Michigan Court of Appeals; Docket No. 290664; Unpublished
Judges Shapiro, Jansen, and Donofrio; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [3135(2)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [3135(3)(b)]
Liability for Economic Loss Caused by Uninsured Tortfeasors [3135(3)(b)]
TOPICAL INDEXING:
Underinsured Motorist Coverage
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals addressed three separate issues dealing with plaintiff’s claim for uninsured motorist benefits: (1) the serious impairment of body function threshold in light of the Supreme Court’s opinion in McCormick v Carrier; (2) plaintiff’s claim for excess work loss; and (3) whether plaintiff complied with certain notice provisions in his policy.
With regard to plaintiff’s claim for noneconomic damages, which had been dismissed by the trial court utilizing Kreiner v Fischer standards, the Court of Appeals remanded the case to the trial court with instructions to apply the standards set forth by the Michigan Supreme Court in its recent decision in McCormick v Carrier. In this regard, the Court of Appeals stated:
“On remand, we direct the trial court to utilize the following test for ‘the proper interpretation of the clear and unambiguous language of MCL 500.3135’ as pronounced in McCormick, at slip op pp 33-34, in its determination of whether any impairment plaintiff sustained as a result of the car accident have affected his general ability to lead his normal life:
To begin with, the court should determine whether there is a factual dispute regarding the nature and the extent of the person’s injuries, and, if so, whether the dispute is material to determining whether the serious impairment of body function threshold is met. MCL 500.3135(2)(a)(i) and (ii). If there is no factual dispute, or no material factual dispute, then whether the threshold is met is a question of law for the court. Id.
If the court may decide the issue as a matter of law, it should next determine whether the serious impairment threshold has been crossed. The unambiguous language of MCL 500.3135(7) provides three prongs that are necessary to establish a ‘serious impairment of body function’: (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).
The serious impairment analysis is inherently fact- and circumstance-specific and must be conducted on a case-by-case basis. [McCormick, at slip op p 34 (internal footnotes omitted.)
Also on remand, the parties and the trial court should be cognizant of the fact that McCormick stated that ‘[d]etermining 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.’ McCormick, at slip op p 20 (emphasis added). McCormick did not involve a plaintiff with a preexisting impairment and did not further de3fine or elaborate on the meaning of the phrase ‘life before and after the incident.’ Id. In the instant case, plaintiff does have a past history of disability and inability to work in his pre-accident life as a result of suffering a heart attack and undergoing hip replacement surgery in 2001. . . . In the trial court, plaintiff relied on Benefiel v Auto Owners Ins Co, 277 Mich App 412; 745 NW2d 174 (2007), vacated 482 Mich 1087 (2008), which was released after oral argument was heard on defendant’s motion for summary disposition but was later vacated by our Supreme Court. Both the decision of this Court and our Supreme Court’s order in Benefiel were issued under the now reversed Kreiner framework. To the extent the issues discussed in Benefiel are raised in the instant case and revisited in the trial court, we caution the trial court to use the new standards pronounced in McCormick.”
With regard to plaintiff’s claim for excess work loss, the Court of Appeals noted that such claims are controlled by Section 3135(3)(c), which does not require proof of a statutory threshold injury. Therefore, it was erroneous for the trial court to dismiss plaintiff’s excess work loss claim simply because plaintiff may not have sustained serious impairment of body function.
The notice issue in this case involved a provision in plaintiff’s uninsured motorist policy that required a hit-and-run accident be reported to the police within 24-hours of its occurrence. Plaintiff admitted that he never reported the hit-and-run incident to the police which occurred in the early morning hours on a Saturday. However, plaintiff did call the offices of defendant Home-Owners Insurance Company on Monday morning to report the incident and was told by defendant’s agent that there was no need to file a police report. The defendant did not dispute this contention, nor did the defendant dispute it had been prejudiced by plaintiff’s failure to report the incident to the police. The Court of Appeals held that whether plaintiff complied with the policy provision should be determined by utilizing the “substantial performance of contract rule.” In this regard, the court stated, “A contract is substantially performed when all the essentials necessary to the full accomplishment of the purposes for which the thing contracted has been performed with such approximation that a party obtains substantially what is called for by the contract.” The court went on to say, “Plaintiff’s breach was relatively minor and did not deprive defendant of that for which it contracted. The breach did not undermine defendant’s rights or jeopardize its defense. Defendant received notice of plaintiff’s claim on a timely basis and was able to proceed with its investigation unhindered. . . . There is no evidence that defendant was prejudiced by the slight breach. Significantly, defendant does not contest plaintiff’s argument that it was not prejudiced. Since the accident occurred when it was dark outside, there were no witnesses, and defendant did not get a look at the driver who rear-ended him, police investigation would have been of limited usefulness. . . .” The court went on to say that, based on Koski v Allstate Ins Co, 456 Mich 439 (1998), “Even if the reporting requirement is viewed as a condition precedent to defendant’s duty to provide coverage, defendant’s claim still fails because it cannot demonstrate the requisite prejudice, for the reasons stated above.” Therefore, the Court of Appeals held that the trial court did not err in concluding that there was a genuine issue of fact regarding whether plaintiff substantially performed his duties under the insurance contact.
