Michigan Court of Appeals; Docket #307880; Unpublished
Judges Borrello, Fitzgerald, and Owens; 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)]
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)]
TOPICAL INDEXING:
Not applicable
In this unanimous unpublished per curiam Opinion regarding plaintiff’s threshold claims for non-economic loss, the Court of Appeals reversed the trial court’s entry of summary judgment in favor of defendant and found that plaintiff was entitled to present her claim of serious impairment of body function to the trier of fact for resolution. This is the second time this case has come before the Court of Appeals. Previously, another panel remanded the first case to the trial court to be decided under the new standards articulated in McCormick v Carrier, rather than the old threshold standards under Kreiner v Fischer.
The plaintiff in this case suffered two fractures to her right wrist. It was subsequently determined that these fractures required surgery, wherein “a bone fragment was removed and chondral fraying was debrided.” Approximately one year later, plaintiff’s doctor reported that she had achieved maximum healing and that she “was at risk for permanent pain.” Plaintiff testified that for the year following surgery “she was unable to work and that her mother provided care for her, including grooming and cleaning.” Plaintiff also testified that her “job prospects were diminished” during her recuperation. However, plaintiff testified that approximately a year and a half after her accident she joined the National Guard with respect to which the Court noted she completed “some seven months of physical training, exercise, and other activities such as firearms’ training. Plaintiff did not see a physician for her wrist during her National Guard training. Plaintiff reported that she is currently not under any medical restrictions and is employed caring for a disabled child.”
In analyzing the threshold issue, the Court of Appeals noted that there was no dispute that plaintiff’s broken wrist was “an objectively manifested impairment of an important body function.” The only dispute was whether plaintiff’s injury affected her general ability to lead her normal life. In that regard, the Court concluded that the trial court had not properly applied the new McCormick standards, which focus the inquiry on whether an injury and impairment has had “an influence on some of the person’s capacity to live in his or her normal manner of living. . . . Accordingly, to be eligible for a tort remedy, only a plaintiff’s ability to live their normal life need be affected by the injury. [T]here is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected. . . . because the Legislature included the words ‘permanent disfigurement’ in the act, it should be assumed to have intentionally omitted any time requirement from the definition of a ‘serious impairment of body function.’ Thus, under McCormick, a plaintiff’s injury is a ‘serious impairment of body function’ if some of the plaintiff’s ability to live his or her normal life is affected, without regard to the duration of the effect or to the amount of the affect in relation to the plaintiff’s whole ability to life [sic] his or her life.” In applying these McCormick standards to the case at bar, the Court concluded that the trial judge incorrectly granted summary disposition in favor of defendant because there was sufficient dispute regarding the “duration of the affect of plaintiff’s injuries” entitling plaintiff to “present her tort claim to the trier of fact in this case.” In this regard, the Court stated:
“Our review of the record evidence presented to date leads us to conclude that plaintiff has demonstrated that her ‘pre-incident manner of living was affected’ by her injury. Plaintiff was unable to do many normal things while in her cast, and her mother nursed plaintiff during the recoveries from plaintiff’s two surgeries. Plaintiff missed work and presented unrefuted testimony that her ability to groom her hair and use the computer was affected by her injury."
Accordingly, the trial court was reversed and the matter remanded for determination as of question of fact.
