Michigan Supreme Court; Docket No. 74692; Published
Opinion by Justice Michael Cavanagh; 4-3 (Chief Justice Williams, Joined by Justice Riley, Concurred in Part and Dissented in Part)
Official Michigan Reporter Citation: 472 Mich 32; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (DiFranco Era – 1987-1995) [§3135(1)]
Objective Manifestation Element of Serious Impairment (Kreiner Era – 1996-2010) [§3135(7)]
Important Body Function Element of Serious Impairment (DiFranco Era – 1987-1995) [§3135(1)]
General Ability / Normal Life Element of Serious Impairment (DiFranco Era – 1987-1995) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (DiFranco Era – 1987-1995) [§3135(1)]
Trial Procedure Issues [§3135]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this landmark 4-3 decision by Justice Michael Cavanagh regarding the No-Fault Tort Threshold, the Michigan Supreme Court overruled most of its 1982 decision in Cassidy v McGovern and a long line of Court of Appeals cases interpreting that decision. This Opinion was handed down in five consolidated cases (DiFranco v Pickard, Burk v Warren, Paupore v Rouse, Kucera v Norton, and Routley v Dault). The major aspects of the majority Opinion are summarized below:
1. Major procedural holdings:
A. Trial procedure — In a compete repudiation of the major holding in Cassidy v McGovern, the Supreme Court held that the question of whether a plaintiff has sustained a serious impairment of body function is a question of fact for the jury whenever a reasonable mind could differ as to the answer. This is true even if there is no material factual dispute as to the nature and extent of a plaintiff’s injuries. The court held that evidence must be viewed in a light most favorable to the nonmoving party and, where the question has been submitted to the jury, the jury's findings should generally not be disturbed. The court stated, "our holding marks a return to the rules articulated in Advisory Opinion re: Constitutionality of1972 PA 294,389 Mich 441 (1973) and the Court of Appeals decisions which are consistent with that opinion."
B. Standard of review — The court went on to articulate the correct standard for deciding motions for and reviewing orders granting or denying summary disposition, directed verdict and judgment notwithstanding the verdict. The court stated, "if a material factual dispute existed, or reasonable minds could have differed on whether the plaintiff suffered a serious impairment of body function, the issue should have been submitted to the fact finder. If the issue was properly submitted to the trier of fact, its findings generally should not be disturbed. In a bench trial, the judge's findings of fact must be affirmed unless they are clearly erroneous ... in a. jury trial, the jury's findings of fact, as reflected in its verdict, must be affirmed unless they are against the great weight of the evidence."
2. Major substantive holdings:
A. The Nature of The Threshold - The court made it clear that the Legislature did not intend to limit recovery of non-economic damages to the catastrophically injured auto accident victim. The court stated, "The serious impairment of body function threshold is a significant but not extraordinarily high threshold." The court also made it clear that serious impairment of body function is not comparable to the other thresholds of "death and permanent serious disfigurement." Rather, the court stated, "The serious impairment of body function threshold was designed toeliminate suits based on clearly minor injuries, and those injuries which did not seriously affect the ability of the body, in whole or in part, to function."
B. The new twofold inquiry — The court held that the serious impairment of body function threshold contains two inquiries: (1) what body function, if any, was impaired; and (2) was the impairment of body function serious.The court stated that, "The focus of the inquiry is not on the injuries themselves, but how the injuries affected a particular body function. Generally medical testimony will be needed. The effect of the injury on the plaintiff’s body functions is the paramount consideration, rather than the effect of the injury on the plaintiff’s (or a hypothetical persons) life. Unlike other states, the Legislature did not enact a threshold which looks at how the injury affected the plaintiff’s ability to work or perform his normal activities. Instead, the relevant inquiries are whether the injury impaired a body function, and if so, whether the impairment was serious."
C. Requisite body function — The court further held that the impairment of body function referred to in §3135 need not be an impairment of the entire body function. Moreover, the majority specifically repudiated the requirement in the Cassidy decision that §3135 requires an impairment of an important body function. In rejecting the "important body function" limitation, the court stated, "the legislative history indicates that a comparable threshold - 'serious impairment of significant body functions' — was rejected."
