Michigan Supreme Court; Docket Nos. 124120 and 124757; Published
Opinion by Justice Taylor; 4-3 (Justices Cavanagh, Kelly and Weaver dissenting)
Official Michigan Reporter Citation: 471 Mich. 109, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [3135(7)]
Objective Manifestation Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(1)(2)]
Serious Impairment of Body Function Definition (Cassidy Era: 1983-1986) [§3135(1)]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this deeply divided 4-3 decision, the Supreme Court issued a consolidated opinion interpreting an important phrase in the legislative definition of “serious impairment of body function” contained in §3135(7) of the No-Fault Act and adopted by the Legislature in 1995. That section defines serious impairment of body function as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” The specific issue in Kreiner and Straub was whether plaintiffs’ impairments affected their general ability to lead their normal lives. In Kreiner and Straub, the trial courts ruled that neither plaintiff had sustained an impairment that affected his general ability to lead his normal life. In both cases, the Court of Appeals reversed. In its majority opinion, the Supreme Court reversed the Court of Appeals and found that neither Kreiner nor Straub had sustained an impairment that affected his general ability to lead his normal life and, therefore, both defendants were entitled to summary disposition as a matter of law. Significant aspects of the majority’s opinion are set forth below:
1. Nature of Injuries Sustained – Plaintiff Kreiner sustained some type of low back injury manifested by low back pain and an EMG test that “revealed mild nerve irritation to the right fourth lumbar nerve root. . . .” Kreiner was treated conservatively, infrequently and sporadically over a two (2) year period. His treatment primarily consisted of exercise therapy at home, muscle relaxants and pain pills, a three (3) week physical therapy course and anti-inflammatory medication. Kreiner was never treated at a hospital nor did he undergo any surgery or invasive medical procedures. Before the accident he was a self employed contractor doing assorted home remodeling work. After the accident he claimed he could only work six (6) hours per day as opposed to his normal eight (8) hours per day. Moreover, he claimed he was unable to use a ladder for longer than 20 minutes at a time, could not perform work, could not lift over 80 pounds, could not work for more than one-half mile without resting and could not hunt rabbits but could hunt deer. The Supreme Court noted that Kreiner’s injuries “did not cause him to miss one day of work.” Moreover, with regard to his reduction in work hours, the Supreme Court specifically noted, “Kreiner does not contend, however, that these limitations prevent him from performing his job.” Also in footnote 12, the Court noted that the year following Kreiner’s accident, “was his highest income earning year, including several years before the injuries occurred.”
Plaintiff Straub suffered a broken little finger on his non-dominant hand and injured the tendons in his ring and middle fingers on that hand. He underwent outpatient surgery to repair the tendons but had no specific medical treatment for his broken little finger. He wore some type of immobilizer cast for about a month following the injury to assist healing of the tendons. He took prescription medication for approximately two (2) weeks and completed a physical therapy program. He returned to work as a cable lineman approximately two (2) months after his injury. The Supreme Court noted that at his deposition, Plaintiff Straub testified, “Since returning to work, he was able to perform all his job duties, but sometimes with discomfort.” Straub was also unable to play bass guitar in his rock band for approximately four (4) months but was able to do so after that period and commenting on Straub’s injuries, the Court specifically noted that, according to his own testimony, he could “perform all the activities in which he engaged before the accident. . . .” Like Kreiner, Straub never spent a night in the hospital and had no activity restrictions imposed upon him other than those prior to his return to work.
2. Re-emergence of Cassidy v McGovern – In commenting on the intent of 1995 PA 222 and the statutory definition of serious impairment of body function set forth in section 7 of that Act, the Court, in footnote 8, stated, “As should be evident, and as previous panels of the Court of Appeals have noted, the most uncomplicated reading of the 1995 amendment is that the Legislature clearly rejected DiFranco in favor of Cassidy. See e.g., Jackson v Nelson, 252 Mich App 643, 649-650 (2002); . . . and Miller v Purcell, 246 Mich App 240 (2000).” Based upon this comment it would appear that the majority opinion expresses the conclusion that the 1995 statutory definition of serious impairment embodies the Cassidy threshold and presumably resurrects appellate cases decided during that 48 month period. Assuming this to be true, it would then appear logical that the most restrictive interpretation of the 1995 threshold would be the threshold established by the Supreme Court in Cassidy v McGovern and the Court of Appeals cases decided thereafter.
