Michigan Court of Appeals; Docket # 324281; Unpublished
Judges Cavanagh, Riordan, and Gadola; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Noneconomic Loss Liability of Uninsured Tortfeasors [§3135(1) (3)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held that plaintiff could not recover noneconomic damages under MCL 500.3135 because her life after the auto accident was not “measurably different” from her life before the accident.
According to the opinion in this case, plaintiff had a "substantial medical history of various conditions" prior to the accident, including fibromyalgia, neck pain, shoulder pain, hip and back pain, arm pain and numbness, migraine headaches, together with various other conditions. Plaintiff's pre-existing conditions required her to take various medications including narcotics for pain management. Plaintiff was in a minor auto accident in a parking lot on the July 4, 2012. She alleged that as a result of the accident, she suffered "worsening pain in her neck, arm, leg, and back," which she claimed was "different from the pain she experienced before her cervical spinal surgery." Plaintiff sought treatment for her alleged aggravated injuries some four days after the accident. Approximately nine months later, plaintiff's medical records specified "an injury to her neck and back from the automobile accident" that was "deemed a complete disruption of the prior fusion." Plaintiff's doctor attributed the cause of her aggravated "ailments" to the auto accident and recommended additional surgery —which plaintiff refused to undergo.
The Court of Appeals held that plaintiff failed to satisfy the general ability element under the McCormick v Carrier standard, and affirmed summary disposition for Auto Club. In this regard, the Court said:
“[P]laintiff testified that, as a result of the accident, she does not participate in recreational activities. Specifically, she testified that she cannot go out to eat, go walking, fish, play pool, dance, and watch her kids bowl. In addition, plaintiff alleged that she no longer plays bingo, does not crochet, and does not do anything because she cannot sit for more than 10 to 15 minutes. However, plaintiff does not need assistance with self-care. Although plaintiff claimed to need help with household chores, she did not request attendant care and her medical records show that such help was needed with her pre-accident condition as well. When asked about how she traveled to Michigan from Florida for her deposition, plaintiff testified that she was a passenger in a vehicle and traveled the approximate 20 to 22 hours all the way through, making about seven or eight stops. Plaintiff agreed that, although in pain, she had been able to sit having her deposition taken for about an hour and 20 minutes without a break. There was no evidence that plaintiff participated in the group recreational activities she mentioned, other than fishing, with frequency. Rather, her medical history indicates that her pre-accident level of activity was generally sedentary because of her pain and depression. Both before and after the accident, plaintiff was unemployed and receiving disability benefits."
Based on the foregoing, the Court of Appeals concluded the trial court “did not err by concluding that there was no appreciable difference in plaintiff’s normal life before and after the automobile accident, and that, consequently, plaintiff was not entitled to recover noneconomic damages.”
