Michigan Court of Appeals; Docket #308141; Unpublished
Judges Krause, Fitzgerald, and Whitbeck; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
On October 22, 2014, the Michigan Supreme Court reversed the Court of Appeals in lieu of granting leave to appeal; Link to Order
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals vacated the trial court’s grant of summary disposition for defendant because the trial court failed to make a record on whether its decision took into account an affidavit filed by the plaintiff after remand.
The plaintiff in this case was injured in an auto accident in 2005. At the time of the accident, he suffered from “overwhelming pre-existing injuries.” Plaintiff brought this suit arguing that “his preexisting [sic] condition made him all the more vulnerable and a change to his life that would be small to someone without his impairments would be devastating to him.” The defendant later filed a motion for summary disposition, arguing that the plaintiff did not suffer a threshold injury.At the time defendant filed his motion for summary disposition, the tort threshold standard announced in Kreiner v Fischer was controlling. The trial court granted defendant’s motion for summary disposition, and the Court of Appeals later affirmed the tial court's ruling in an unpublished opinion decided on January 6, 2009 (see Red Book #3031). The plaintiff then appealed the lower court’s decision to the Supreme Court. While the appeal was pending, the Supreme Court decided the case of McCormick v Carrier, which overruled the Kreiner decision and set forth a new tort threshold standard. Therefore, in lieu of granting leave to appeal, the Supreme Court remanded this case back to the trial court for reconsideration under the McCormick standard.
On remand, the trial court “took additional briefing and held a hearing.” The plaintiff also submitted a new affidavit “he himself made,” stating that “he suffered a lengthy list of injuries and as a result is unable to engage in another lengthy list of activities.” The trial court again granted summary disposition for the defendant stating that “there remains no evidence that the 2005 accident affected plaintiff’s general ability to lead his normal life.” However, in doing so, the trial court “did not discuss, or even mention, Wiedyk’s Affidavit.” This appeal followed.
The Court of Appeals ruled in this case that the trial court was not required to consider the new affidavit in deciding the matter on remand because the affidavit constituted new evidence that was not submitted during the original proceeding. However, the Court acknowledged that the trial judge had the discretion to consider the affidavit. The Court of Appeals then examined the affidavit and held that if the trial court had considered it, the trial court should have denied defendant's motion for summary disposition because the affidavit created a question of fact on the general ability element. With regard to this affidavit, the Court of Appeals stated, “While it is not a model of clarity, it states in relevant part that ’[a]s a result of my accident related injuries sustained on 7/26/2005, I am unable to do the following activities: [list omitted]’ (emphasis added). By necessary implication, his affidavit states that he was able to engage in those activities prior to the 2005 accident. The list of activities is sufficiently lengthy that, although it does not directly state how plaintiff's ability to lead his life has been affected, it is impossible not to infer a significant degradation thereof. It directly attributes that degradation to the accident and is thus comparative of his life before and after the accident . . . While it does clearly conflict with other evidence, including the Social Security claim mentioned by this Court in its prior opinion, if taken by itself and believed, the Wiedyk Affidavit clearly shows that plaintiff's ability to do much of anything important to his life has been negatively affected. The fact that his life prior to the 2005 accident was already significantly degraded is of little importance; making a bad situation worse is compensable . . . ” (emphasis in original).
On October 22, 2014, the Michigan Supreme Court reversed the Court of Appeals in lieu of ganting leave to appeal.