3. Characterization of Normal Life Test – After expressing the notion that 1995 PA 222 is essentially a return to the threshold of Cassidy v McGovern, the Court, in section IV of its opinion, made a series of comments characterizing the essence of the threshold phrase which requires that an impairment affect the person’s “general ability to lead his or her normal life.” With regard to this aspect of the statutory definition, the Court stated: “Determining whether the impairment affects a plaintiff’s ‘general ability’ to lead his normal life requires considering whether the plaintiff is ‘generally able’ to lead his normal life. . . . determining whether a plaintiff is ‘generally able’ to lead his normal life requires considering whether the plaintiff is, ‘for the most part’ able to lead his normal life. . . . to ‘lead’ means, among other things, ‘to conduct or bring in a particular course.’ Given this meaning, the objectively manifested impairment of an important body function must affect the course of a person’s life. Accordingly, the effect of the impairment on the course of a plaintiff’s entire normal life must be considered. Although some aspects of a plaintiff’s entire normal life may b interrupted by the impairment, if, despite those impingements, the course or trajectory of the plaintiff’s normal life has not been affected, then the plaintiff’s ‘general ability’ to lead his normal life has not been affected and he does not meet the ‘serious impairment of body function’ threshold. The starting point in analyzing whether an impairment affects a person’s ‘general’ i.e., overall, ability to lead his normal life should by identifying how his life has been affected, by how much, and for how long. Specific activities should be examined with an understanding that not all activities have the same significance in a person’s overall life. Also, minor changes in how a person performs a specific activity may not change the fact that the person may still ‘generally’ be able to perform that activity.”
This characterization of the threshold should be read in conjunction with the Supreme Court’s Order Granting Application for Leave to Appeal in Kreiner, where the Court specifically stated that a plaintiff is not required to show that his impairment “seriously” affects his ability to lead his normal life in order to meet the threshold. In that regard, the Court previously stated “In our judgment, both the circuit court and Court of Appeals erred. Although a serious effect is not required, any effect does not suffice either. Instead the effect must be on one’s general ability to lead his normal life.” See Kreiner v Fischer, 468 Mich 884 (2003).
4. Summary Disposition Decisional Process – The majority also discussed the process trial courts should follow in considering motions for summary disposition on the threshold issue. The Court referred to this as a “multi-step process” which the Court described in the following way, “First, a court must determine that there is no factual dispute concerning the nature and extent of the person’s injuries; or if there is a factual dispute, that it is not material to the determination whether the person has suffered a serious impairment of body function. If a court so concludes, it may continue to the next step. But, if a court determines there are factual disputes concerning the nature and extent of a plaintiff’s injuries that are material to determining whether the plaintiff has suffered a serious impairment of body function, the court may not decide the issue as a matter of law. Second, if a court can decide the issue as a matter of law, it must next determine if an ‘important body function’ of the plaintiff has been impaired. . . . If a court finds that an important body function has in fact been impaired, it must then determine if the impairment is objectively manifested. . . . If a court finds that an important body function has been impaired, and that the impairment is objectively manifested, it then must determine if the impairment affects the plaintiff’s general ability to lead his or her normal life. In determining whether the course of plaintiff’s normal life has been affected, a court should engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the accident as well as the significance of any affected aspects on the course of plaintiff’s overall life. . . .
