Michigan Court of Appeals; Docket No. 295430;Unpublished
Judges Saad, and K. F. Kelly, and Donofrio; 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)]
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [§3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(2)]
TOPICAL INDEXING:
Not Applicable
In this unpublished unanimous per curiam opinion regarding plaintiff’s threshold claims for non-economic loss, the Court of Appeals vacated the trial court’s grant of summary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 defendant’s favor on the threshold issue and remanded for further proceedings because the trial court ruled in defendant’s favor based on the threshold standards set forth in Kreiner v Fischer, which the Supreme Court overruled in McCormick v Carrier and “established a new standard for evaluating third-party claims under MCL 500.3135(1) and (7)."
The plaintiff in this case was injured after his vehicle was struck by defendant’s vehicle while in an intersection. As a result of the accident, plaintiff suffered injuries which the Court described as “a fracture of the third metacarpal of his dominant, left hand, with significant shortening of the middle finger, and separation of the fracture fragments.” As a result of the foregoing injuries, plaintiff required “out-patient surgery the following day, and had three screws placed in his hand. Plaintiff wore a splint and underwent eight weeks of physical therapy.” Plaintiff filed this action, alleging that defendant’s negligence in operating a motor vehicle caused him to suffer the foregoing injuries which constituted a “serious impairment of body function pursuant to MCL 500.3135(1) and (7).” Defendant later moved for summary disposition on the issue of whether plaintiff’s injuries met the “no-fault threshold under Kreiner v Fischer.” Finding that “the injury did not impact Plaintiff’s ability to lead his normal life,” the trial court granted defendant’s motion. This appeal then followed.
In reviewing this case on appeal, the Court noted that the trial court correctly cited Kreiner “as then-applicable precedent .” However, “in the interim,” the Supreme Court released its decision in McCormick v Fischer, which overruled Kreiner and “supplanted” its threshold analysis with a new standard. Accordingly, the Court found that “the trial court’s analysis is flawed and the threshold issue must be visited.”
Expounding on the distinctions between the new standard established in McCormick and the now-defunct Kreiner standard, the Court of Appeals explained:
“First, “the threshold question whether the person has suffered a serious impairment of body function should be determined by the court as a matter of law as long as there is no factual dispute regarding ‘the nature and extent of the person’s injuries’ that is material to determining whether the threshold standards are met.” McCormick, 487 Mich at 193. Second, if the court decides there is no material factual dispute, it must then consider whether the plaintiff has “(1) an objectively manifested impairment (2) of an important body function that (3) affects the [plaintiff’s] general ability to lead his or her normal life.” Id. at 195. Regarding the third factor, which is at issue in this case, the Court stated, “the common understanding of ‘to affect the person’s ability to lead his or her normal life’ is to have an influence on some of the person’s capacity to live in his or her normal manner of living. By modifying ‘normal life’ with ‘his or her,’ the Legislature indicated that this requires a subjective, person- and fact-specific inquiry that must be decided on a case-by-case basis.” Id. at 202.
The Court added the following:
. . . First, the statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed. 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 his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected.
Second, and relatedly, ‘general’ modifies ‘ability,’ not ‘affect’ or ‘normal life.’ Thus, 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, not that some of the person’s normal manner of living has itself been affected.
* * *
Third, and finally, the statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on ‘the person’s general ability to live his or her normal life.’ [McCormick, 487 Mich at 202-203.]"
After noting these distinctions, the Court further held that McCormick should be applied retroactively to this case. Therefore, the Court vacated the trial court’s order granting summary disposition in defendant’s favor and remanded for further consideration in light of McCormick, noting that “on remand it will be incumbent on the trial court to reassess the factual presentation in accordance with McCormick directives.”
