Michigan Court of Appeals; Docket No. 70429; Published
Judges Allen, Brennan, and Kaufman; 2-1 (with Kaufman Dissenting)
Official Michigan Reporter Citation: 165 Mich App 457; Link to Opinion 
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (Cassidy Era – 1983-1986) [§3135(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This 2-1 Opinion by Judge Brennan is another case dealing with threshold injury determinations under the Supreme Court's recent decision in Cassidy v McGovern. This panel affirmed a trial court's summary judgment in favor of defendant on the threshold question. Like the decision in Jakubiec v Kumbier (item number 732), the opinion does not set forth any "new rules" regarding threshold determinations but simply describes plaintiff’s injuries and includes that the trial court's decision that plaintiff did not sustain serious impairment of body function was legally correct.
With regard to the application of the Cassidy decision, the Court did indicate (as have other panels) that threshold determinations are matters of law for the trial court only where there is no material factual dispute as to the nature and extent of a plaintiff’s injuries. The Court stated, "in Cassidy v McGovern, the Supreme Court modified the application of §3135 to allow a trial court, in certain instances, to rule on the threshold issue of a serious impairment of a body function as a matter of law, rather than giving it to the trier of fact"
In the case at bar, the Court concluded that even though there was a factual dispute regarding the nature of the plaintiff’s injuries, it was not material to the threshold question and thus, did not require jury determination. The Court stated, "although a dispute exists between the parties as to the various injuries suffered by plaintiff, the record is clear that considering the injuries in a light most favorable to the plaintiff, the injuries do not reach the threshold required under §3135. Accordingly, the factual dispute in this case is not a dispute material to the determination of whether plaintiff has suffered a serious impairment of a body function. Therefore, the trial court was free to rule as a matter of law whether the threshold requirements of §3135 had been met."
Essentially, the plaintiff’s injuries consisted of soft tissue low back injuries and lacerations on the forehead and legs which did not require suturing. Plaintiff was seen in an emergency room immediately after the accident and as an outpatient on the following day at another hospital. She saw her family physician who ordered that she remain in bed for one month following the accident. Plaintiff continued to complain of lower back pains, headaches and dizziness, in spite of the fact that her family physician stated in the medical report eight months after the accident that plaintiff’s "symptoms should have cleared by now." Plaintiff received out-patient physical therapy for a three week period and was also hospitalized as an in-patient for three weeks for a neurological evaluation. She received chiropractic treatments for lower back pain for a one and a half year period. According to the dissent, plaintiff also apparently was unable to work for six months and was required to wear a cervical collar during that six month period.
As indicated, the majority concluded that even though a factual dispute existed as to the nature of these injuries, the injuries viewed in a light most favorable to plaintiff did not amount to a serious impairment of body function.
Judge Kaufman dissented. He felt that the factual dispute that existed in this case was material to the question of whether plaintiff suffered a serious impairment of body function and should have gone to a jury.
