U.S. District Court for the Eastern District of Michigan; Case No. 08-11175; Unpublished
Judge John Corbett O’Meara, United States District Judge; Opinion and Order
Official Federal Reporter Citation: Not Applicable; Link to Opinion: N/A
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)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this Opinion and Order by Judge O’Meara regarding plaintiff’s threshold claims for non-economic losses, the Court denied defendant’s motion for summary disposition on the threshold issue of serious impairment because the Court concluded there existed a genuine issue of material fact regarding whether the plaintiff’s alleged injuries resulted in a serious impairment of a body function under the relative new standard established in McCormick v Fisher, which overruled the previously controlling standard set forth in Kreiner v Fischer.
In this case, Plaintiff Toma Juncaj collided with a truck owned by Defendant Cevera Transport while plaintiff was attempting to make a left turn. Following the accident, plaintiff brought suit against Defendant Cevera, alleging that as a result of the accident, he suffered “a closed-head injury, posttraumatic stress disorder, dizziness and balance problems, a pulmonary contusion, right rib fractures, C5-C7 radiculapathy, a pinched nerve at C5, muscle spasms, neck pain, back pain, shoulder pain, and a right rotator cuff tear [requiring] surgery,” which injuries resulted in “serious impairment of a body functions.”
The defendant filed this motion for summary disposition contending that plaintiff’s injuries did not, as a matter of law, constitute a serious impairment of a body function under MCL 500.3135(1) and (7). The Court disagreed and denied defendant’s motion finding that a reasonable jury could conclude that plaintiff has suffered a threshold injury under the requirements set forth in MCL 500.3135(7).
In reaching this result, the Court noted that “MCL 500.3135(7) creates a three-prong test for serious impairment of body function and defines it as ‘[1] an objectively manifested impairment of [2] an important body function that [3] affects the person's general ability to lead his or her normal life.’” The Court then noted that the Supreme Court decision of McCormick v. Carrier, 487 Mich. 180 (2010) “is the controlling case law interpreting MCL 500.3135,” which overruled the previously controlling case of Kreiner v. Fischer, 471 Mich. 109 (2004). In this regard, the Court further explained the relevant new McCormick standard:
"First, an objectively manifested impairment is considered an impairment which is observable or perceivable from actual symptoms or conditions. [McCormick, supra]. Thus, "the proper inquiry is whether the impairment is objectively manifested, not the injury or its symptoms." [McCormick, supra]. An impairment is distinguished from an injury—a wound or other specific damage—as it is a state of being weakened, diminished, or damaged. [McCormick, supra]. The McCormick court concluded that "when considering an 'impairment,' the focus 'is not on the injuries themselves, but how the injuries affected a particular body function.'" [McCormick, supra] (citing Di Franco v. Pickard, 427 Mich. 32, 67, 398 N.W.2d 896(1986)). To the extent that Kreiner could be read to always require medical documentation, it was overruled.
Second, an important body function is one "marked by or having great value, significance, or consequence." [McCormick, supra]. It is an inherently subjective inquiry, as a body function may have more significance or value to one person than another. An important body function does not refer to any body function but also does not refer to the entire body function. [McCormick, supra] (citing Cassidy v. McGovern).
Third, an impairment which affects the person's general ability to lead his or her normal life is one which "[has] an influence on some of the person's capacity to live in his or her normal manner of living." [McCormick, supra].. The court found that the statute requires merely "that a person's general ability to lead his or her normal life has been affected, not destroyed" and "that some of the person's ability to live in his or her normal manner of living has been affected, not that some of the person's normal manner of living has itself been affected." [McCormick, supra]. The court maintained that "there is no quantitative minimum as to the percentage of a person's normal manner of living that must be affected." [McCormick, supra].
