Michigan Court of Appeals; Docket No. 227759; Published
Judges Wilder, Bandstra and Hoekstra; unanimous
Official Michigan Reporter Citation: 252 Mich. App. 643, Link to Opinion 
STATUTORY INDEXING:
Noneconomic Loss Liability for Serious Impairment of Body Function Threshold (Definition) [3135(7)]
Objective Manifestation Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion, the court held that SJI 36.11 accurately defined the statutory phrase of “serious impairment of body function,” and in particular, correctly defined the threshold of “objectively manifested impairment.” The court also held that there is no substantive difference between the phrases “objectively manifested impairment” and “objectively manifested injuries” for purposes of the statutory definition of “serious impairment of body function.” In reaching this conclusion, the court held that the Supreme Court's decision in DiFranco v Pickard, supra, sets forth the controlling definition of objectively manifested impairment and the legislature, in leaving that term undefined, chose not to disturb the DiFranco definition. In this regard, the court stated:
“. . . the DiFranco court clarified its Cassidy opinion, explaining that ‘plaintiffs must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering’ and that ‘the plaintiff must prove that his non-economic losses arose out of a medically identifiable injury.’ DiFranco, supra, at 74-75 . . . . The legislature in defining ‘serious impairment of body function,’ relied on the terminology that the impairment must be ‘objectively manifested.’ As explained above, that phrase is terminology that our Supreme Court first articulated in Cassidy and then further refined in DiFranco. . . . Both Cassidy, supra, at 505, and DiFranco, supra, at 70, contemplated the injury being objectively manifested. In that regard, the DiFranco Court explained that a plaintiff's non-economic losses must arise out of a ‘medically identifiable injury.’ The legislature is presumed to have been aware that our Supreme Court in DiFranco construed the phrase ‘objectively manifested’ to require proof that the injury is medically identifiable. The statute itself gives no indication that when incorporating that language it intended to change the law. We believe that the legislature’s use of the phrase ‘objectively manifested’ was intended to adopt the meaning of that term as set forth in Cassidy and DiFranco, and had our legislature intended a new interpretation, it would have adopted specific language clarifying that intent. . . . To the extent that the trial court relies on the fact that the statute refers to an objectively manifested ‘impairment’ and Cassidy and DiFranco utilized the phrase objectively manifested in conjunction with ‘injury,’ we find that the distinction does not affect our opinion that the standard instruction accurately states the law. Some dictionaries indicate that ‘impair’ may be synonymous with ‘injure.’”
In reaching this conclusion, the Court of Appeals ruled that the trial court incorrectly defined the phrase “objectively manifested impairment” when the trial court ruled that “as long as somebody else can satisfy themselves that the impairment is real by looking, seeing, whether it's a wince on a person's face or a slowness in their gait, their inability to do something, simply beyond them telling them, then it can be said to be objectively manifested.” In rejecting this definition, the Court of Appeals noted that such a definition would “not require expert testimony; rather, anyone who observes the plaintiff can verify the existence of an impairment. . . . Thus, according to the trial court, a plaintiff who is injured in any manner in an automobile accident potentially can establish the ‘objectively manifested’ portion of the statutory definition of ‘serious impairment of body function’ if he or she manifests some observable condition, regardless of whether there is any medical basis for correlating the condition to something that the person experienced as a result of the accident.” The court found this definitional approach to be inconsistent with the statutory language and the judicial history preceding the enactment of that language. Accordingly, the court held “we conclude that SJI 2d 36.11, which states in pertinent part that ‘in order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis,’ is an accurate reflection of the law.”
