Michigan Court of Appeals; Docket #285852; Published
Judges M.J. Kelly, K.F. Kelly, and Shapiro; 2-1 (K.F. Kelly, dissenting)
Official Michigan Reporter Citation: 286 Mich. App. 54, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010 [3135(7)]
Important Body Function Element of Serious Impairment [3135(7)]
Noneconomic Loss Liability for Permanent Serious Disfigurement Threshold (Definition) [3135(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 published opinion by Judge M. J. Kelly, decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as interpreted by the Supreme Court’s decision in Kreiner v Fischer [Item No. 2428], and affirmed the trial court’s Order denying defendant’s motion for summary disposition on plaintiff’s claim for noneconomic damages.
The plaintiff in this case fractured one of his front teeth which had to be removed and replaced with a single implanted post and crown. However, due to existing conditions of the plaintiff’s surrounding teeth, all of plaintiff’s top front teeth, 14 in total, had to be removed and replaced with a partial upper denture, which was attached to implanted posts. Although no physicians or dentists restricted plaintiff’s activities, he testified that because of the dentures he had trouble eating certain foods and that the dentures altered his appearance by making his top lip protrude, caused him to drool, and altered his speech. In addition, plaintiff testified that removing and replacing the dentures each day was painful, frustrating and upsetting, and could take between 45 minutes to 1 hour on the days he was having difficulties.
In affirming, the court relied on Moore v Cregeur, 266 Mich App 515; 702 NW2d 648 (2005), and noted that plaintiff could not eat without a special device. He also presented evidence that he had pain and difficulty when using the device, as well as drooling and altered speech. In addition, the court noted that plaintiff’s tooth loss will affect every aspect of his life to some degree and will affect certain activities. Moreover, like the plaintiff in Caiger v Oakley, 285 Mich App 389 (2009), plaintiff is missing a portion of his body that he will never retrieve and must now depend upon an artificial joint. Therefore, the court held that plaintiff’s loss of teeth and the need for a prosthetic device constituted serious impairment of body function. In this regard, the court stated:
“We find Moore applicable here. Fisher cannot eat without the ‘special device’ of his denture implant. He also presented evidence of his pain and difficulty in using this device as well as evidence that he drools occasionally due to the denture, and that the denture has altered his speech. Like the plaintiff’s vision impairment in Moore, Fisher’s tooth ‘loss will affect every aspect of [his] life to some degree and will affect certain specific activities . . . even more.’ Id. at 521. In addition, this Court recently held that a plaintiff who elected to have knee replacement surgery after his knee was injured in a car crash had established a serious impairment of body function; this was in part because he ‘is still missing a portion of his body that he will never retrieve’ and now ‘must forever depend on an artificial joint for his mobility.’ Caiger v Oakley, ___ Mich App ___; ___ NW2d ____ (____) (Docket No. 285549, issued August 25, 2009). Although this case involves a set of prosthetic teeth rather than a prosthetic joint, the same analysis applies: Fisher must forever rely on a prosthetic in order to participate in everyday life activities such as eating and speaking.
Under the facts of this case, Fisher’s loss of teeth and the concomitant need for a prosthetic constitutes a serious impairment of body function as a matter of law.”
The court then held that the trial court properly denied defendant’s motion for summary disposition on plaintiff’s claim regarding permanent serious disfigurement. In so holding, the court noted that it is clear that the loss of plaintiff’s teeth mars his overall appearance and is a disfigurement. In addition, the court noted that the disfigurement will last for the remainder of plaintiff’s life. Therefore, the court stated that plaintiff had suffered a permanent disfigurement. Finally, the court found that the disfigurement may be serious. In so finding, the court held that:
“[C]ourts must consider the affect of the disfigurement on the injured person’s appearance without the use of devices designed to conceal the disfigurement such as dentures in this case. We do not, however, hold that the need–or lack thereof–for a prosthetic device cannot be considered when determining the seriousness of the disfigurement. Indeed, the fact that an injured person requires, or does not require, the use of a prosthetic to mitigate the disfiguring affects of an injury will often be evidence of the seriousness of the disfigurement.”
Based on this determination, the court found that plaintiff’s ability to conceal his disfigurement with dentures does not render his disfigurement less serious. Instead, the court determined that the need for such a device is evidence that the disfigurement is so serious that one cannot reasonably expect plaintiff to appear in public without it. In addition, the court noted that even when plaintiff uses his dentures, his appearance is altered. Therefore, the court determined that plaintiff’s injury amounts to a permanent serious disfigurement. In this regard, the court stated:
“Applying the above considerations to this case, we conclude that Fisher’s ability to partially conceal his disfigurement through the use of dentures does not render his disfigurement less serious. Rather, we conclude that the need for such a prosthetic is evidence that the disfigurement itself is so serious that one cannot reasonably expect Fisher to appear in public without it. Further, even when he uses the dentures, his appearance is significantly altered; his upper lip protrudes, he drools, and his speech is altered. Therefore, taking into consideration the effect of Fisher’s injury on his appearance with regard to the full spectrum of his life activities, we conclude that Fisher’s injury amounts to a permanent serious disfigurement.”
