Michigan Court of Appeals; Docket No. 210869; Published
Judges Griffin, Owens, and Meter; (with Owens concurring and Meter dissenting in part)
Official Michigan Reporter Citation: 240 Mich App 333; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era – 1996-2010) [§3135(7)]
Determining Serious Impairment of Body Function as a Matter of Law (Kreiner Era – 1996-2010) [§3135(2)]
Determining Permanent Serious Disfigurement as a Matter of Law [§3135(1)(2)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
This published Opinion written by Judge Griffin reversed and remanded a jury trial verdict in favor of defendant finding that plaintiff had not sustained a serious impairment of body function. The plaintiff in this case was a 9-year old boy who sustained a serious leg fracture as a result of a bicycle-automobile collision. The plaintiffs injury was a displaced, comminuted oblique fracture of the right femur requiring open reduction internal and external fixation surgery. The jury, after expressing some confusion regarding threshold instructions, found that plaintiffs injury did not constitute either serious impairment of body function or permanent serious disfigurement.
With regard to plaintiffs claim of serious impairment of body function, the Court of Appeals reversed, holding that the trial judge should never have submitted the question of serious impairment of body function to the jury under section 3135(2)(a) which renders such issues to be questions of law for the court where there is no material factual dispute as to the nature and extent of the injury. With regard to plaintiffs leg fracture, the Court of Appeals ruled:
"We reverse and remand. We hold plaintiff’s femur fracture is a serious impairment of body function as a matter of law. We remand for a new trial on the issue of plaintiff's damages."
In finding that there was no material factual dispute as to nature and extent of the plaintiffs injuries, the Court of Appeals noted that there was no independent medical examination which raised disputed fact questions. The only testimony regarding the nature and extent of plaintiff s injuries came from plaintiff, his parents and his treating physician. The court held that minor discrepancies in the physician's testimony regarding whether plaintiff was under activity restrictions for three months as opposed to seven months did not create a material factual dispute necessitating jury determination. Therefore, the trial court erred in failing to rule as a matter of law on plaintiffs claim of serious impairment of body function. In this regard, the Court of Appeals stated, "Absent an outcome determinative genuine factual dispute, the issue of threshold injury is now a question of law for the court."
In reaching its conclusion that the trial court committed error by failing to find plaintiffs injury a serious impairment of body function as a matter of law, the court made certain statements with regard to the intent of the threshold changes enacted by 199S PA 222. In these statements, the court indicated that the 199S legislation is a codification of the Supreme Court's earlier decision in Cassidy v McGovern. In this regard, the court made the comments:
"By enacting 1995 PA 222, the Legislature amended our no-fault automobile insurance act in a number of important respects. Pertinent to this appeal, the Legislature overturned the Supreme Court's DiFranco decision by codifying the tort threshold injury standards of Cassidy v McGovern [citation omitted], overruled by DiFranco, supra. One of the major changes of the legislation was to make the determination of threshold injury (serious impairment of body function or permanent serious disfigurement) an issue of law rather than an issue of fact.... In determining whether the impairment of the important body function is 'serious' the court should consider the following non-exhaustive list of factors: the extent of the injury, treatment required, duration of disability, and extent of residual impairment and prognosis for eventual recovery. Hermann v Haney, 98 Mich App 445,449 (1980), affirmed 415 Mich 483 (1982).
Finally, although the injury threshold is a significant obstacle to tort recovery, Cassidy, supra at 503, 'an injury need not be permanent to be serious' Id., supra at 505.... Because the Legislature has returned to the standards of Cassidy, we find Cassidy and its progeny instructive for the present case. In particular, we follow and adopt the analysis of Cassidy era cases set forth in Burkv Warren (After Remand), 137 Mich App 715 (1984). In Cassidy, itself, the Supreme Court held plaintiff Cassidy's injuries were a serious impairment of body function as a matter of law. Cassidy's injuries were 'complete breaks of both bones in his lower right leg for which he was hospitalized for eighteen days and wore casts for seven months.'... Five months after the Cassidy decision, this court in LaHousse v Hesse, 125 Mich App 14 (1983) addressed injuries substantially similar to those of the present plaintiff. In LaHousse, the plaintiff sustained a broken clavicle and a fracture of her left femur, the latter injury requiring surgery to insert a steel rod. Applying Cassidy, supra, our court ruled the plaintiff's femur fracture was a serious impairment of body function as a matter of law..,. The present case similarly involves a serious femur fracture and plaintiff's inability to walk for three months. Walking is an important body function. Although plaintiff realized a good recovery, 'an injury need not be permanent to be serious.' Cassidy, supra at 505. In light of the seriousness of the initial injury, the treatment required and duration of disability, we hold that plaintiff sustained a serious impairment of body function."
The comments made by this panel of the Court of Appeals regarding the Legislature's intent to "codify Cassidy" may be dicta and may also conflict with the philosophy of another panel of the Court of Appeals in the earlier case of May v Sommerfield which specifically cited the Supreme Court's decision in DiFranco v Pickard regarding the intent of the new threshold provisions.
In its decision, the Court of Appeals also took issue with the jury instructions given by the trial court which apparently contained instructions set forth in SJI2d 36.01 and SJI2d 36.11. The court objected to language in those instructions which states, "The terms serious, impairment and body function have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage." In criticizing these jury instructions, the Court of Appeals in the instant case stated, "Contrary to the Standard Jury Instructions, the term 'important body function' has special meaning in the law. An important body function is a function of the body that affects the person's general ability to live a normal life."
With regard to plaintiffs claim that his surgical scarring constituted permanent serious disfigurement, the Court of Appeals remanded the case to the trial court because the trial court had failed to make a ruling as to whether there was a "genuine outcome determinative factual dispute on this issue and, if not, whether plaintiff's scarring constituted permanent serious disfigurement as a matter of law." If on remand the trial court finds the injury constitutes permanent serious disfigurement, the Court of Appeals instructed the trial judge to conduct a trial on the issue of damages. In remanding the disfigurement claim, the court made some important statements regarding the use of photographic and documentary evidence in disfigurement cases. In this regard, the court stated:
"Under 1995 PA 222, the determination whether disfigurement constitutes 'permanent serious disfigurement' is a question of law absent a genuine outcome-determinative factual dispute. However, the trial court refused to rule, as a matter of law, deferring its decision to the jury. Unfortunately, the record is inadequate to facilitate our de novo review. In this case, plaintiff's four surgical scars were depicted in a jury view and described in detail. However, no photographs or video or plaintiff's disfigurement are contained in the lower court record. Accordingly, we find it necessary to remand to the trial court for a ruling. If the court finds permanent serious disfigurement, trial should be held on the issue of damages. If the trial court rules against plaintiff, further relief will be considered by this Court only if plaintiff makes an offer of proof in the lower court with photographic or other documentary evidence sufficient to support plaintiff's claim on appeal."
