Michigan Supreme Court; Docket No.149431
Peremptory Order
Official Michigan Reporter Citation: __ Mich __; Link to Order 
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this peremptory Order regarding the plaintiff's claims for noneconomic loss, the Supreme Court ruled that a newly-submitted affidavit that the plaintiff offered on remand in support of his claim that he had suffered a serious impairment of body function was insufficient to create a question of fact because the affidavit contained nothing but "conclusory allegations" and only referenced physical limitations that plaintiff suffered from prior to his accident.
This case was previously remanded back to the trial court by the Supreme Court for reconsideration of the threshold issue under the McCormick standard. After remand, the trial court found in favor of defendant and held that plaintiff did not offer sufficient evidence to prove that his general ability to lead his normal life had been affected by the accident. In so ruling, the trial court did not make it clear whether it considered a newly-submitted affidavit offered by plaintiff after the remand. On appeal to the Michigan Court of Appeals, the court ruled that the trial court was not required to consider the new affidavit in deciding the matter on remand because the affidavit constituted new evidence that was not submitted during the original proceeding. However, the Court of Appeals acknowledged that the trial judge had the discretion to consider the affidavit. The Court of Appeals then examined the affidavit and held that if the trial court had considered it, the trial court should have denied the defendant's motion for summary disposition because the affidavit created a question of fact on the general ability element. (See RB #3399).
In lieu of granting leave to appeal, the Supreme Court issued this peremptory Order reversing the Court of Appeals decision, reasoning that the affidavit's allegations were merely "conclusory" and therefore were insufficient to create a question of fact. In this regard, the Court explained:
"The trial court was not required to expressly rule on whether the plaintiff’s attempt to expand the record on remand with his affidavit was proper, and even if the affidavit was considered by the trial court, it did not err in determining that summary disposition for the defendants was warranted. When considered in light of the record developed in this case, the affidavit’s conclusory allegations regarding the extent of the plaintiff’s injuries and impairments, nearly all of which the plaintiff suffered prior to the accident in question, were insufficient to create a genuine issue of material fact as to whether the plaintiff’s ability to lead his pre-accident lifestyle was impacted by the 2005 accident."
Notably, in reaching this conclusion, the Supreme Court did not rule that the physical problems referenced by plaintiff in his affidavit were, as a matter of law, insufficient to prove a threshold injury. Rather, the affidavit was simply devoid of any real facts.