D. Requisite manifestation of injury — The majority also held that an injury need not be "objectively manifested" as that phrase was defined by the Court of Appeals in Williams v Payne (Item No. 708). The Williams decision required proof of "injuries subject to objective medical measurements." The Supreme Court held that the Williams' interpretation has proved to be "an almost insurmountable obstacle to recovery of non-economic damages in soft tissue injury cases." The court went on to state that "Williams misinterpreted Cassidy." All the threshold requires is that "plaintiff prove that his non-economic losses arose out of a medically identifiable injury which seriously impaired a body function." This does not rule out cases where the only evidence of injury is the plaintiff’s subjective complaints of pain, as long as there is some physical basis for the complaints. To this effect, the court stated, "plaintiffs must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering. Neither Cassidy nor §3135(1) limits recovery of non-economic damages to plaintiffs whose injuries can be seen or felt." The court quoted with approval the dissenting opinion of Judge Ravitz in the Court of Appeals case of Garris v Vanderlaan (Item No 879) which states in pertinent part, "where the ordinary means of diagnosis and prescription of treatment are such subjective indications from a patient, a doctor's diagnosis of injury should suffice to satisfy the objective manifestation requirement announced in Cassidy."
E. Impairment of life style — The court held that the no-fault threshold does not require proof that the injury interfered with plaintiff’s "general ability to live a normal life." In soundly rejecting this standard, the Supreme Court stated that this test, "has proved to be an almost insurmountable obstacle to recovering non-economic damages. Apparently only plaintiffs who are bedridden, cannot care for themselves, or are unable to perform any type of work can satisfy this test This was not the intent of the Legislature." The court went on to add, "very simply, there is no such thing as a normal life." In doing away with the "general ability to live a normal life" standard, the court again observed that the relevant threshold inquiry is not the effect an injury has had on a plaintiff’s lifestyle. The court stated, "instead, the relevant inquiries are whether the injury impaired a body function, and if so, whether that impairment was serious." Yet, the majority opinion appears to be somewhat "flexible" on this point in light of the fact that the court used the example of a conceit violinist who sustained a career ending permanent loss of dexterity in his little finger as an example of someone who would have been unfairly and improperly excluded under the "general ability to live a normal life" test of Cassidy v McGovern.
F. Jury instructions — The court stated that juries should be instructed on the following two points:
1. The plaintiff must prove that the claimed injuries impaired one or more body functions and that the impairment of body function was serious; and
2. In determining whether the impairment of body function was serious, the jury should consider such factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors. The court specifically observed that "an impairment need not be permanent to be serious."
3. Major policy holdings:
A. Even though the court recognized that modifying the Cassidy decision would result in more third party cases going to trial, the court noted that permitting more tort cases to proceed to trial will not "cripple the no-fault system." The court stated that "we note that limiting tort liability for non-economic losses is not an essential feature of no-fault acts. Several no-fault states place no limitations on the ability to sue for these damages." The court also added, "moreover, no-fault acts were designed primarily to reduce the number of cases seeking damages for economic loss, e.g., wage loss, survivor's loss, and medical expenses."
B. The court also acknowledged that jurors are quite capable of understanding the phrase "serious impairment of body function". The court observed that no evidence exists that supports the notion that the Legislature's original intent was to take the threshold issues away from juries. The court commented "Moreover, trial and appellate courts have proven to be no more consistent than juries would have been in determining whether a particular plaintiff suffered a serious impairment of body function. Properly instructed jurors are capable of weighing evidence and using their collective experiences to determine whether a particular plaintiff has suffered an impairment of body function and whether that impairment was serious. Their verdict represents the collective judgment of six people, as opposed to the views of one trial judge, and perhaps a panel of appellate judges reviewing, a cold record. Without further guidance from the Legislature, we believe that juries are better suited to resolving threshold questions where reasonable minds can differ on the answer."
