U.S. District Court for the E. Dist. of Michigan; Case No. 08-CV-12715; Unpublished
Judge Paul D Borman, U.S. 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)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
TOPICAL INDEXING:
Not Applicable
In this Opinion and Order by Judge Borman regarding plaintiff’s threshold claims for non-economic loss, the Court denied defendant’s motion for summary disposition -- wherein Defendant argued that Plaintiff’s alleged injuries did not affect her general ability to lead her normal life -- because the Court concluded that the documentary evidence viewed in a light most favorable to plaintiff was “sufficient to proceed to trial” under the new McCormick v Carrier standard, noting that “a comparison of [Plaintiff's] pre-collision medical records with many of her post-collision medical records reveals little post-collision change in condition or lifestyle.”
On June 1, 2007, plaintiff was involved in an auto-accident wherein her vehicle was “sideswiped” by the trailer of defendant’s truck while she and the defendant were simultaneously attempting to make left-hand turns in adjacent lanes of traffic, at which time defendant’s trailer crossed over into plaintiff’s lane. Plaintiff brought suit against defendant seeking to recover non-economic damages pursuant to MCL 500.3135(1) and (7), alleging that she suffered accident-related injuries which constituted a serious impairment a body function. The Court noted that plaintiff’s medical records and deposition testimony evidenced:
“ . . . multiple pre-and post-accident continuing injuries including pain in knees, back and ankle, and similar evidence of no pre-accident exercise and little participation in leisure time activities, at this stage of the proceedings, including Plaintiffs' deposition testimony denying preexisting medical conditions, albeit contradicted in large part by medical records testimony, but also alleged closed-head injuries.”
The defendant moved for summary disposition on the issue of serious impairment arguing that plaintiff’s “pre- and post-collision lifestyles are similar such that McGuire cannot show that the collision affected her ‘general ability to lead . . . her normal life’" under the Kreiner v Fischer standard. However, the Court noted that subsequently, the Supreme Court overruled Kreiner in McCormick v Carrier and set forth a new standard for determining threshold claims. The Court therefore went on to apply the McCormick standard in deciding this case.
After applying the McCormick standard, the Court concluded that “at this stage of the proceedings where the Court must consider the evidence in the light most favorable to the McGuires, the non-moving parties, that based on Mrs. McGuire's evidence, she has set forth facts supporting a claim that her post-accident lifestyle has been impacted with regard to her general ability to conduct the course of her life.” In reaching this conclusion, the Court reasoned:
"McGuire testified as follows regarding the post-accident changes to her lifestyle: (1) she can no longer do housework, whereas before the accident she could; (2) she can no longer bowl (although she has not tried), whereas before the accident she bowled about once every month; (3) she can no longer sew, whereas before the accident she sewed once every month or every other month; (4) she can no longer go dancing, whereas before the accident she would go dancing once or twice per month; (5) she can no longer play with her grandchild in the same way as she could before the accident; and (6) she can no longer attend out-of-town family reunions. According to McGuire, the accident did not affect her ability to read.
Before the accident, McGuire testified that she bowled, sewed, danced, and participated in family reunions on an infrequent basis. Thus, her purported inability to participate in these four activities after the accident does not affect her general ability to conduct the course of her normal life. Defendants assert that "[m]ost of [McGuire's] alleged inabilities post-accident are not 'serious impairments' but mere hobbies in which she rarely engaged in prior to the accident, and some of which she hasn't even tried to engage in since the accident.
. . . McGuire has an extensive history of pre-collision medical issues, including right knee and back problems, among other problems, dating back to 1992 and continuing through 2006. She complained of right lower extremity pain in 1992. She fell from a stepladder in 1995 and landed on her right knee, causing extensive right knee and ankle injuries. The pain from this accident continued into 1996. In 1998, McGuire strained her right lower leg. In 1999, she fell rollerskating, requiring ankle surgery. In June 2000, McGuire complained of right knee pain when walking, bending, and stair climbing. An examination and x-rays revealed extensive medical issues with her right knee at that time. In February 2000, McGuire complained to her doctor that "because of [right knee] pain, she [could not] do her housework as effectively." McGuire again complained of right knee pain on February 2005, after a fall. Moreover, a year before the collision, in January 2006, McGuire complained during her weight management program orientation of knee, back, and ankle pain. She also reported at that time that she "is Not Very Active during leisure time" and reported "NO participation in leisure time activities.
In sum, taking the evidence in the light most favorable to the non-moving party, while a comparison of McGuire's pre-collision medical records with many of her post-collision medical records reveals little post-collision change in condition or lifestyle, this is sufficient to proceed to trial."
Thererfore, based on the foregoing evidence, the Court denied defendant’s motion for summary disposition.
