Michigan Court of Appeals; Docket #269817; Unpublished
Judges Murray, Fitzgerald, and Owens; 2-1 (Judge Fitzgerald concurring); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Revised Judicature Act (Miscellaneous Provisions)
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In this 2-1 unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of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 affirmed the trial court Order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses.
The plaintiff in this case claimed he sustained a closed-head injury in a motor vehicle accident which occurred in September, 2002. In affirming the trial court’s decision, the Court of Appeals first found that plaintiff failed to present admissible evidence regarding his closed-head injury. Although plaintiff presented an affidavit of a licensed neurologist in support of his claim, the affidavit which was taken in Illinois and notarized, was inadmissible under MCL 600.2102(4), because it was not certified by the clerk of the county where the affidavit was taken. In this regard, the court stated:
“The affidavit was taken before and signed by a notary public of the state of Illinois. However, the affidavit does not indicate that the clerk of the court of McHenry County, Illinois, where the affidavit was signed, certified under seal that the notary public was authorized as such at the time the affidavit was signed. In Apsy v Memorial Hosp (On Reconsideration), 266 Mich App 666, 676; 702 NW2d 870 (2005), this Court held that MCL 600.2102 requires that an out-of-state affidavit must meet the special certification requirements included in MCL 600.2102(4) before it can be received and considered by the court. Because the Ferley affidavit did not meet these requirements, the trial court was not permitted to receive the affidavit and consider it when ruling on defendant’s motion for summary disposition.”
The court next determined that plaintiff’s injuries did not affect his ability to lead his normal life. In so finding, the court noted that before the accident, plaintiff was unable to work due to pre-existing injuries and received Social Security disability benefits. In addition, he spent his day looking out a window. After the accident, plaintiff remained unable to work, continued to receive Social Security disability benefits, and again spent his day looking out the window. In this regard, the court stated:
“. . . the September 15 accident did not significantly change the course of plaintiff’s normal life. Although plaintiff complained of neck, shoulder, and back pain and decreased range of motion in his right arm, and claimed that these problems were caused by the motor vehicle accident, his physician noted that his pain was a chronic condition and that the decreased range of motion in his right arm was an effect of the April 2002 stroke. Further, any physical injuries that plaintiff suffered in the September 15 accident did not significantly affect the manner in which he lived his life. After the accident, plaintiff still did not work, still received Social Security disability benefits, and still spent his days staring out the window of his apartment.”
