Michigan Court of Appeals; Docket No. 298616; Unpublished
Judges Ronayne Krause, Cavanagh, and Jansen; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (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)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(b)]
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Loss of Earning Capacity [§3107(1)(b)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished unanimous per curiam opinion regarding plaintiff’s threshold claims for non-economic loss, the Court of Appeals reversed the trial court’s grant of summary disposition in favor of defendant on the threshold issue because the trial court applied the Kreiner v. Fisher decision to plaintiff’s threshold claim and Kreiner has since been overruled by the Supreme Court in McCormick v. Carrier. In characterizing the relevant new standard under the McCormick decision, the court stated:
“courts should focus on the extent to which an injury affects a person’s ability to live his or her life rather than on how much the injury affects the person’s life itself.”
The plaintiff in this case contended he had sustained a closed head injury, spinal injuries, and various head, neck and shoulder injuries. The trial court had disposed of plaintiff’s threshold claim as a matter of law under the Kreiner decision because plaintiff had not adequately demonstrated a question of fact under the closed head injury exception set forth in Section 3135(2)(a). Accordingly, the Court of Appeals held the case should be remanded to the circuit court to be decided under the new McCormick standards.
The Court of Appeals also affirmed the trial court’s ruling that plaintiff had not presented adequate evidence regarding his excess economic loss tort claim because plaintiff had failed to establish that he suffered any actual loss of earnings as a result of the accident. The court stated that in order to maintain an excess economic loss tort claim for loss of earnings, the claimant must demonstrate an actual loss of income from work the injured person would have performed had he not been injured. Damages are not recoverable for a mere loss of earning capacity. In this particular case, plaintiff's subsequent termination from his independent contractor work was not in any way related to his automobile accident. Therefore, plaintiff had not sustained any loss of income attributable to the accident. Accordingly, he was not eligible for work loss benefits under Section 3107(1)(b) and was likewise, not entitled to maintain a tort action for excess economic damages under Section 3107(3)(c). Accordingly, the trial court’s decision granting summary disposition on plaintiff’s excess economic loss tort claim was affirmed.
