Michigan Court of Appeals; Docket #291768; Unpublished
Judges Owens, Whitbeck, and Fort Hood; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
Leave to Appeal to Supreme Court denied 6/28/2011, Official Michigan Reporter Citation: Forthcoming;
Link to Order
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(7)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law McCormick Era: 2010 – present) [§3135(2)]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
Permanent Serious Disfigurement Definition [§3135(1)]
Determining Permanent Serious Disfigurement As a Matter of Law [§3135(1)(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam unpublished opinion, the Court of Appeals reversed the trial court’s Order granting summary disposition to the defendant on the plaintiff’s non-economic loss tort liability claims alleging that the plaintiff had sustained a serious impairment of body function and permanent serious disfigurement. The plaintiff in this case sustained multiple injuries, including a right hip fracture, a left leg fracture with intermedullary rodding, L5 disc fragmentation, left knee osteoarthritis, a left ankle ligament disruption requiring surgery, and a closed head injury. The trial court granted summary disposition on all of these issues by applying the threshold standards articulated by the Supreme Court in Kreiner v. Fisher. The Court of Appeals reversed, holding that because the Supreme Court recently overruled Kreiner in McCormick v. Carrier, the plaintiff’s threshold claim should be determined under the McCormick standards.
The Court first turned its attention to the plaintiff’s closed-head injury claim. The trial court had granted summary disposition on the closed-head injury claim for the reason that the plaintiff’s treating physician did not present testimony satisfying the “closed-head injury exception” contained in Sections 3135(2) so as to create a question of fact. The Court of Appeals reversed, citing Churchman v. Rickerson for the proposition that the closed-head injury exception does not constitute the exclusive way for a closed-head injury claim to create a question of fact for jury determination. On the contrary, closed-head injury claims can create questions of fact in the same way as non-closed head injury claims. In those situations, a trial court is not permitted to grant summary disposition without first making factual findings required by Section 3135(2)(a)(i) or (ii). Citing the earlier Court of Appeals decision in May v. Sommerfield, the Court concluded that it was improper for the Court to grant summary disposition to the defendant on the closed-head injury claim without making the requisite findings that no factual dispute existed with respect to those claims.
The Court then addressed the plaintiff’s claim regarding her lumbar and ankle injuries with respect to which there were significant causation issues. Because of those causation disputes, the Court held there was “a material factual dispute regarding the nature“ of these injuries. Therefore summary disposition was not proper by the trial court.
The court then turned its attention to the plaintiff’s orthopedic fracture injuries, which primarily consisted of a right hip fracture and a fracture of the left leg regarding open reduction internal fixation surgery. With regard to those injuries, the court concluded that the plaintiff had presented evidence under McCormick v. Carrier demonstrating that these injuries satisfied the three prongs of the serious impairment of body function definition: (1) objectively manifested impairment; (2) impairment involving an important body function; (3) impairment that affected the plaintiff’s general ability to lead her normal life. The Court then analyzed these orthopedic injuries against each of these serious impairment definitional elements.
With regard to the objectively manifested impairment element, the Court of Appeals found that the plaintiff had shown an objectively manifested impairment related to these orthopedic injuries. In so holding, the court emphasized that the statute requires an objectively manifested impairment not an objectively manifested injury. In elaborating on this standard, the court stated:
“…according to McCormick, “the common meaning of ‘objectively manifested’ in MCL 500.3135(7) is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.” The Court noted that the plaintiff need not show that his or her injury was objectively manifested. Under the plain language of the statute, “the proper inquiry is whether the impairment is objectively manifested.” The Court clarified that “while an injury is the actual damage or wound, an impairment generally relates to the effect of that damage.” Thus, “when considering an ‘impairment,’ the focus ‘is not on the injuries themselves, but how the injuries affected a particular body function.’ “ The Court added that, while not always required, medical testimony “will generally be required to establish an impairment”; that is, to establish ‘that there is a physical basis for their subjective complaints of pain and suffering.’ “
“Here, after the accident, emergency medical services transported Hinson to Sinai-Grace Hospital. In the emergency room, doctors diagnosed her with an acute distal left femoral fracture and a right acetabular fracture. She was admitted to the hospital, and the next day, doctors performed surgery to place intermedullary rodding in her left femur. After undergoing rehabilitation, Hinson was discharged from the hospital on March 24, 2006.”
“…Based on the foregoing evidence, and despite the steady improvement in her condition as healing took place, we conclude that Hinson has shown an objectively manifested impairment. She suffered injury to her femur and hip. She was required to have surgery on her femur. She was hospitalized for almost two weeks. Just over two weeks after discharge, she was still having pain and was still in a wheelchair. A month after that, her pain was gone, but she was still using a wheelchair intermittently and was given crutches. It was not until over another month later that she finally was able to regain full weight bearing status, with a limp. Thus, Hinson presented evidence that she suffered actual symptoms or conditions that could objectively be perceived as impairment of a body function.”
