Michigan Court of Appeals; Docket No. 78-3254; Published
Judges Gillis, R. B. Burns, and Kaufman; 2-1, Opinion by Judge Gillis
Official Michigan Reporter Citation: 93 Mich 166; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Pre-Cassidy Era – 1973-1982) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (Pre-Cassidy Era – 1973-1982) [§3135(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In a 2-1 decision per Judge Gillis, the Court of Appeals affirmed the granting of a summary judgment dismissing plaintiff’s case on the basis that plaintiff did not sustain a serious impairment of body unction pursuant to §3135(1) of the no-fault statutes. The plaintiff had received only four heat treatments and medication from a chiropractor within the first two months after his accident and did not require any follow-up treatment after that time. However, the plaintiff’s chiropractor submitted a written affidavit in opposition of defendant's motion for summary judgment which affidavit described in medical terms the plaintiff’s injury and stated that, in the chiropractor's opinion, the plaintiff had sustained a serious impairment of body function.
The Court stated that the question of whether or not a particular impairment satisfies the threshold requirements of the no-fault act is not always a question for the trier of fact. There are cases in which the Court can rule as a matter of law that a plaintiff’s injury is so minor that it fails to reach the threshold of a serious impairment of body function. In commenting upon the standard which should be applied in deciding such motions, the Court stated that, "The question of serious impairment is one of law where it can be said with certainty that no reasonable jury could view a plaintiff’s impairment as serious. Such question must be approached on a case-by-case basis."
The Court also held that the defendant's failure to file an affidavit in support of the motion which was based upon personal knowledge, did not render the granting of the motion improper. The defendant filed an affidavit of defense counsel which was made upon information and belief. The Court commented that the evidentiary facts concerning the specific nature of the plaintiff’s injuries were only within the personal knowledge of the plaintiff and his doctor. That being the case, the trial court had authority under GCR 116.6 to excuse defendant from presenting material facts in his affidavit and could permit him to file an affidavit upon information and belief.
Judge Kaufman filed a dissenting opinion. He stated that a motion for summary judgment under GCR 117.2(3) is not proper unless no genuine issue as to any material fact remains. In passing upon such a motion, benefit of every reasonable doubt must be given to the party opposing the motion. In this case, the plaintiff’s treating physician had submitted an affidavit describing the plaintiff’s injuries and expressing an opinion that the injuries constituted a serious impairment of body function. Based upon these facts, a jury could have gone either way on the threshold issue. Thus, summary judgment was improper.
[Author's Comment: This decision was erroneously omitted from the Twelfth Supplement and is belatedly summarized herein.]