4. Individual case disposition:
A. DiFranco v Pickard -- Plaintiff sustained soft tissue neck and lower back injuries. He had muscle spasms, active range of motion limitations and loss of normal spinal lordosis. His injuries required some physical therapy and at home treatment Plaintiff was off work for approximately 2 months and was able to return without restrictions. He continued to experience pain and range of motion limitations. His doctor indicated his condition was chronic. The trial court denied motions for summary judgment filed by both plaintiff and defendant and permitted the case to go to the jury who found the plaintiff had not suffered a serious impairment of body function. The Supreme Court held that, in light of the fact that reasonable minds could differ on a question, the question was properly submitted to the jury for determination of the threshold and their finding was not against the great weight of the evidence.
B. Burk v Warren -- Plaintiff sustained a fractured clavicle (collar bone) which was set by closed reduction fixation. The fracture required the use of a brace cast for four to six weeks. The fracture healed without complications. The case was submitted to a jury on the threshold issue and the jury returned a verdict against plaintiff. The Supreme Court held that the case was properly submitted to the jury and, since the jury's findings were not against the great weight of the evidence, the verdict should not have been disturbed.
C. Paupore v Rouse -- Plaintiff sustained a fractured lower jaw, the subsequent loss of four wisdom teeth and temporary hearing difficulties. He was hospitalized for six days and his teeth and mouth were surgically wired together for approximately three months. There was also evidence that plaintiff needed orthodontic dental work because of the accident, which'treatment plaintiff decided not to undergo. The plaintiff’s jaw fracture healed satisfactorily in approximately three to four months with no residual impairment of mouth function. The case was submitted to the jury which found that plaintiff had not sustained a serious impairment of body function. The Supreme Court held that because reasonable minds could differ as to whether plaintiff’s impairment was serious, the case was properly submitted to the jury. The verdict was not against the great weight of the evidence, therefore, it should not be disturbed.
D. Kucera v Norton -- Plaintiff sustained soft tissue injuries to his back which allegedly prevented him from lifting more than 35 pounds or engaging in certain physical activities. Plaintiff treated with a chiropractor for quite some time but missed very little work. The case was submitted to the jury on all issues and the jury returned a verdict for plaintiff in the amount of $10,000. The trial court granted JNOV for the defendant on the basis that plaintiff’s injuries did not amount to serious impairment of body function as a matter of law. The Supreme Court reversed, holding that the case was properly submitted to the jury on the threshold issue and the verdict should be sustained as it was not against the great weight of the evidence.
E. Routley v Dault -- Plaintiff sustained an inguinal hernia requiring two separate operations. Plaintiff was hospitalized for approximately ten days, was not able to perform his logging job, and was impaired in his general ability to walk and lift because of the residual effects of the surgery. Plaintiff also experienced pain after standing for long periods of time, climbing stairs and lifting more than 40 pounds. The trial court granted summary judgment for defendant on the threshold issue. The Supreme Court reversed, holding that the case should have gone to the jury as reasonable minds could differ on the threshold question.
Chief Justice Williams, joined by Justice Riley, concurred in part and dissented in part, stating that where there is no factual dispute regarding the extent of a plaintiff’s injuries, the trial court should decide as a matter of law whether the plaintiff had suffered a serious impairment of body function. Where there is a factual dispute which "straddles the line demarcating those injuries which constitute serious impairment of body function, and those which do not," the factual dispute is to be submitted to the jury, which should be instructed that, if it finds the facts as the plaintiff claim, it must also find a serious impairment of body function. Justice Williams went on to say that in his opinion Cassidy correctly imposed a requirement that there be an impairment of an important body function. Justice Williams also wrote that the "general ability to live a normal life" test should be regarded as "useful" but not "exclusively definitive." Justice Levin concurred with that portion of Justice Williams' dissent that would hold the threshold issue to be a matter of law for the court where there is no material factual dispute as to the nature and extent of the plaintiff’s injuries.
