U.S. District Court for the E. Dist. of Michigan; Case No. 2:10-cv-14406; Unpublished
Judge Lawrence P. Zatkoff, 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)]
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)]
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)]
Permanent Serious Disfigurement Definition [§3135(1)]
Determining Permanent Serious Disfigurement As a Matter of Law [§3135(1)(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this Opinion and Order by Judge Lawrence P. Zatkoff regarding Plaintiff’s threshold claims for non-economic losses, the court granted partial summary disposition in Plaintiff’s favor on the issue of serious impairment and permanent disfigurement because it was “undisputed that Plaintiff suffered serious injuries in the accident, including the eventual amputation of his left arm,” which the court found as a matter of law to constitute “a serious impairment and disfigurement under MCL 500.3135.”
This action arose after the Plaintiff’s vehicle crashed into the right rear of a tractor trailer that was stopped in the center of a turn lane. During the accident, Plaintiff suffered serious injuries which the court described as “including the eventual amputation of his left arm at the shoulder.” Plaintiff originally brought suit in Wayne County seeking in part to recover non-economic damages for Plaintiff’s injuries, alleging that Plaintiff’s injuries constituted a “serious impairment of a body function” and a “permanent serious disfigurement” under MCL 500.3135(1). The case was later removed to federal court on the basis of diversity jurisdiction, where Plaintiff filed the instant motion for partial summary judgment seeking a determination as a matter of law that his injuries constituted met the serious impairment threshold as well as the permanent serious disfigurement threshold. Defendants opposed this motion, arguing that Plaintiff’s injuries did not “rise to the level of either a serious impairment or disfigurement” — further arguing that Plaintiffs lacked sufficient evidence to support either of their threshold claims, and that this motion was “premature because Defendants had not taken sufficient discovery, including deposing the Plaintiff.” However, the court rejected Defendant’s arguments and granted partial summary disposition in Plaintiff’s favor as to both the threshold claims.
In rejecting Defendant’s arguments, the court noted that at the outset, it was “undisputed that Plaintiff suffered serious injuries in the accident, including the eventual amputation of his left arm. Notwithstanding any additional injuries he may have suffered, the court finds that the amputation of Plaintiff’s arm is sufficient evidence for purposes of deciding this motion, and thus the court will not address the nature or extent of any other injuries claimed by Plaintiffs. As such the court finds as a matter of law that the amputation constitutes a serious impairment and disfigurement under Mich. Comp. Laws. § 500.3135.”
In finding in Plaintiff’s favor on the threshold issue of serious impairment, the court applied the relative new standard that the Supreme Court established in McCormick v Carrier, explaining that:
“[W]hether the serious impairment threshold for recovery of non-economic damages has been met by using a three-part analysis: (1) an "objectively manifested impairment" must be observable or perceivable from actual symptoms or conditions; (2) an "important body function" is a body function of value, significance, or consequence to the injured person; and (3) whether it "affects the person's general ability to lead his or her normal life" entails analyzing the plaintiff's capacity to live in his or her normal manner of living. McCormick v. Carrier, 487 Mich. 180,(Mich. 2010).
The court went on to find that all three of the foregoing requirements were met here as a matter of law. In this regard the court reasoned:
First, the amputation is an objectively manifested impairment, since the absence of Plaintiff's arm at the shoulder is unquestionably observable and perceivable. Next, the loss of Plaintiff's arm impairs countless bodily functions of value or consequence. Most significant is Plaintiff's inability to perform essentially any bodily function requiring use of both hands. This hinders his ability to perform even the simplest duties in his role as a pharmacist, such as opening a bottle of medication or operating a computer. Last, it is clear that the amputation affects Plaintiff's general ability to lead a normal life, as again, any normal life function involving the use of two hands would be significantly impaired, if not impossible. Showering, getting dressed, eating, and operating a vehicle are but a few examples of normal life functions that would likely become challenging for an amputee. In short, the Court is remiss to find an injury more devastating to one's ability to perform normal functions than is the loss of a limb. Accordingly, the Court finds that Plaintiff's loss of his left arm constitutes a serious impairment of bodily function.
In finding that the Plaintiff’s injuries constituted a permanent disfigurement as a matter of law the court relied on the case of Fisher v. Blankenship, 286 Mich. App. 54 (2009), explaining that:
A "permanent serious disfigurement," is a long-lasting and significant change that mars or deforms the injured person's appearance. Fisher v. Blankenship, 286 Mich. App. 54, 777 N.W.2d 469, 478 (Mich. Ct. App. 2009). When determining whether an injury meets the disfigurement threshold for tort recovery, the focus must be on the outward appearance of the injury, without the use of devices designed to conceal the disfigurement. See id. at 478-79.
In finding that the foregoing requirements set forth in Fisher were met as a matter of law, the court explained that:
In Fisher, the court found that the loss of a plaintiff's top front teeth, which were removed to facilitate the use of dentures after he lost a single tooth in a collision, constituted a "permanent serious disfigurement" because the loss of teeth marred or deformed the plaintiff's overall appearance. Id. at 479. The Fisher court rejected the defendant's argument that the impairment was not visible when the plaintiff wore the dentures, holding that courts must consider the effect of the disfigurement on the injured person's appearance without the use of devices designed to conceal the disfigurement. Id.
Here, it is beyond dispute that the loss of an arm would constitute a serious disfigurement, especially in light of the Fisher court's finding of disfigurement with respect to the loss of teeth. A missing arm is substantially more serious than missing teeth. A person's missing teeth are visible only when that person's mouth is open, whereas a person's missing arm is always visible. Moreover, unlike missing teeth, which can, to a large extent, be replaced both functionally and aesthetically with dentures, a missing arm is essentially irreplaceable in both respects. Although the parties' briefs did not raise the issue, the Court finds that even if Plaintiff could minimize the appearance of the amputation through prosthesis, the need for the prosthesis would itself be evidence of the severity of the disfigurement. See id. at 480. As such, the Court finds that Plaintiff's amputated left arm mars or deforms his appearance to such an extent as to constitute a permanent serious disfigurement.
Therefore, for the foregoing reasons, the court granted Plaintiff’s partial motion for summary disposition on the issue of serious impairment and on the issue of permanent serious disfigurement.