The interpretation of this third prong is one of the most notable changes from the prior ruling law in Kreiner. The Kreiner majority had found that "the effect of the impairment on the course of a plaintiff's entire normal life must be considered," and if "the course or trajectory of the plaintiff's normal life has not been affected, then the plaintiff's 'general ability' to lead his normal life has not been affected." [McCormick, supra] (citing Kreiner, 471 Mich. at 131). Thus, the Kreiner standard presented a higher bar for plaintiffs to overcome. The change in law impacts a motion for summary judgment as well. A factual dispute which might have been found immaterial to satisfying the third prong's high bar may become material under this less rigorous standard."
After applying the new McCormick standard to this case, the Court found that a reasonable jury could conclude that the plaintiff meets the three requirements set forth in § 3135(7). Regarding the first requirement, “objective manifested impairment,” the Court found that sufficient evidence existed to support a finding that plaintiff meets this requirement. In this regard, the court explained:
"Regarding plaintiff Juncaj's alleged traumatic brain injury ("TBI"), MCL 500.3135(2)(a)(ii) applies. Gerald Shiener, M.D., has testified that he regularly diagnoses and treats TBI patients and that, in his opinion, Plaintiff has suffered a serious neurologic injury. In addition, Holly Lorigan, D.O., Plaintiff's treating neurologist, testified that she regularly diagnoses and treats TBI patients and that, in her opinion, Plaintiff has suffered a serious neurologic injury. Given that two physicians who regularly diagnose or treat closed-head injuries have testified that there may be a serious neurological injury, under MCL 500.3135(2)(a)(ii), a question of fact for the jury has been created. . . .
The remaining injuries include a pulmonary contusion, right rib fractures, dizziness and balance problems, C5-C7 radiculapathy, a pinched nerve at C5, muscle spasms, low back pain, and a right rotator cuff tear for which Plaintiff has undergone surgery.
The nature and extent of other injuries are disputed. Plaintiffs claim in their initial response brief that Mr. Juncaj was admitted to the hospital "with a diagnosis" of "pulmonary contusion (lung bruise), right rib fractures and possible liver contusion." However, Defendant reports that after substantial testing, the final report from that hospital visit ruled out these injuries. Dr. Goitz, who performed surgery on Plaintiff's shoulder, documented that the Plaintiff had no complaints and felt "good" just three months after the surgery. He concluded that Plaintiff "achieved all the goals of therapy and rehabilitation including good range of motion and strength." However, in his affidavits, Mr. Juncaj claims that his shoulder injury prevents him from lifting anything over ten pounds and prevented his return to work and usual leisure activities. Mr. Juncaj claims he drives rarely and gets dizzy when going around curves. Defendants have submitted evidence of Mr. Juncaj driving on curved roads in Detroit. The extent of the impairments is [sic] vigorously disputed."
As for the second requirement, “important body function,” the Court found that “plaintiff's alleged injuries could lead a reasonable jury to conclude that there has been an impairment to an important body function. Mental health, as well as use of the arm, neck, and back, is important to daily living.”
Finally, with regard to the third requirement, “effect on the general ability to lead his or her normal life,” the Court found that “[u]nder a given interpretation of the facts, it would be possible for the jury to conclude that a serious impairment affected Plaintiff's general ability to lead his normal life.” In this regard, the Court reasoned:
"Plaintiff claims that his mental and physical condition has forced him to retire from his auto manufacturing job at Chrysler, that he has been unable to work around the house, and that he is unable to work on family vehicles. He claims all of these activities were central to his life prior to the accident. Should the jury weigh the evidence in favor of the Plaintiff, it could reasonably conclude that such impairments of important body functions have influenced Plaintiff's capacity to live in his normal, pre-incident manner of living. This would be similar to the McCormick court finding in favor of the plaintiff whose injury led to an inability to bear weight on his ankle, leaving him unable to perform the functions necessary for his job for at least fourteen months and also impacting his leisure activities."
Therefore, because a reasonable jury could conclude that plaintiff has met the requirements set forth in MCL 500.3135(7), the Court denied defendant’s motion for summary disposition on the issue of serious impairment.
