Michigan Court of Appeals; Docket #268477; Unpublished
Judges Cavanagh, Smolenski, and Talbot; 2-1 (Judge Talbot dissenting in part and concurring in part); 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)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Evidentiary Issues [3135]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fisher [RB #2428], interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed summary disposition for defendants because the trial court did not determine whether plaintiff provided sufficient evidence of a closed-head injury to avoid summary disposition.
The plaintiff in this case claimed he sustained a closed-head injury, ill-defined back and neck injuries, as well as aggravation of pre-existing back and neck injuries. The trial court granted defendants summary disposition, finding plaintiff failed to prove an objective manifestation of his injuries. The Court of Appeals disagreed and reversed, noting that because plaintiff alleged he sustained a closed-head injury, he was required to provide testimony under oath of a licensed allopathic or osteopathic physician who regularly diagnoses and treats closed-head injuries, that plaintiff may have sustained a serious neurological injury. However, the trial court did not address this issue. Therefore, the Court of Appeals reversed for further proceedings. Moreover, because the trial court failed to address plaintiff’s back and neck injury claims, as well as his aggravation of pre-existing condition claims, the court also reversed and remanded on this issue. In this regard, the court stated:
“The injuries plaintiff claims to have suffered include a closed-head injury, back and neck injuries, and an aggravation of pre-existing back and neck injuries. . . .
Here, the plain and ordinary language of the statute is clear–with regard to plaintiff’s alleged closed-head injury, all that he was required to establish to avoid summary disposition was that ‘a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.’ Contrary to the trial court’s analysis, there is no requirement that the plaintiff also establish that it was objectively manifested to avoid summary dismissal of his closed-head injury claim under MCL 500.3135(2)(a)(ii).
The trial court’s reliance on Kreiner for the proposition that the closed-head injury be objectively manifested was misplaced. Kreiner did not involve a purported closed-head injury. Rather, the focus in Kreiner was ‘whether plaintiffs’ impairments affect their general ability to lead their normal lives.’ Kreiner, supra at 130. In fact, the Kreiner Court noted that MCL 500.3135(2)(a)(ii) ‘creates a special rule for closed head injuries by providing that a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed head injuries testifies under oath that there may be a serious neurological injury. . . .
Because the trial court failed to properly consider the issue whether plaintiff presented the requisite proof of a closed-head injury to avoid summary dismissal, we reverse the dismissal of this claim and remand for its consideration by the trial court. Further, because the trial court failed to directly address plaintiff’s back and neck injury claims, as well as his aggravation of a pre-existing condition claim, we reverse their summary dismissal and remand for consideration of the claims.”
