Michigan Court of Appeals; Docket #226215; Unpublished
Judges O’Connell, Sawyer and Smolenski; 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 [3135(7)]
Trial Procedure Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion the Court of Appeals, relying on May v Sommerfield and Kern v Blethen-Coluni, ruled that an “outcome-determinative genuine factual dispute” existed with regard to whether plaintiff had sustained a serious impairment of body function and, as a result, the trial court did not err in submitting the case to the jury and in denying plaintiff's motion for directed verdict and JNOV. After the case was submitted to the jury, the jury returned a verdict of no cause for action. The plaintiff had been involved in two (2) previous automobile accidents before the subject accident. In this case, plaintiff claimed that her most recent accident had aggravated prior existing neck and shoulder problems, including a prior surgical repair. In ruling that summary disposition was inappropriate, the court said, “the record evidence is conflicting with respect to the extent and nature of plaintiff's injuries. Consequently, the jury's conclusion that plaintiff did not sustain a serious impairment of body function required a credibility determination. 'Assessing credibility and weighing testimony is the prerogative of the trier of fact,' and this Court will not review anew questions involving the credibility of witnesses.” In reaching its holding, the court observed that the threshold requirement that an injury be “objectively manifested” is a requirement previously construed in the case of Williams v Payne, 131 Mich App 403 (1984) as meaning that the injury must be “subject to medical measurement.” Even though DiFranco v Pickard, 427 Mich 32 (1986) held that the Williams' decision was wrongly decided, the Court of Appeals in Kern v Blethen-Coluni stated that 1995 PA 222 is a return to the standards of Cassidy and its progeny. The court's comments on this issue, however, appear to be dicta as they were not necessary to resolve any dispositive issue in this case.
