffering alone, but also required ‘injuries that affect the functioning of the body,’ i.e., ‘objectively manifested injuries.’ Cassidy, 415 Mich at 505. In other words, Cassidy defined ‘objectively manifested’ to mean affecting the functioning of the body. DiFranco affirmed this and further explained that the ‘objectively manifested’ requirement signifies that plaintiffs must ‘introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering’ and that showing an impairment generally requires medical testimony. DiFranco, 427 Mich at 74.” The Court then went on to overrule the Kreiner definition of objective manifestation which had adopted the principle that subjective complaints that are not “medically documented” are insufficient to establish that an impairment is objectively manifested. In rejecting this standard, the McCormick Court stated, “. . . to the extent that Kreiner could be read to always require medical documentation, it goes beyond the legislative intent expressed in the plain statutory text, and was wrongly decided.” The Court then went further and overruled cases like Netter v Bowman, 272 Mich App 289 (2006) which had imposed a requirement of an objectively manifested injury rather than impairment, and further required that the injury must be capable of “objective verification.”
Therefore, it would appear from the majority Opinion in McCormick, that the new objective manifestation test requires evidence of symptoms or conditions “that someone other than the injured person would observe or perceive as impairing a body function”—an impairment that is “observable or perceivable from actual symptoms or conditions.” This will generally require medical testimony. In addition, it seems to be continually relevant regarding the objective manifestation issue whether there is a physical basis for subjective complaints of pain and suffering and whether there is a medically identifiable injury, as required under DiFranco.
Important Body Function—With regard to the important body function prong, the Court concluded that this is an inherently subjective inquiry that should be decided on a case-by-case basis. The Court referred to dictionary definitions of the word “important,” and noted that important is generally thought of as being “marked by or having great value, significance, or consequence.” The Court then went on to say, “Whether a body function has great ‘value,’ ‘significance,’ or ‘consequence’ will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending upon the relationship of that function to the person’s life.” The Court further indicated that this definitional analysis of the important body function prong is consistent with the Cassidy interpretation of that phrase which had embraced the principle “that an important body function is not any body function but also does not refer to the entire body function.”
General Ability to Lead Plaintiff’s Normal Life—With respect to the third prong of the serious impairment threshold, the McCormick decision expressed its greatest disagreement with, and departure from, the Kreiner decision. In articulating the proper definition of the general ability element, the Court stated, “Therefore, the plain text of the statute and these definitions demonstrate that the common understanding of to ‘affect the person’s ability to lead his or her normal life’ is to have an influence on some of the person’s capacity to live in his or her normal manner of living. By modifying ‘normal life’ with ‘his or her,’ the Legislature indicated that this requires a subjective, person-, and fact-specific inquiry that must be decided on a case-by-case basis.”
The Court then went on to express great criticism of the Kreiner decision and its utilization of concepts of altered “course or trajectory” of life or “entire life.” In this regard, the McCormick Court stated, “Significantly, the Kreiner majority’s interpretation of the statute interjects two terms that are not included in the statute or the dictionary definitions of the relevant statutory language: ‘trajectory’ and ‘entire.’ Both terms create ambiguity where the original statutory text had none. . . .”
The Court then went on to make it clear that the statutory language utilizes a “capacity” standard rather than a “performance standard.” Moreover, the Court stated that this capacity standard does not adopt any quantitative minimums regarding the extent of the impaired capacity, nor does it express any temporal requirements as to the length of time the impaired capacity must last. In this regard, the Court stated:
“First, the statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed. . . .
Second, and relatedly, ‘general’ modifies ‘ability,’ not ‘affect’ or ‘normal life.’ Thus, the plain language of the statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected. Thus, while the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.
Third, and finally, the statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on ‘the person’s general ability to live his or her normal life.’ To begin with, there is no such requirement in the plain language of the statute. Further, MCL 500.3135(1) provides that the threshold for liability is met ‘if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.’ While the Legislature required that a ‘serious disfigurement’ be ‘permanent,’ it did not impose the same restriction on a ‘serious impairment of body function.’ Finally, to the extent that this prong’s language reflects a legislative intent to adopt this portion of Cassidy in some measure, Cassidy expressly rejected a requirement of permanency to meet the serious impairment threshold. . . .
[T]he Kreiner majority stated that ‘[t]he starting point in analyzing whether an impairment affects a person’s “general,” i.e., overall, ability to lead his normal life should be identifying how his life has been affected, by how much, and for how long.’ Kreiner, 471 Mich at 131. Although other portions of the Kreiner majority opinion more carefully stated that the test was the effect on a person’s general ability, this particular reasoning could be pulled out of context to suggest that courts should focus on how much the impairment affects a person’s life, instead of how much it affects the person’s ability to live his or her life.”