With regard to the important body function element, the court concluded that the plaintiff had satisfied this prong, and stated in pertinent part:
“…whether a body function is “important” is “an inherently subjective inquiry” that will “vary depending on the person.” That is, “because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life.”
“Here, we conclude that Hinson’s impairments satisfy this prong. She was hospitalized for two weeks, and used a wheelchair for approximately a month and a half following her discharge. Walking is indisputably an important body function.”
With regard to the general ability to lead a normal life element, the court stated that the plaintiff had also satisfied this prong of the three part threshold definition. In this regard the Court stated in pertinent part:
“With respect to the third prong of the serious impairment test, the Court explained that in order to affect a person’s general ability to lead his or her normal life, the objectively manifested impairment of an important body function must influence some of the plaintiff’s capacity to live in his or her normal manner of living. Further, because this analysis is subjective, “[d]etermining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.” The Court noted that this inquiry does not require that the plaintiff’s ability to lead his or her normal life be destroyed – the statute merely requires that that ability be affected. “Thus, courts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead her or her pre-incident life, the person’s general ability to do so was nonetheless affected.” The Court went on to clarify that, because “the plain language of the statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, … there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.” The Court further added that there is no “no express temporal requirement as to how long an impairment must last [.]”
“…viewing the evidence in a light most favorable to Hinson as the non-moving party, the evidence showed Hinson’s injuries affected at least some of Hinson’s general ability to live her normal life. Specifically, she underwent surgery, she was hospitalized for two weeks, and used a wheelchair for approximately a month and a half following her discharge. Before the accident, however, Hinson went dancing, had sexual relations on a daily basis, played basketball, played with her daughter, and did household chores. After the accident, her ability to engage in these activities was significantly reduced, if not eliminated. On the basis of this evidence, we conclude that her injuries affected at least some of Hinson’s general ability to live her normal life.”
“We therefore conclude that, viewing the evidence in a light most favorable to her, Hinson has satisfied all three prongs of MCL 500.3135(7) and met the threshold serious impairment requirement with respect to the injuries to her hip and femur. Accordingly, the trial court erred in granting TGI Friday’s motion for summary disposition regarding these claims.”
The court also addressed the plaintiff’s claim that her surgical scars constituted permanent serious disfigurement. The court held that the trial court improperly granted summary disposition on this issue because the trial court did not make specific factual findings on the record regarding this claim. In this regard, the court stated in pertinent part:
“The Legislature has not defined “permanent serious disfigurement.” However, this Court has stated that a “permanent serious disfigurement” is a long-lasting and significant change that mars, deforms, or defaces the injured person’s appearance. In determining whether an injury constitutes a permanent serious disfigurement, a court must objectively examine the physical characteristics of the injury and assess whether, in light of the court’s common knowledge and experience and the full spectrum of the plaintiff’s life activities, the injury’s outward physical characteristics significantly mar, deform, or deface his or her overall appearance. “Ascertaining the seriousness of disfigurement may often require physical observation by the trial court.”
“Moreover, recovery for disfigurement is not limited to those disfigurements that are always visible. That is, a plaintiff’s ability to conceal the disfigurement is not determinative.”…
“…Thus, a court “must consider the effect of the disfigurement on the injured person’s appearance without the use of devices designed to conceal the disfigurement[.]”…
“Hinson claims that scars on her leg constitute permanent serious disfigurement. Here, however, the trial court did not make any findings on the record regarding her claim. The trial judge simply stated that “[t]here is not enough to go any where [sic] with the… serious disfigurement in this case[,]” and then entered an order granting TGI Friday’s motion for summary disposition without any further explanation. Thus, we must also remand this issue for the trial court to make the requisite findings and legal conclusion on the record.”
In its final disposition on the above issues, the court concluded that the plaintiff’s claim for closed-head injury should not have been dismissed via summary disposition because the trial court had not conducted the appropriate inquiry to determine if there was a factual dispute. With regard to plaintiff’s fractured hip and fractured femur injuries, the court concluded that under McCormick, the plaintiff had satisfied all three prongs of the serious impairment of body function definition set forth in Section 3135(7) and therefore, summary disposition in favor of the defendant was not proper. With regard to the plaintiff’s ankle and back injuries, the court concluded that there was a material factual dispute regarding the causal nature of those injuries. Finally, the court concluded that summary disposition on the plaintiff’s permanent serious disfigurement claim was not proper because the trial court had not made the requisite findings and legal conclusions that were necessary before deciding that issue as a matter of law.
