Michigan Court of Appeals; Docket No. 109570; Published
Judges Reilly, Cynar, and T.M. Burns; Unanimous; Per Curiam
Official Michigan Reporter Citation: 184 Mich App 517; Link to Opinion 
STATUTORY INDEXING:
Trial Procedure Issues [§3135]
TOPICAL INDEXING:
Collateral Estoppel and Res Judicata
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals upheld summary disposition in favor of the defendant on the grounds that a previous lawsuit concerning the same injury had been dismissed on the ground that plaintiff’s injury did not constitute a serious impairment of body function.
Plaintiff sustained an injury to the middle finger of her right hand in a 1983 automobile accident. Treatment of the injury was unsuccessful, resulting in surgery in 1984, diagnosis of traumatic arthritis in 1985, and additional surgery at that time to remove the joint and replace it with a plastic finger joint prosthesis. Additional surgery was performed in 1986.
Plaintiff’s original lawsuit filed in September 1983, was dismissed in March 1985 (before diagnosis of traumatic arthritis) on the ground that she had not suffered a serious impairment of body function. This decision was affirmed on appeal subsequent to the plaintiff’s last surgery.
Plaintiff’s second lawsuit alleged that the "serious impairment" arose in 1985 when she had her joint replaced with the prosthesis.
In affirming dismissal of her second claim, the Court of Appeals held that the same issue had been decided in Sherrell v Bugaski, 169 Mich App 10 (1988), where, subsequent to dismissal on the serious impairment issue, plaintiff discovered that she had a herniated disc. In agreeing with the panel in Sherrell, supra, which held that the doctrine of res judicata applied even though the facts of plaintiff's damages have changed, the Court of Appeals ruled that to hold otherwise would allow a plaintiff to file a succession of actions based upon the same injury. While a plaintiff may not be barred from instituting a subsequent action under §3135 based upon a different injury arising from the same accident, here. Plaintiff’s second action was based on the same injury on which the first action was based. Therefore, summary disposition was appropriate.
