Michigan Court of Appeals; Docket No. 298395; Unpublished
Judges Stephens, Sawyer, and Kelly; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion 
STATUTORY INDEX:
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)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
TOPICAL INDEX:
Not Applicable
CASE SUMMARY:
In this unpublished unanimous per curiam opinion regarding plaintiff’s threshold claims for non-economic loss, the Court of Appeals vacated the trial court’s grant of summary disposition in favor of defendant on the threshold issue and remanded for further proceedings because the trial court decided the issue under the Kreiner v. Fisher standard, which the Supreme Court overruled in McCormick v Carrier while this appeal was pending and set forth a relative new standard.
In this case, the plaintiff was in an accident and suffered a “broken left foot,” which required his foot to be in a cast for three to four weeks and then in an orthopedic boot. Consequently, he missed approximately 90 days of work, but subsequently returned to work without restrictions, working 40 hours per week “performing such tasks as setting up tables and chairs in conference rooms, performing maintenance work on kitchen equipment, installing new heating/air conditioning units, and carrying out woodworking projects.” He walked with a limp without using a cane, but his ankle was stiff and difficult to bend. He had a permanent numb feeling along his arch and toward the front of the bottom of his foot, and the pain in his left foot was “always there.” In order to manage the pain, plaintiff took extra-strength Aleve and Tylenol, but fusion surgery remained an option.
Outside of work, plaintiff testified that he had trouble carrying out basic maintenance around the house, that using the clutch on the mower hurt his foot, and that he maintained a smaller garden than he did before the accident. His ability to enjoy many recreational activities that he enjoyed before the accident was also affected. Although he still hunted with a bow, he now used a blind instead of walking. He had not bowled “for a few years” since the accident, and participated in fewer tractor-pull events because he did not “feel up to it.” He could no longer enjoy walking or riding a bike as he had before the accident because he walked enough at work, and pushing the pedals on his bike hurt his foot. Finally, he could no longer help his brothers on their farms as he did before and could only drive the tractor “for a little bit,” could no longer march with Vietnam veterans in parades.
Plaintiff’s treating physician imposed no restrictions on plaintiff’s home or recreational activities as of July 2, 2007. However, the plaintiff subsequently “began to develop a flat foot deformity in that the heal bone could not interact with the ‘posterior tibial tendon’ to give arch to the foot,” as well as a “valgus deformity,” which prevented his heal bone from moving and interacting with other tendons. Plaintiff also began to develop early arthritis caused by the dissolution of cartilage, which has a high probability of becoming severe arthritis.
Based on the foregoing, the plaintiff brought suit against the driver and owner of the other vehicle alleging that he had sustained a serious impairment of a bodily function as a result of the accident. The defendant then moved for summary disposition arguing that the plaintiff had not suffered a threshold injury under Kreiner. At that time, however, the McCormick case was pending in the Michigan Supreme Court, so the plaintiff asked the trial court to stay the matter pending the outcome of the McCormick’s decision. The trial court agreed to wait for up to 45 days, and this time period expired without McCormick being decided. The trial court went on to grant summary disposition in favor of the defendant under the Kreiner standard, concluding that although the plaintiff did suffer an objectively manifested impairment of an important body function, he did not meet the threshold requirement under Kreiner .
The plaintiff then appealed, and the McCormick case was decided shortly thereafter – overruling Kreiner and setting forth a relative new standard for determining threshold claims. Since the trial court applied the Kreiner standard in determining plaintiff’s claims, the Court of Appeals vacated the trial court’s grant of summary disposition and remanded the claim for a redetermination under the new McCormick standard. In this regard the court held:
"McCormick overruled the Kreiner Court’s interpretation of MCL 500.3135. The trial court’s decision was based on case law that has been overruled. For that reason, we vacate the trial court’s order granting summary disposition in favor of defendants and remand this case to the trial court for further proceedings in light of McCormick."