The following nonexhaustive list of objective factors may be of assistance in evaluating whether the plaintiff’s ‘general ability’ to conduct the course of his normal life has been affected: (a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (3) the prognosis for eventual recovery. This list of factors is not meant to be exclusive nor are any of the individual factors meant to be dispositive by themselves. For example, that the duration of the impairment is short does not necessarily preclude a finding of a ‘serious impairment of body function.’ On the other hand, that the duration of the impairment is long does not necessarily mandate a finding of a ‘serious impairment of body function.’ Instead, in order to determine whether one has suffered a ‘serious impairment of body function,’ the totality of the circumstances must be considered, and the ultimate question that must be answered is whether the impairment ‘affects the person’s general ability to conduct the course of his or her normal life.’”
In articulating this “multi-step process,” the Court made a very important observation in footnote 19 that serious impairment determinations must be determined on a case-by-case basis and therefore these cases are not easily subject to bright light tests that will decide the issue. In this regard, the Court stated, “We agree with the dissent that the ‘serious impairment of body function’ inquiry must ‘proceed on a case-by-case basis because the statute requires inherently fact-specific and circumstantial determinations.’”
5. Important Body Function – The Court did not define the statutory element “important body function.” However, the Court did make the following observation regarding this element: “It is insufficient if the impairment is of an unimportant body function. Correspondingly, it is also insufficient if an important body function has been injured but not impaired.” With regard to this observation, the Court did not define an “unimportant body function,” nor did the Court elaborate upon the distinction between an “injury” and “impairment.”
6. Objective Manifestation – The Court also did not define the threshold element of, “objectively manifested.” However, in referencing the objectively manifested requirement, the Court stated, “Subjective complaints that are not medically documented are insufficient.” Prior to the Kreiner/Straub decision, appellate courts had ruled that the definition of objective manifestation as set forth in the case of DiFranco v Pickard continued to apply to cases controlled by 1995 PA 222. Under DiFranco, objective manifestation was defined as something that was “medically identifiable and had a physical basis.” In using the phrase “medically documented” the Court did not indicate whether that concept is something different that the “medically identifiable” test of DiFranco. Moreover, the Court did not suggest that it was embracing the Cassidy era definition of objective manifestation which required proof of an injury that was “subject to medical measurement.”
7. Pervasiveness of the Impairment – In discussing how pervasive an impairment must be on the plaintiff’s general ability to lead his normal life, the Court stated, “. . . the court must engage in an objective analysis regarding whether any difference between plaintiff’s pre- and post-accident lifestyle has actually affected the plaintiff’s ‘general ability’ to conduct the course of his life. Merely ‘any effect’ on the plaintiff’s life is insufficient because a de minimus effect would not, as objectively viewed, affect the plaintiff’s ‘general ability’ to lead his life. . . .” However, in footnote 16 , the Court added this important qualification, “Contrary to the dissent, we do not require that ‘every aspect of a person’s life must be affected in order to satisfy the tort threshold.’ . . . Rather, in a quite distinct proposition, we merely require that the whole life be considered in determining what satisfies this threshold, i.e., whether an impairment ‘affects the person’s general ability to lead his or her normal life.’” Other than these general comments, the majority never attempted to define what specifically comprises a person’s general ability to lead his normal life. In other words, the Court did not articulate specific enumerated “spheres of living,” such as sleeping, eating, exercising, working, family interactions, etc. that constitute a normal life. Moreover, the Court gave no methodology how to prioritize those particular life activities that should be taken into consideration for purposes of determining whether a plaintiff’s general ability to lead his normal life has been affected. Furthermore, contrary to the suggestion in the appellant’s brief, the Court also did not utilize an “activities of daily living” analysis (ADL checklist) to quantify or measure whether a person is generally able to lead his normal life. Rather, the Court seems to say that even though a person’s entire life should be considered, the gravamen of the inquiry is to determine what aspects of a plaintiff’s normal life are significant and important to that plaintiff and then engage in an objective analysis whether there has been something other than a de minimus impact in those areas of living. However, there is nothing in the majority opinion that mandates what specific activities to look at, how many of those activities have to be affected and the precise extent to which they must be affected.
