Michigan Court of Appeals; Docket #295857; Unpublished
Judges Beckering, Whitbeck, and M. J. Kelly; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Entitlement to No-Fault PIP Benefits: Bodily Injury Requirement [3105(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s denial of the plaintiff’s motion for new trial on the ground that the jury’s verdict was against the great weight of the evidence regarding whether the plaintiff had sustained an accidental bodily injury pursuant to §3105 of the No-Fault Act.
The plaintiff in this case was seeking payment of certain no-fault benefits arising out of a motor vehicle accident that occurred on February 24, 2004, when the plaintiff was rear-ended when she slowed to yield for an emergency vehicle. The plaintiff sought no-fault benefits from State Farm for this accident on the basis that the motor vehicle accident aggravated and/or exacerbated pre-existing conditions to her back and neck. Notably, State Farm paid no-fault benefits to the plaintiff following the 2004 accident through May 2, 2007. Apparently, at some point during that time period, the plaintiff filed a lawsuit against State Farm for payment of no-fault benefits. The plaintiff and State Farm ultimately settled this lawsuit for all claims arising from the date of the accident through May 2, 2007. Subsequently, the plaintiff sought payment from State Farm for expenses she had incurred specifically in relation to treatment for her cervical herniated disc, including the cost of her neck surgery.
In defending the second lawsuit, State Farm challenged whether the plaintiff sustained an accidental bodily injury in the 2004 accident. State Farm’s argument that the plaintiff did not sustain an accidental bodily injury included the fact that the plaintiff sustained back and neck injuries in a motor vehicle accident that occurred in 1995 and another motor vehicle accident that occurred in 1996. The plaintiff’s doctors generally supported the proposition that the plaintiff’s neck and back conditions were exacerbated by the 2004 accident. In this regard, the plaintiff’s treating neurosurgeon did not find any objective neurological impairment and suspected that the plaintiff’s symptoms were myofascial in origin, but concluded that the 2004 accident resulted in “some exacerbation of a pre-existing condition.” This neurosurgeon further concluded that the MRI of plaintiff’s cervical spine demonstrated some loss of a normal curvature of the plaintiff’s spine, which was indicative of some muscle spasm in the neck and again was consistent with the neurosurgeon’s diagnosis of a myofascial injury. Notably, this neurosurgeon determined that the plaintiff’s bulging disc was “non-compressive” and that the plaintiff did not have “any ruptured disc or any significant abnormality.”
The plaintiff’s treating family physician disagreed with the neurosurgeon that the 2004 MRI did not show any neurological abnormality and he ultimately concluded that the herniation was attributable to the accident. However, the family physician noted it was possible that the plaintiff’s symptoms were degenerative in nature.
The plaintiff also consulted with a spinal surgeon in 2007, who determined that an MRI taken in 2007 demonstrated an extruded herniation and cranial migration from C5-C6 disc at the left central location with some flattening of the left hemicord. He ultimately diagnosed plaintiff with a cervical herniated disc, resulting in cervical myopathy, radiculopathy, and stenosis and concluded that the herniated disc was probably related to the 2004 motor vehicle accident. In July 2007, this spinal surgeon ultimately performed a laminectomy on plaintiff with respect to this herniated disc.
In reviewing the trial court’s denial of the plaintiff’s motion for new trial, the Court of Appeals first noted that when a party challenges a jury verdict as being against the great weight of the evidence, the court must give substantial deference to the judgment of the trier of fact and, if there is any competent evidence to support the jury’s verdict, the court must defer to the jury’s assessment of the witnesses’ credibility.
The court further noted that the question of whether there was an accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle is ultimately a question of fact to be resolved by the jury. In support of this proposition, the court cited Allard v State Farm Ins Co, 271 Mich App 394 (2006) and McKim v Home Ins Co (On Remand), 163 Mich App 828 (1987).
In reviewing the evidence submitted to the jury regarding whether the plaintiff sustained an accidental bodily injury, the Court of Appeals ultimately determined that the jury’s determination should be upheld, because there was competent evidence to support the finding that there was no accidental bodily injury. The court noted that the plaintiff’s theory was that the accident caused the original disc injury that led to the herniation and surgery. However, State Farm had put forth proof through its expert that the plaintiff’s cervical problems did not arise from the accident, and that the plaintiff required the surgery simply due to a degenerative condition and would have needed the surgery regardless of the accident. In this regard, the court held:
“Understood in this light, we must conclude that there was competent evidence to support the jury’s verdict. Delk had a history of neck problems before the 2004 accident. And there was conflicting evidence at trial with regard to whether her cervical herniated disc was attributable to trauma caused by the 2004 automobile accident or to a degenerative condition. A medical examiner hired by State Farm did not find any residual problems attributed to the February 2004 accident, and instead believed that Delk’s neck problems were attributable to a degenerative condition that would continue to worsen over time. He also opined that ‘the cervical spine surgery did not address any injury or condition from the motor vehicle accident of February 2004.’ Dr. Friedman opined that ‘a disc bulge is not a traumatic finding’ and that it does not relate to the 2004 automobile accident. Dr. Vibert also noted that Delk’s symptoms could be related to a degenerative condition.
As our Supreme Court once observed, when there is testimony in opposition, one ‘viewpoint or the other must prevail.’ Rossien v Berry, 305 Mich 693, 701; 9 NW2d 895 (1943). Here, there was clear evidence to support a finding that the injury at issue arose from the 2004 accident, but there was also evidence to support the opposite finding. And, the trial court properly deferred to the jury’s resolution of this competing evidence. Allard, 271 Mich App at 406.”
