Michigan Court of Appeals; Docket No. 308785; Unanimous
Judges Servitto, Markey, and Murray; 2-1; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Dissent
The Michigan Supreme Court DENIED Leave to Appeal on 4/1/2014; Link to Order
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)]
Mental Anguish PTSD Claims [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam opinion authored by Judge Murray regarding Plaintiff’s claims for non-economic loss (with Judge Servitto concurring in result only and with Judge Markey dissenting), the court of appeals held that the plaintiff's post traumatic stress disorder did not meet the threshold-injury requirements because the evidence did not establish that the plaintiff suffered a serious impairment of a body function as a result of her PTSD.
The plaintiff in this case witnessed her husband get fatally struck by the defendant's vehicle. At the time of the accident, the plaintiff was traveling on US 131, and her husband was following immediately behind her in a separate vehicle. After witnessing the initial impact, the plaintiff stopped her vehicle and attempted to render aid to her husband, who was trapped under his vehicle and unconscious. The plaintiff then stood by him while unsuccessful attempts were made to revive him—both at the scene and at the hospital. Approximately six months later, the plaintiff was diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder.
Medical testimony was given that as a result of her PTSD, the plaintiff suffered from "physical ailments or symptoms as a result of PTSD, including: sleep deprivation, flashbacks and nightmares, heightened anxiety, loss of appetite, being easily startled, and decreased activity." Medical testimony also stated that plaintiff exhibited physical manifestations resulting from PTSD, “including: crying, trembling, and being startled, feeling physically exhausted."
The plaintiff further testified that she suffered from “mental injuries” resulting from the automobile accident, “including: memory loss, an inability to focus, lack of concentration skills, being easily startled, and impatience.” Consistent with this, medical testimony established that the plaintiff experienced "severe mental disturbance and has psychiatric problems that interfere with her daily life, including: loss of sleep, phobia, anxiety, isolation, hyperarousal, avoidance, flashbacks, disattachment, and loss of concentration.” Lay witnesses also observed many “emotional and behavioral changes in plaintiff” and testified that “since the accident, the “plaintiff is mundane, numb, anxious, apathetic, worried, very irritable, sad, lonely, has mood swings, sometimes behaves impulsively or overacts, and is not emotionally supportive towards other family members.” The Plaintiff did not miss any work, and no restrictions were placed on her by her doctors.
The foregoing facts were accepted as true for purposes of this proceeding, and the Court considered whether the plaintiff suffered a threshold injury as a matter of law. Based on the foregoing evidence, the court held that the plaintiff could not satisfy any of the three elements necessary to establish a threshold injury under the McCormick standard.
The court first held that the plaintiff's injuries did not affect a particular body function and held that the plaintiff therefore could not establish that she suffered an objectively manifested injury. In this regard, the court reasoned that:
"The evidence presented by plaintiff does not establish an objectively manifested impairment because plaintiff failed to show how her PTSD has affected a particular body function. The record merely highlights plaintiff’s emotional or behavioral changes since the automobile accident. While there is no dispute over plaintiff’s diagnosis of PTSD, this diagnosis alone—without supporting evidence to establish that the PTSD affected a particular body function—fails to create a genuine issue of material fact regarding whether plaintiff has an objectively manifested impairment."
The court then held that "even if we were to conclude that plaintiff established an objectively manifested impairment, plaintiff could still not overcome the no-fault threshold because plaintiff failed to show an objectively manifested impairment of an important body function." The court explained:
"There was no evidence that plaintiff’s body suffered the impairment of an important body function. Plaintiff testified that she suffered from “mental injuries” and she never suggested that these mental infirmities caused her the impairment of an important body function. Similarly, Nicholas testified that plaintiff had emotional or behavioral changes since the accident, but she did not present evidence showing the impairment of an important body function. Consequently, there is no evidence that plaintiff suffered from an objectively manifested impairment of an important body function."
Finally, the court held that there was no evidence that plaintiff’s injuries affected her general ability to lead her normal life. The court reasoned that no restrictions were placed on plaintiff's ability to drive work, nor where there any other restrictions placed on her. The court further noted that "In fact, [medical testimony stated that] part-time work may be beneficial to plaintiff. Plaintiff chose not to take the medication prescribed to her to help her PTSD, continues to read and comprehend various books, can organize and communicate her thoughts and feelings to other people, can agree to social plans, keeps her doctors’ appointments, and does not require assistance in her daily household chores or in handling her finances."
Judge Markey dissented and would hold that the Plaintiff's injuries did meet the threshold. In this regard, Judge Markey concluded that "Judge Murray’s analysis, despite the proper recitation of the standard of review, in fact, goes to great, unwarranted length to justify finding no genuine issue of material fact as to the existence of body impairment." In this regard, Judge Markey noted that:
"The overwhelming testimony in this case is that Frances Overweg’s life changed dramatically because she suffered from PTSD. At all times relevant to our review, she behaved, she functioned, she thought very differently from the way she did before the car accident that killed her husband. Was her skull fractured? No. Was she knocked unconscious for some appreciable period of time? No. Are there MRI (magnetic resonance imaging), PET (positron emission tomography) or CT (computerized axial tomography) scans that show brain damage? No. Does she function differently in nearly every way than she did before the car accident? Yes. Was there overwhelming medical and lay testimony that she exhibited the well-known characteristics of PTSD? Yes. I believe that reviewing the evidence in this manner is the proper, wider perspective appropriate to motions for summary disposition."
