Michigan Court of Appeals; Docket #258619; Unpublished
Judges Meter, Hoekstra, and Markey; 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)]
TOPICAL INDEXING:
Default and Default Judgments
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of body function, the Court of Appeals affirmed the trial court orders setting aside a default judgment and granting defendant summary disposition on plaintiff’s claim for non-economic losses. The plaintiff in this case broke her left middle finger for which she underwent surgery. After surgery, plaintiff wore a splint and a bandage for approximately one month. She was off work about six weeks and attended physical therapy twice a week for a couple months. Although X-rays showed the break had healed, plaintiff is unable to make a fist because the finger will not bend. In addition, plaintiff has pain in her finger when the weather is cold. Plaintiff appealed the trial court order setting aside her default judgment for defendant’s failure to answer in a timely manner, arguing the trial court improperly found that defendant asserted a meritorious defense. In affirming, the Court of Appeals noted that defendant presented the absolute defense that plaintiff failed to show that she suffered a serious impairment of body function. Therefore, because he presented an absolute defense, his good cause showing to set side the default judgment is lessened. Defendant attempted to contact his insurance agent before the answer was due and eventually faxed the summons and complaint. The insurance company contacted plaintiff’s counsel the day after the default was entered and immediately forwarded the summons and complaint to defense counsel who, in turn, also contacted plaintiff’s counsel. Although this was not a strong showing of good cause, coupled with the absolute defense that plaintiff did not sustain a serious impairment of body function, the trial court did not abuse its discretion when it set the default aside. In so finding, the court stated:
“Defendant asserted the defense that plaintiff had not suffered a serious impairment of body function. If proven, the defense is absolute. Under the no-fault act, a person may not recover for noneconomic damages arising from an automobile accident unless the person has suffered death, a permanent serious disfigurement, or a serious impairment of body function. . . . Because defendant has presented an absolute defense, the good cause showing defendant is required to make is lessened. . . . We conclude that defendant did not make a particularly strong showing of good cause, but he did establish some basis for the delay. More importantly, any weakness in defendant’s showing of good cause was offset by his defense of plaintiff’s lack of serious impairment; this defense was very strong. We simply cannot conclude that the trial court abused its discretion in setting aside the default.”
The Court of Appeals next found that plaintiff’s injury did not affect her general ability to lead her normal life. In so finding, the court noted that plaintiff’s finger was completely healed within six weeks of her surgery. Moreover, plaintiff was able to return to work without restrictions and, although she was unable to work as many hours as she had before the accident, the reduction in hours was not due to her injury, but due to a decrease in business. In this regard, the court stated:
“Four days after the accident, which occurred in January 2002, plaintiff underwent surgery to repair her broken finger. Following the surgery, plaintiff had to wear a splint on her left hand for about a month and a bandage around her left middle finger. By the summer of 2002, Janes was wearing nothing around her finger. Plaintiff went to physical therapy twice a week for a couple of months. Since the physical therapy has ended, plaintiff has not received any further treatment on her finger. X-rays taken of plaintiff’s finger approximately a month and a half after the surgery revealed that plaintiff’s finger was well healed. Plaintiff can extend her left middle finger without pain, but she cannot make a fist because the finger does not want to bend. Plaintiff occasionally experiences soreness in her finger, which she attributes to cold weather. . . . Plaintiff’s injury to her left middle finger was not extensive. Her recuperation was short and unremarkable and is virtually complete. Any remaining effects of plaintiff’s broken finger on her ability to use either her left middle finger or her left hand are not pervasive. Given the limited nature and extent of plaintiff’s injury, we agree with the trial court that plaintiff did not suffer a serious impairment of body function.”
