Michigan Court of Appeals; Docket #291876; Unpublished
Judges: Borrello, Cavanagh and Owens; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
Leave to Appeal to Supreme Court denied 6/24/2011, Official Michigan Reporter Citation: 489 Mich. 959;
For more information, see note at end of summary; Link to Order
STATUTORY INDEXING:
§500.3135: TORT LIABILITY FOR NONECONOMIC AND ECONOMIC LOSS
Serious Impairment of Body Function Definition (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)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed summary disposition in favor of the Defendant on the plaintiff’s non-economic loss, tort liability claims alleging serious impairment of body function. The trial court granted summary disposition to the defendant under the standards articulated in Kreiner v. Fisher. The Court of Appeals reversed because Kreiner was overruled in McCormick v. Carrier and, therefore, the plaintiff’s threshold claim must be analyzed in terms of the McCormick criteria.
The plaintiff in this case suffered a back injury described as “a herniated disc” which required medical treatment including physical therapy, spinal nerve block injections, and prescription oral pain medication. Subsequent to the accident, the plaintiff was declared disabled by the Social Security Administration “because of degenerative disease in the lumbar spine; chronic bilateral L5-S1 radiculopathy; diabetes; and advance peripheral neuropathy.” Thus, the court concluded that plaintiff’s accident related back injury had “minimally” affected plaintiff’s “employment situation.” The main question was what impact his injury had on other aspects of his life. In this regard, the court focused on two primary issues: (1) Limitations on the plaintiff’s ability to work part time as a drummer in band; and (2) The plaintiff’s inability to play golf which he enjoyed regularly doing on a weekend basis.
With regard to the limitations on the plaintiff’s ability to perform as a drummer, the plaintiff argued that “it was not so much the actual performing on drums that his pain made problematic, but the loading and unloading of the equipment.” In finding this to be evidence of an impairment of the plaintiff’s ability to lead his normal life, the court stated:
“plaintiff plausibly protests, “To rely on third persons to fulfill one’s own responsibilities is not leading a normal life.” We agree that, to the extent that residual pain resulting from the subject accident, as opposed to earlier or other injuries, has caused plaintiff to give up drumming, the accident has affected his ability to lead his normal life.”
With regard to the plaintiff’s inability to golf, the court noted that even though the plaintiff only golfed on weekends, regular weekend golfing was an important part of his life. Therefore, the inability to play golf on weekends affected the plaintiff’s general ability to lead life. In this regard, the court stated.
“Although plaintiff testified to being a serious, daily golfer at one time, he reported that he was only a weekend golfer before the accident. But some weekend golfers are nonetheless ardently serious ones. Although losing a pastime enjoyed once a week may not constitute suffering a change in the trajectory of one’s life, when an accident has cost a serious weekend golfer his continuing enjoyment of that avocation, that accident has affected that golfer’s ability to lead his or her normal life.”
The plaintiff also claimed that his back injuries prevented him from doing household chores. In this regard, the plaintiff contended that he was only able to do household chores in small increments of time. In finding that this was evidence of an impaired ability to lead the plaintiff’s normal life, the court stated:
“Plaintiff described no household chores he had to discontinue entirely, but several he had to do in different ways, including by attending to them in small pieces. Plaintiff thus described not so much chores he could no longer do at all, but chores that the subject accident and injuries have hampered his ability to perform.”
Finally, the court held that the plaintiff’s inability to prove continuing physician imposed restrictions was not fatal to his claim under the McCormick standards inasmuch as physician imposed restrictions are not a condition precedent to establishing a threshold injury and neither are temporal requirements. In this regard, the court stated:
“Kreiner’s requirement that restrictions based on perceived pain be “physician-imposed,” not “[s]elf-imposed,” 471 Mich at 133 n 17, is no longer in force in light of the overruling of Kreiner. Further, McCormick admonishes that the no-fault act includes no temporal element for purposes of determining whether injuries have affected a person’s ability to lead his or her normal life. ___ Mich at ___, slip op at 21. We therefore conclude that plaintiff’s physician-imposed restrictions, when considered together with his own self-imposed restrictions because of lingering pain from the subject accident, militate against the conclusion that the injuries resulting from the accident have fallen short of affecting his ability to lead his normal life.”
In conclusion, the court held that although the trial court properly granted summary disposition to the defendant under the Kreiner standards, “…the new standards set forth in McCormick compels reversal. We therefore vacate the trial court’s order granting summary disposition to defendant, and remand to the trial court with instructions to decide defendant’s motion anew, as guided by McCormick.”
The MI Supreme Court denied Application for Leave to Appeal in an Order dated 6/24/2011. In this Order, the Justices wrote at length regarding their view of the decision in McCormick v. Carrier. Chief Justice young concurred in the denial of leave for the reason that the he believes the legislature “must speak if it wishes to preserve the no fault act’s compromise between the provision of quick, generous insurance benefits without proof of fault in the act’s restrictions on access to additional tort recovery.”
Justice Markmann concurred in denying leave to appeal for the reason that the trial court should be permitted the opportunity to analyze plaintiff’s injuries in light of the McCormick standard. If the trial court concludes that the plaintiff’s injuries satisfy the McCormick standard, then Justice Markman would urge the Supreme Court to take and presumably reverse such a ruling. Justice Cavanagh concurred in denying leave to appeal but did so in order to emphasize that the McCormick case stays very true to the specific text set forth in Section 3135(7) and does not, contrary to the views of Justices Markman and Young, eliminate the serious impairment of body function threshold. Specifically, Justice Cavanagh emphasized that McCormick does not stand for the proposition that temporal considerations are irrelevant under McCormick. In this regard, Justice Cavanagh stated, “McCormick simply recognized that the statute does not expressly contain a specific temporal or permanency requirement. Thus, as explained in McCormick, there is simply no basis to conclude that temporal considerations are irrelevant or that a momentary impairment is sufficient under McCormick’s interpretation of MCL 500.3135…. Accordingly, just as the no-fault system did not cease before Kreiner, I doubt that it will do so in light of McCormick.”
