Michigan Court of Appeals; Docket No. 65649; Published
Judges Kelly, Gribbs, and Tahvonen; Unanimous; Per Curiam
Official Michigan Reporter Citation: 127 Mich App 73; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Cassidy Era – 1983-1986) [§3135(1)]
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 (DiFranco Era – 1987-1995) [§3135(1)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This unanimous per curiam Opinion is the second appellate court case implementing the Supreme Court's threshold injury decision in Cassidy v McGovern (item number 415). In this decision, the Court of Appeals affirmed a grant of summary judgment in favor of defendant on the threshold question pursuant to the terms of GCR117.2(3) permitting summary judgment when there is no genuine issue as to any material fact thus entitling the moving party to judgment as a matter of law.
In affirming summary judgment, the court observed that the Cassidy decision requires a trial court to decide the threshold question as a matter of law, when there is no factual dispute regarding the extent of a plaintiff’s injuries. In this particular case, the trial court's decision was based upon "the party’s briefs, plaintiff’s deposition and the remainder of the court file." The plaintiff had not offered any medical testimony prior to the motion for summary judgment supporting her claim of threshold injury.
The specific injury involved in this case apparently was a soft tissue injury to plaintiff’s back. On appeal, plaintiff claimed that she had sustained a "severe dorsal strain," and as a result of that injury she was entirely disabled from work for three months. However, the Court of Appeals noted that "the report containing that diagnosis is not included in the lower court file and, therefore, it cannot be used by plaintiff to bolster her claim on appeal." Plaintiff further contended that when she returned to work following her three month disability she was released for only "light duty" by her physician. The Court of Appeals again noted that "this was not established at the lower court proceeding. Indeed, plaintiff’s deposition testimony is contrary to that position."
In affirming the summary judgment, the Court noted that it was based upon GCR 117.2(3), as opposed to GCR 117.2(1). A motion brought under subsection (3) is designed to "test whether factual support exists in this claim. The party opposing this motion must present some proof to establish the existence of a genuine issue of material facts. There was no dispute as to the injuries sustained in the present case." The Court also observed that plaintiff’s injury "does not appear to have effected plaintiff’s mode of living in any significant way," and further, that "plaintiff was not incapacitated by her discomfort, nor did it interfere with her normal lifestyle." Therefore, based upon virtually non existent facts supporting plaintiff’s threshold injury claim, the Court of Appeals confirmed the grant of summary judgment..
