Michigan Court of Appeals; Docket No. 78-1386; Published
Judges T. M. Burns, Kaufman, and Maher; Opinion by Judge T. M. Burns
Official Michigan Reporter Citation: 93 Mich App 24; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Pre-Cassidy Era – 1973-1982) [§3135(1)]
Noneconomic Loss Liability of Uninsured Tortfeasors [§3135(1), (3)]
Liability for Economic Loss Caused by Uninsured Tortfeasors [§3135(3)(b)]
Trial Procedure Issues [§3135]
General / Miscellaneous [§3135]
TOPICAL INDEXING:
Motor Vehicle Code (Civil Liability of Owner) (MCL 257.401)
CASE SUMMARY:
In an Opinion by Judge T. M. Burns, with Judge Maher concurring in part and dissenting in part, the Court of Appeals issued some significant holdings regarding the trial of a third party tort action under the no-fault statute.
First, the Court unanimously held that the trial judge gave an erroneous instruction on the meaning of serious impairment of body function when it instructed, "The term serious impairment has been interpreted as meaning an impairment of a body function of more than ordinary severity." The Court of Appeals held that the phrase "more than ordinary severity" is not the same as "serious." In a footnote, the Court stated, "We would note, however, that the Court should have instructed mat a serious impairment of body function need not be permanent." The Court further remarked that on retrial, the Court should consider the opinions in McKendrick v Petrucci (item number 19), Cassidy v McGovern (item number 108), and Stevens v Hogue (hem number 98) for guidance in framing jury instructions on the question of serious impairment of body function.
Second, the Court held that the owner liability statute (MCLA 257.401) has been affected by the no-fault statute. Thus, the liability of an owner is subject to the tort limitation provisions of §3135 of the statute.
Third, the Court held that whether or not a defendant motorist is insured is a relevant inquiry for purposes of ascertaining whether or not the tort limitation provisions of the act apply to such a defendant. However, this inquiry should be addressed to the Court, not the jury.
Fourth, the Court held that an uninsured motorist is not entitled to the tort limitation protections of §3135 of the statute. Accordingly, as to that individual, full traditional tort liability is retained. In so holding, the Court ruled that §3135(2) controls this question, and under that section, tort liability is abolished only the defendant is insured. Unless a defendant has brought himself within §3135(2) by purchasing insurance, §3135(1) would not apply. The Court held that this is how this statute was construed by the Supreme Court in Shavers v Attorney General (item number 85).
Judge Maher dissented on the uninsured motorist liability issue. He would hold that under the no-fault statute all tort liability for noneconomic losses which fall below the threshold of §3135 is abolished regardless of whether the defendant is insured or not. An uninsured motorist would remain liable for all economic losses and for noneconomic losses above the threshold.