However, later in the Opinion, the Court signaled an important limitation with regard to its earlier statement that the statute does not contain any express temporal requirements regarding the general ability test. In this regard, the majority stated that it was not taking the position that temporal factors are never relevant. On the contrary, the majority stated, “Contrary to the dissent’s cries, there is simply no basis in our analysis for concluding that we hold that temporal considerations are irrelevant or that a momentary impairment is sufficient. The Opinion merely notes that there is no specific express temporal requirement in the text of the statute and rejects Kreiner’s strained attempts to insert what was essentially a permanency requirement into the statute.”
In applying this new general ability test, the Court confirmed that a comparison of plaintiff’s pre- and post-accident life is appropriate. In this regard, the Court stated, “Determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident. There are several important points to note, however, with regard to this comparison. First, the statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed. Thus, courts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected.”
In determining whether the plaintiff has satisfied the general ability test, the Court specifically disapproved of Kreiner’s “non-exhaustive list of objective factors” for use in comparing plaintiff’s pre- and post-accident lifestyle. These factors included, the nature and extent of the impairment; the type and length of treatment required; the duration of the impairment; the extent of any residual impairment; and the prognosis for eventual recovery. In disapproving the use of these factors, the Court stated, “Because the factors adopted by the Kreiner majority are not based in the statutory text, and this Court’s role is to apply the unambiguous statutory language, not improve it, we hold that the majority erred by adopting them.”
Propriety of Summary Disposition–The Court also made significant statements regarding the propriety of summary disposition that will very likely decrease the use of summary disposition to dispose of threshold claims. In this regard, in footnote 7 and footnote 27, the McCormick majority strongly suggested that if summary disposition would not be proper under MCR 2.116(C)(10), then it may be unconstitutional to interpret and implement Section 3135(2)(a) in such a way as to permit summary disposition. In this regard, the Court referred to the decision of the U.S. Sixth Circuit Court of Appeals in the case of Shropshire v Laidlaw Transit, Inc. for the proposition that the allocation of decision-making authority between judge and jury is “quintessentially procedural.” This raises serious constitutional questions as to whether the Legislature may have unconstitutionally invaded the Court’s exclusive authority to promulgate Court Rules regarding the practice and procedure of summary disposition when it enacted Section 3135(2). In making this point, the Court stated in Footnote 27, “As discussed in Footnotes 7 and 8 of this opinion, this provision may unconstitutionally conflict with MCR 2.116(C)(10) in certain cases. If it does, then a court should only apply MCL 500.3135(2) to the extent that it is consistent with MCR 2.116(C)(10). We do not reach this issue today, however, because there is no material factual dispute over any fact necessary to determining whether the serious impairment threshold has been met.”
Retroactivity—The McCormick decision does not specifically say anything about the date of its application. Presumably, however, because the decision clearly holds that Kreiner was wrongly decided and should be overruled and that Kreiner was a marked deviation from the 1995 statutory text, the McCormick decision would be applicable to any case that is currently pending in the court system or yet to be filed.
Jury Instruction Applicability—There is no specific discussion in the McCormick decision dealing with the issue of jury instructions. McCormick is a summary disposition case, not a jury instruction case. Therefore, it is not clear whether and to what extent it would be proper to use, in whole or in part, the Court’s threshold analysis in jury instructions where trial courts determine that summary disposition on the threshold is inappropriate.
Disposition of Case—Based on the foregoing analysis, the majority Opinion found that plaintiff Carrier had sustained a serious impairment of body function as a matter of law. His injuries included a fracture of the ankle which resulted in open reduction internal fixation surgery with a subsequent surgery to remove metal hardware. The plaintiff was off work for approximately 19 months and thereafter returned to a new work position because his employer determined that plaintiff was no longer physically capable of discharging his pre-accident job duties. The plaintiff also had radiologic evidence of the onset of early degenerative changes in his fractured ankle joint.
Dissenting Opinion—A vigorous dissent was written by Justice Markman who was joined by Justices Corrigan and Young. In his dissent, Justice Markman urged the correctness of the Kreiner analysis. Moreover, he decried the majority Opinion as amounting to a substantial weakening of the threshold definition contained in 1995 PA 222, which he claimed had now been interpreted by the majority in such a way as to permit recovery any time a plaintiff had sustained an objectively manifested impairment of an important body function regardless of how long the impairment lasted. Finally, Justice Markman would rule that plaintiff Carrier’s injuries did not constitute a serious impairment of body function as a matter of law and would thus affirm summary disposition in favor of defendant on the threshold issue.
