Michigan Court of Appeals; Docket #267640; Unpublished
Judges O’Connell, Murphy, and Wilder; 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)]
Noneconomic Loss Liability for Permanent Serious Disfigurement Threshold (Definition) [3135(1)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(1)(2)]
TOPICAL INDEXING:
Not applicable
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In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of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 order granting summary disposition in favor of defendants on plaintiff’s claim for non-economic losses finding plaintiff failed to show the injury affected her general ability to lead her normal life. However, the court did find a factual dispute existed regarding plaintiff’s claim of permanent serious disfigurement based on her surgical scar. The plaintiff in this case sustained a shoulder injury, including a partial tear of the rotator cuff and a possible aggravation of a prior shoulder problem. In granting defendant summary disposition, the trial court first found the shoulder injury may have been incurred in an earlier auto accident. However, it also found that even if plaintiff could establish the injury was related to the second accident, plaintiff failed to show the injury affected her general ability to lead her normal life. In affirming, the Court of Appeals noted that although plaintiff indicated that she no longer has the energy she had before the accident, she is capable of performing all the activities she performed before the accident. Moreover, although plaintiff was under doctor-imposed restrictions for four weeks, they had been lifted. In this regard, the court stated:
“Here, plaintiff was not working at the time of the 2003 accident. When asked the impact that her shoulder injury had on her lifestyle, plaintiff replied that she has a scar and that the mobility in her right arm is no longer fluid. She also testified that her stamina has decreased and that she does not have as much energy as she did before the 2003 accident. Plaintiff stated that on a regular day, she performs ‘basically the same things’ that she was doing before the 2003 accident, but that she is exhausted by 5:00 p.m. while doing those same activities. She testified that she is able to assist with the laundry, cooking, and gardening, and is able to read and use her computer. Plaintiff also testified that she had been painting the walls of her house ‘a lot.’ In addition, she reopened her day care center in approximately April or May 2004. Thus, based on plaintiff’s own testimony, any injuries suffered in the 2003 accident did not affect her general ability to lead her normal life. Although plaintiff testified that she has less energy than she did before the accident, she also admitted that she was able to perform the same functions that she was able to perform before the accident. In addition, plaintiff’s right arm was in a sling for only two weeks following her surgery, and the doctor restricted plaintiff from lifting with her right arm for only four weeks after the surgery. Accordingly, the accident did not affect her general ability to lead her normal life, and the trial court properly granted summary disposition on this claim. . . .”
Although the court affirmed the trial court’s ruling that plaintiff failed to show that she sustained a serious impairment of body function, it found that a factual dispute did exist with regard to plaintiff’s claim her surgical scar constituted a permanent serious disfigurement. In reversing on this issue, the court reasoned:
“We do find that a factual dispute exists with regard to the claim of permanent serious disfigurement based on the surgery scar. Whether a scar is a permanent serious disfigurement depends on the scar’s physical characteristics rather than its effect on a plaintiff’s ability to lead a normal life. . . . Whether a scar is serious is a question to be answered by resorting to common knowledge and experience. . . . A hardly discernible scar does not meet the statutory threshold. . . . A court, not a jury, determines whether a permanent serious disfigurement exists unless there is an outcome-determinative factual dispute concerning the nature and extent of the person’s injuries. MCL 500.3135(2)(a). The nature of the injury, in the context of a claim of permanent serious disfigurement, relates to the requirement that it be serious and permanent. Here, taking into consideration the scar’s physical characteristics, along with common knowledge and experience, and viewing all of the documentary evidence in a light most favorable to plaintiff, we hold that reasonable minds could differ regarding whether the scar is serious. Therefore, a factual dispute exists. Although defendants argue that plaintiff presented no evidence that the scar was permanent, defendants did not present any evidence that it was not permanent, and defendants had the burden of providing supporting documentary evidence on the issue prior to any requirement that plaintiff submit contrary evidence. MCR 2.116(G)(3) and (4). . . .”