8. Permanency and Duration of Impairment – The majority opinion agrees with long established Michigan threshold law that an injury need not be permanent to be serious. In this regard, the Court stated, “While an injury need not be permanent, it must be of sufficient duration to affect the course of a plaintiff’s life.” With regard to duration, the Court stated, “. . . that the duration of an impairment is short does not necessarily preclude a finding of a ‘serious impairment of body function.’ On the other hand, that the duration of the impairment is long does not necessarily mandate a finding of a ‘serious impairment of body function.’”
9. Extent of Work Disability – Although the majority opinion concluded that neither Kreiner nor Straub had suffered an injury which significantly affected their ability to work, the majority opinion did not specify the extent to which a person’s ability to work must be affected. However, the Court did make it clear that a plaintiff need not be totally unable to work. In this regard, in footnote 23, the majority states; “Contrary to the dissent’s contention, we are not concluding that Kreiner would have to show that he is unable to work at all in order to show that he has suffered a ‘serious impairment of body function.’ Instead, we are simply concluding that, although plaintiff has suffered an impairment that does have an effect on this ability to work, it is not a ‘serious impairment of body function,’ as defined by the Legislature, because plaintiff is ‘generally able’ to work and the course of his normal life is otherwise unaffected. We disagree with the dissent’s suggestion that any effect on one’s ability to work is sufficient to establish a ‘serious impairment of body function.’” In emphasizing the minimal impact on Kreiner’s ability to work, the Court specifically noted, “He continued working as a self-employed carpenter and construction worker and was still able to perform all the work that he did before, with the possible exception of roofing work. His injuries did not cause him to miss one day of work. Kreiner states that he . . . was forced to limit his workday to six hours because he can no longer work eight-hour days. Kreiner does not contend, however, that these limitations prevent him from performing his job.” The majority viewed Straub’s work impairment in a similar way when the Court stated, “The temporary limitations Straub experienced to not satisfy the statutory prerequisites. Considered against the backdrop of his preimpairment life and the limited nature and extent of his injuries, we conclude that Straub’s postimpairment life is not so different that his ‘general ability’ to lead his normal life has been affected.”
10. Verifiable Restrictions – After setting forth its “nonexhaustive list of objective factors,” the majority opinion commented on factor #4 (the extent of any residual impairment), and, in footnote 17, highlighted the importance of doctor imposed restrictions. In this regard, the Court stated; “Self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish this point.” This language would suggest that physician restrictions and expert opinions regarding the extent of residual impairment now have an increased importance in threshold issues.
11. Closed Head Injuries – The majority opinion is totally silent regarding the treatment of closed head injuries under 1995 PA 222, other than the majority’s reference, in footnote 15, to the “closed head injury exception” set forth in §3135(2)(a)(ii) which creates an alternative way for closed head injury cases to avoid summary disposition. In this footnote, the Court cited the statutory exception, which the Court stated, “creates a special rule for closed head injuries by providing that a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed head injuries testifies under oath that there may be a serious neurological injury.” Other than this brief reference, the majority opinion gives little guidance as to how it would impact traumatic brain injury cases.
12. Jury Instructions – The Kreiner/Straub majority decision does not speak to the issue of jury instructions. This is because these two (2) cases were summary disposition cases where the only issue was the propriety of the trial court’s rulings that plaintiffs Kreiner and Straub had not suffered a serious impairment of body function as a matter of law. Therefore, great caution must be exercised when attempting to extract language from the majority opinion and transplant it into a jury instruction.
A vigorous dissenting opinion was written by Justice Cavanagh, who was joined by Justices Kelly and Weaver. The dissenters were sharply critical of the majority opinion for the primary reason that it was judicial legislation that strayed far beyond the traditional “textualist principles” of interpreting legislation without engrafting onto statutory language words and phrases that the Legislature did not utilize.
