Michigan Court of Appeals; Docket #264758; Unpublished
Judges Smolenski, Whitbeck, and O’Connell; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010 [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Uninsured Motorist Benefits: Uninsured Motorist Coverage in General
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals found that defendants were entitled to summary disposition on plaintiff’s claim that her closed head injury constituted a threshold injury because plaintiff failed to provide expert evidence “under oath” that she sustained a serious closed head injury. However, the Court of Appeals affirmed the trial court order granting summary disposition in favor of defendants on plaintiff’s claim for uninsured motorist benefits, finding that plaintiff failed to allege a serious impairment of body function under the test set out in Kreiner v Fisher [RB #2428].
The plaintiff in this case sustained a fractured left sternum, damage to her left trigeminal nerve, a mild closed head injury which caused daily headaches for one or two months, and dysesthia (tingling) in her scalp. As a result of the injuries, plaintiff was off work for about one month and experienced pain when she vacuumed and lifted heavy objects. After plaintiff’s no-fault insurer denied her claim for first-party and uninsured motorist benefits, plaintiff filed this action. The trial court denied in part and granted in part defendant’s motion for summary disposition finding that plaintiff presented evidence of a closed head injury but failed to show that she had suffered a serious impairment of body function.
On appeal, defendant argued it was entitled to summary disposition because plaintiff failed to provide evidence “under oath” to support her allegation that she sustained a serious closed head injury. In reversing, the Court of Appeals recognized that MCL 500.3135(2)(a)(ii) requires testimony of an expert made “‘under oath’ or accompanied by a sworn statement to speak the truth.’” At the most, plaintiff produced evidence that she sustained a mild closed head injury. This was insufficient to survive defendant’s motion for summary disposition. In this regard, the court stated:
“We first find significant that the plain language of MCL 500.3135(2)(a)(ii) requires that the relied-upon expert testimony be made ‘under oath,’ or accompanied by a sworn statement to speak the truth. We further find significant that the principles governing review of a motion for summary disposition brought under MCR 2.116(C)(10), require that the nonmoving party show that a genuine issue of disputed fact exists and produce admissible evidence to establish those disputed facts. ‘A reviewing court may not employ a standard citing the mere possibility that the claim might be supported by evidence produced at trial. A mere promise is insufficient under our court rules.’ Reading these MCL 500.3135(2)(a)(ii) and MCR 2.116(C)(10) requirements together, we conclude that a party relying on MCL 500.3135(2)(a)(ii) to oppose a (C)(10) motion must provide some testimony under oath, e.g., a sworn affidavit or deposition, from an appropriate expert opining that the plaintiff may have suffered a serious neurological injury. . . . [N]one of the Ballards’ unsworn documentary evidence establishes that an appropriate expert, or any physician who treated her, believed that Karen Ballard may have suffered a serious neurological injury. . . . Here, Dr. Dardas merely described Karen Ballard’s closed-head injury as ‘mild.’ . . . [B]ecause the Ballards have not provided sufficient evidence – testimony taken under oath – that Karen Ballard may have suffered a serious neurological injury, we conclude that the trial court committed error requiring reversal when it held that summary disposition was inappropriate because the Ballards might be able to comply with MCL 500.3135(2)(a)(ii).”
In her cross-appeal, plaintiff argued she alleged sufficient evidence that her injuries have interfered with the course and trajectory of her normal life. The Court of Appeals disagreed, finding that plaintiff is able to engage in all of her pre-accident activities, and although she was off work for a total of eight-weeks and experiences tingling when she brushes her hair or touches her scalp, this is insufficient to show the course and trajectory of her life has been affected. In this regard, the court stated:
“Comparing Karen Ballard’s activities before and after the accident shows that her injuries did not interfere with her general ability to lead her normal life. While Karen Ballard stated during her deposition that she experienced some initial discomfort and limitations, she acknowledged that those conditions had either resolved or had not prevented her from doing the things she wanted to do. . . . Although some aspects of Karen Ballard’s life have been affected, we conclude that the course or trajectory of her life has not been affected. There is no indication that Karen Ballard suffers from any physical disability that prevents her from engaging in work or other daily activities; any residual restrictions on Karen Ballard’s ability to perform her daily activities are self-imposed. We, therefore, conclude that Karen Ballard failed to present sufficient evidence to show that her injuries were so life altering as to affect her general ability to lead her normal life as defined in Kreiner. Therefore, the trial court erred in concluding that the Ballards presented sufficient authority that Karen Ballard’s injuries met the threshold requirement under MCL 500.3135(1).”
