Michigan Court of Appeals; Docket #261884; Unpublished
Judges Hoekstra, Meter, and Donofrio; 2-1 (Judge Meter concurring); 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
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In this 2-1 unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed the trial court order granting defendants’ motion for directed verdict.
The plaintiff in this case sustained ill-defined neck and back injuries as well as a closed head injury. The trial court granted defendants’ motion for directed verdict, ruling that plaintiff failed to produce evidence from either a licensed allopathic or osteopathic physician to support her assertion she sustained a closed head injury. It also determined that plaintiff failed to present sufficient evidence she sustained a serious impairment of body function. Moreover, the trial court found that defendants rebutted plaintiff’s evidence regarding liability.
In reversing the trial court’s decision, the Court of Appeals first noted that plaintiff was not required to provide evidence of a licensed allopathic or osteopathic physician regarding her closed head injury in order to survive defendants’ motion for directed verdict. Instead, the court explained that such evidence is only required to automatically create a question for a jury that a serious neurologically based injury may exist. In this case, plaintiff presented evidence from her psychologist regarding her closed head injury. Because the trial court failed to consider whether plaintiff presented the requisite proof of a closed head injury, wholly separate and distinct from the automatic exception, the Court of Appeals reversed and remanded for a new trial to determine the existence of a threshold “closed head” injury. In this regard, the court stated:
“Contrary to the determination of the trial court and argument of defense counsel, the statutory provision does not provide the exclusive manner or means for a plaintiff to establish a closed-head injury and the existence of a factual dispute. . . . MCL 500.3135(2)(a)(ii) does not delimit the admissibility of evidence pertaining to the existence of a closed-head injury. Rather, it is simply an exception that permits a party to automatically create a question for a jury through provision of testimony by a physician that a serious neurologically based injury might exist. Our review of the record reveals that the trial court failed to properly consider the issue whether plaintiff presented the requisite proof of a closed-head injury pursuant to MCL 500.3135(2)(a)(i) and (ii) wholly separate and distinct of the automatic exception in MCL 500.3135(2)(a)(ii). Because the trial court did not make the required findings, we reverse and remand for a new trial for the purpose of determining the existence of a threshold ‘closed-head’ injury.”
The Court of Appeals next ruled that the trial court improperly found that plaintiff failed to present sufficient evidence that she sustained a serious impairment of body function regarding her neck and back injuries. In so deciding, the Court of Appeals reasoned that if these injuries had been considered in relation to plaintiff’s alleged closed head injury, the trial court may have reached a different conclusion. In this regard, the Court of Appeals stated:
“[T]he trial court granted a directed verdict in favor of defendant on plaintiff’s neck and back claims without the benefit of hearing evidence related to plaintiff’s claimed associated closed-head injury. We have already determined that the trial court erred when it did not properly consider whether plaintiff presented the requisite proof of a closed-head injury. With this in mind, if ultimately admissible, evidence relating to the closed-head injury could affect the nature and extent of plaintiff’s injuries on the whole, especially in relationship to her other asserted neck and back injuries. For this reason, we must vacate the trial court’s directed verdict with respect to plaintiff’s neck and back claim, and remand for a new trial on threshold injuries.”
Finally, the Court of Appeals determined that plaintiff presented sufficient evidence on the question of liability to survive defendants’ motion for a directed verdict. Although defendants provided contradictory evidence on the issue of liability, credibility determinations are questions for the finder of fact, not the trial court. In this regard, the Court of Appeals reasoned:
“After reviewing the record in the light most favorable to plaintiff, granting plaintiff every reasonable inference, and resolving any conflict in the evidence in plaintiff’s favor to decide whether a question of fact existed, it appears that plaintiff has presented evidence regarding liability for occurrence of the accident. Defendants have certainly disputed plaintiff’s evidence. But, the fact remains that the evidence proffered by plaintiff does present questions of fact that the trial court should have left to the jury. Because factual questions exist involving witness credibility determinations on which reasonable jurors could differ, the trial court erred in granting a directed verdict on the issue of liability, and we remand for a new trial on liability.”
