Michigan Court of Appeals; Docket Nos. 109447 and 111578; Published
Judges Michael Kelly, Holbrook, and Shepherd; Unanimous; Per Curiam
Official Michigan Reporter Citation: 187 Mich App 393; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (DiFranco Era – 1987-1995) [§3135(1)]
Determining Serious Impairment of Body Function As a Matter Of Law (DiFranco Era – 1987-1995) [§3135(1)]
General / Miscellaneous [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals dealt with several issues arising out of the trial of a residua] bodily injury tort claim. The court ruled as follows:
1. The court held that the plain language of §3135(2) does not abolish tort liability for economic losses arising out of an out-of-state accident even though both plaintiff and defendant are Michigan residents and plaintiff’s injury arises out of the operation of a vehicle registered and insured with a no-fault policy issued in Michigan. Section 3135(2) specifically states that it is only tort liability arising from an accident "within this state" that is abolished. Therefore, plaintiff passenger was entitled to collect all economic loss damages from defendant Michigan driver. However, in light of the Supreme Court's decision in Auto Club v Hill (Item No. 1171), the passenger's right to recover non-economic damages is limited by the serious impairment of body function/permanent serious disfigurement threshold requirement of §3135(1) of the Act. In Auto Club, the Supreme Court held that the threshold defense was available to an uninsured motorist even though there was no immunity for economic loss. Thus, the Supreme Court reads §3135(1) as completely separate from § 135(2), with the former being applicable to all suits for non-economic loss arising from the ownership, maintenance, or use of a motor vehicle. Section 3135(1), however, contains no limitation that the injury must arise out of the use of a motor vehicle within this state. Thus, the threshold is applicable to out-of-state injury. With regard to this aspect of the holding, the court stated, "Application of §3135(1) of Michigan's no-fault statute to plaintiff’s claim is not unreasonable. Both plaintiff and defendant are Michigan residents and the vehicle was insured under the no-fault laws of this state."
2. Even though the court did not submit the threshold issue to the jury, the court ruled that no reasonable jury could have ruled against plaintiff on this issue. The plaintiff sustained an injury to his wrist, which required wrist fusion surgery and also fusion surgery at three levels in his cervical spine. In discussing these injuries, the court stated: "The two injuries for which plaintiff sought compensation were to his back and his wrist. Plaintiff had wrist fusion surgery which has left him unable to bend his wrist in any direction or rotate it. His treating physician stated quite unequivocally that it was related to the accident. Defendants offered no contrary medical evidence. The complete loss of the ability to move one's wrist must be considered the impairment of an important body function. Similarly, the plaintiff had fusion surgery at three levels in his lumbar spine. This caused him to lose the flexibility in his lower spine and he will never be able to lift more than 20 pounds. This qualifies, without question, as a serious impairment. No reasonable juror could find otherwise."
3. The court ruled that the trial court did not commit error when it refused defendant's request to amend the answer to allege that plaintiff passenger's claim was barred in whole or in part by the doctrine of joint enterprise. The court held that the theory of joint enterprise has been limited to third parties injured as a result of the negligent activity of the joint enterprise.
