Michigan Court of Appeals; Docket No. 66840; Published
Judges T.M. Burns, Hood, and Deming; Unanimous; Per Curiam
Official Michigan Reporter Citation: 135 Mich App 477; Link to Opinion 
STATUTORY INDEXING:
Objective Manifestation 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)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(b)]
Trial Procedure Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This unanimous per curiam opinion involving a third party tort action contains significant pronouncements regarding threshold injury determinations under the rule in Cassidy v McGovern as well as other aspects of the trial of third party tort claims.
The plaintiff in this case sustained soft tissue injuries to the back which resulted in a limitation of movement, pain and an interference with work. The case was tried to a jury who returned a verdict in plaintiff's favor in the amount of $340,000. The trial court granted remittitur and reduced the award to $165,000. Both parties appealed. The Court of Appeals affirmed and held as follows:
1. Under the rule in Cassidy v McGovern (item number 657) questions involving serious impairment of body function are matters of law only where there is no material factual dispute as to the nature and extent of a plaintiff's injury. The threshold question in this case was properly submitted to the jury because "the parties' proofs directly conflicted on the question of plaintiff s claimed injury. This dispute was immaterial to the issues only if the injury, as described by plaintiff and his medical witnesses, does not meet the statutory threshold for tort liability, since in considering a motion for directed verdict, the trial court can view the evidence in a light most favorable to the nonmoving party." In holding that the jury could have reasonably concluded that plaintiff’s injuries amounted to a serious impairment of body function, the Court of Appeals noted the following:
"Dr. Maxwell Newman testified that plaintiff had sustained muscle tears in his back during the accident The resultant scar tissue, accompanied by a diminution in the amount of elasticity in the surrounding area, limited plaintiff’s range of motion. Using a "passive" range of motion test which he termed "totally objective," Dr. Maxwell Newman found plaintiff’s trunk movement restricted by 20 to 30 percent. He found that this impairment restricted plaintiff’s bending, lifting, twisting and turning. Dr. Steven Newman agreed with the diagnosis of Maxwell Newman. It is obvious that the plaintiff's ability to move his back is an important body function. Plaintiff’s restricted ability to move his back is an objective manifestation of his injuries. Drs. Maxwell and Steven Newman both found that plaintiff's injury was permanent Despite this evidence, defendant claims that plaintiff never stayed overnight in a hospital and continued to work after the accident While these factors are relevant to the seriousness of plaintiff s injury, they do not per se preclude recovery. The trial court, upon consideration of defendant's motion for directed verdict, properly viewed the evidence in a light most favorable toward plaintiff."
2. With regard to proving threshold injury, the Court of Appeals upheld the trial court's admission of the results of thermographic testing. The Court specifically ruled that it was proper to permit plaintiff to introduce, on rebuttal, the testimony of Dr. Ram Gunabalan regarding a thermographic examination of plaintiff. The Court stated, "each of defendant's medical witnesses insisted that there was no objective evidence that plaintiff had a back injury. Dr Gunabalan properly rebutted this testimony by testifying that objective evidence supported plaintiff’s allegation of a back injury. Defendant does not challenge the admissibility of thermographic evidence per se. This new diagnostic tool allows medical examiners to objectively document conditions which may have been previously categorized as subjective complaints. The testimony and video display presented at trial provided objective evidence of plaintiff’s claim of injury. The trial court committed no abusive discretion in admitting it, as the evidence was particularly helpful to a clear understanding of the issues in the case. Kokinakes v British Zeyland, Ltd., (item number 665).
3. The Court affirmed the continuing vitality of the rule in Karros v White (item number 354) that where the only threshold claim submitted to a jury is a claim of serious impairment of body function, it is improper to include in the instruction references to the other two thresholds of death and permanent serious disfigurement The Court stated, "plaintiff survived the accident and advanced no disfigurement claim. Reference to the alternative thresholds of tort liability would have been irrelevant and caused confusion Karrosv White."
4. In addition to being entitled to recover noneconomic losses under §3135, the plaintiff may also sue for "loss of earning capacity." The Court rejected the defendant's argument that based upon the decisions in Gerardi v Buckeye Union Ins. Co. (item number 176), Struebel v DAIIE (item number 109), Nawrocki v Hawkeye Security Ins Co. (item number 76), the no-fault statute barred claims for loss of earning capacity. The Court stated that those cases involved claims for loss of earnings capacity as part of first party pip benefits. In ruling that plaintiff could pursue a claim for loss of earning capacity, the opinion contains a confusing reference as to whether or not such a claim would require proof of threshold injury. The Court stated, "since plaintiff proved that he suffers a serious impairment of body function, he may recover economic losses not guaranteed by the No-Fault Act. Since plaintiff could not have recovered work loss benefits from his insurance carrier, he could recover for loss of earning capacity in the instant tort action." The Supreme Court in Cassidy v McGovern (item number 657) has previously ruled that a plaintiff need not prove a threshold injury to recover excess economic losses. Thus, this reference to a threshold requirement in the Court of Appeals' opinion is unclear.
