Michigan Court of Appeals; Docket Nos. 292190 and 292740;Unpublished
Judges Cavanagh, Stephens and Ronayne Krause; 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)]
General Ability / Normal Life 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(2)]
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In this unpublished unanimous per curiam Opinion regarding Plaintiff’s threshold claims for non-economic loss, the Court of Appeals affirmed the trial court’s grant of partial summary disposition in Plaintiff’s favor on the issue of whether Plaintiff suffered a serious impairment of a body function, because given the severity of the Plaintiff’s injuries, “the trial court correctly held that Plaintiff is entitled to summary disposition as a matter of law.”
Plaintiff in this case was an EMT who was riding as a passenger in an ambulance, which his partner illegally drove through a stop sign without activating its flashing lights while the two were transporting a patient. The ambulance was then broadsided by a garbage truck as it proceeded through the intersection, causing Plaintiff to suffered severe injuries which the court described as “two broken legs, two busted up knees, numerous broken ribs, multiple bruises, a collapsed lung, a lacerated spleen, an ankle fracture, internal bleeding and bruising to several internal organs (such as a kidney and a bladder), post-traumatic stress, a degloving injury to his left calf.” (internal quotations omitted) Consequently, Plaintiff’s spleen had to be removed, which the court noted “is not an organ that can be replaced or regenerated,” and his “right ankle required surgeries to put screws in it and to realign it and his ACL was torn in his right leg and damaged in his left leg.” The Plaintiff further testified that he has a permanent surgical scar “running from his sternum to the top of his pubic bone.”
Following the accident, Plaintiff brought suit, alleging that he “suffered a threshold injury for no-fault purposes” and later moved for partial summary disposition, arguing that his injuries met the no-fault threshold as a matter of law. The trial court granted Plaintiff’s motion, and this appeal followed.
On appeal, the Court of Appeals affirmed the trial court’s grant of partial summary disposition in Plaintiff’s favor. In reaching this result, the court considered whether Plaintiff’s injuries constituted a serious impairment of an important body function under the new McCormick standard, explaining that:
"A 'serious impairment of a body function' means 'an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life.' MCL 500.3135(7). The impairment must be objectively manifested, must affect an important body function, and must affect the plaintiff's ability to lead her normal life. MCL 500.3135(7). If there is no material factual dispute regarding the nature and extent of the plaintiff's injuries, the court decides as a matter of law whether the plaintiff's injury meets the threshold. MCL 500.3135(2).
The plaintiff's impairment need not affect his or her entire life. McCormick v Carrier, 487 Mich 180, 201-203(2010). As used in MCL 500.3135(7), the word 'general' modifies the word ability, not the word life. Id. at 195-196. The 'nonexhaustive list of objective factors' discussed in the earlier case of Kreiner v Fischer, 471 Mich 109(2004), is incorrect because it has no corresponding language in the text of the statute. McCormick, 487 Mich at 207-209. In McCormick, the plaintiff's ankle was broken when a coworker backed a truck over it, and although he eventually returned to work, he was unable to perform his prior duties and eventually volunteered for a different position, which he was able to perform." Id. at 184-186.
Applying these principles to the present matter, the court went on to find that the trial court correctly concluded as a matter of law that Plaintiff “suffered a threshold injury for no-fault purposes.” In this regard, the court reasoned:
"Plaintiff here suffered much more extensive injuries. He suffered two broken legs, two "busted-up" knees, numerous broken ribs, multiple bruises, a collapsed lung, a lacerated spleen, an ankle fracture, internal bleeding and bruising to several internal organs (such as a kidney and the bladder), post-traumatic stress, and a degloving injury to his left calf. In fact, plaintiff's spleen had to be removed, and it is not an organ that can be replaced or regenerated. Plaintiff's right ankle required surgeries to put screws in it and to realign it, and his ACL was torn in his right leg and damaged in his left leg. Plaintiff testified that he has a permanent surgical scar, running from his sternum to the top of the pubic bone.
Even leaving aside the other injuries, plaintiff's loss of his spleen, alone, establishes a serious impairment, because "plaintiff is still missing a portion of his body that he will never retrieve." Caiger v Oakley, 285 Mich App 389, 395(2009). Furthermore, an infectious disease expert testified that, because of the removal of plaintiff's spleen, plaintiff should no longer work as an EMT, because he would have a very high risk of contracting an infection that would likely be fatal. The spleen is an important component of the immune system, and the immune system is certainly an "important body function." Losing a significant part of one's immune system clearly affects the "general ability" for a person exposed to potential diseases to lead a normal life.
Additionally, plaintiff spent three weeks in a hospital after the accident. After that, he was bound to a wheelchair for three more months. Plaintiff was unable to work at any of his three jobs for about seven months, when he returned to his pastoral work. Plaintiff returned to being an EMT two or three months after that, and returned to firefighting about a year and a half after the accident. Plaintiff testified that his EMT and firefighting work causes him pain, and furthermore, his persistence in working those jobs is contrary to the wishes of his doctors. Plaintiff's physical medicine and rehabilitation expert testified that "There's almost nothing that he does that I would like him doing" and opined that, to a reasonable degree of medical certainty, in five years, plaintiff will no longer be physically able to work as a firefighter, and in ten years, will no longer be physically able to work as an EMT. Plaintiff's vocational rehabilitation expert concluded that plaintiff was actually working beyond his capability because he wanted to take care of his family as opposed to himself."
Finally, the court further noted that Plaintiff’s injuries in this case “were more severe and more impairing than McCormick's.” Therefore, “plaintiff, like McCormick, . . . was entitled to summary disposition as a matter of law.”
