Michigan Court of Appeals; Docket #287001; Unpublished
Judges Talbot, O’Connell, and Davis; 2-1 (Talbot dissenting), per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Important Body Function Element of Serious Impairment [3135(7)]
General Ability/Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion by Judges O’Connell and Davis, with Judge Talbot dissenting, decided without oral argument, the Court of Appeals dealt with the statutory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 reversed the trial court’s Order granting summary disposition in favor of defendant on plaintiff’s claim for underinsured motorist benefits.
The plaintiff in this case sustained multiple fractures in his lower spine when the car in which he was a passenger left the roadway and rolled several times. The plaintiff settled his auto negligence claim against the driver for $20,000, the limit of the driver’s no-fault insurance policy.
After the accident and for several months, plaintiff treated with Dr. Stubbart, an orthopedic surgeon. Dr. Stubbart restricted plaintiff from engaging in any “strenuous activity” for three months. During this time, plaintiff was unable to work at his part-time job at a machine shop, work as a lifeguard, or participate in many of the activities in which he had participated prior to the accident, including: jogging, volleyball, water skiing and knee boarding, off-roading in his Jeep, riding quads, mowing the lawn, marching in band, biking, and rollerblading.
Two months after the accident, plaintiff’s orthopedic surgeon restricted him to sit-down work. A month later, the doctor allowed plaintiff to return to work without restrictions and prescribed physical therapy and a home exercise program three times a week for six weeks. Six months after the accident, the doctor noted that plaintiff continued to have pain related to activity that improved with rest and that plaintiff was intermittently taking Ibuprofen. X-rays that were taken at that time showed the fractures had healed. The doctor issued a pain-based restriction which meant that plaintiff could not engage in activity that caused discomfort.
After plaintiff graduated from high school, he enrolled in community college and worked part-time at the machine shop. In summer, plaintiff worked full-time. Plaintiff later transferred to Ferris State University where he majored in manufacturing engineering technology.
In reversing, the court noted that although plaintiff was able return to school and work with some limitations, and begin jogging, albeit on a low impact elliptical machine instead of outside, the court noted that before the accident plaintiff enjoyed an active lifestyle. This lifestyle had a strong emphasis on highly physical outdoor activities such as rollerblading and water skiing. The court also noted that plaintiff testified he could no longer engage in many of those activities. The court stated that it would not likely dismiss such a fundamental restriction to a lifestyle. In addition, the court noted that plaintiff testified that his ability to work with heavy objects is important in his chosen career. Therefore, the court concluded that it was convinced that plaintiff’s general ability to lead his normal life was affected. In this regard, the court stated:
“We note that some of plaintiff’s claim that his impairment affected his general ability to lead his normal life rests on the restrictions he experienced in the first few months after his injury, and we also note that plaintiff was never unable to care for himself at a basic level. Plaintiff was able to return to school and to work, albeit with some limitations. Plaintiff was even able to return to jogging, although his physical therapist strongly suggested that plaintiff stop jogging outside and instead run on a low impact ‘elliptical’ machine. However, it is also clear that plaintiff enjoyed an active lifestyle prior to the accident, with a strong emphasis on highly physical outdoor activities – e.g., rollerblading or water-skiing. He testified that he is no longer capable of engaging in many of those activities. We would not lightly dismiss such a fundamental reduction in a person’s lifestyle. Furthermore, plaintiff testified that the ability to work with heavy objects is an important element of his work in his chosen career. Even if the reduction in his ability to carry heavy objects is relatively minor, it appears pervasive. We are convinced that plaintiff’s general ability to lead his normal life has been affected. Consequently, we conclude that the trial court erred in granting summary disposition to defendant on the basis of finding no serious impairment of bodily function.”
Judge Talbot dissented, stating:
“Because the legal precedent established by our Supreme Court in Kreiner binds us, I would concur with the trial court’s grant of summary disposition in favor of defendant. See Kelly-Stehney & Assoc v MacDonald’s Industrial Products, Inc, 265 Mich App 105, 107; 693 NW2d 394 (2005). Although I do not doubt that certain aspects of plaintiff’s life may have been impacted by his impairment, I do not believe that the course or trajectory of his normal life has been affected. Consequently, and consistent with Kreiner, supra at 131, I find that plaintiff’s injury does not meet the threshold necessary to establish a ‘serious impairment of body function.’”
