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McCarthy v Lipps-Carbone; (COA - UNP; 8/11/2016; RB # 3561)


Michigan Court of Appeals; Docket # 326715; Unpublished
Judges Riordan, Saad and M.J. Kelly; Non-Unanimous, Per Curiam; Judge Kelly dissenting
Official Michigan Reporter Citation: Not Applicable; Link to Majority OpinionLink to dissenting opinion 

Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)]
Causation Issues [§3135]

Not Applicable

In this non-unanimous unpublished per curiam Opinion, the Court of Appeals held that summary disposition was properly granted for defendant in this negligence action because plaintiff failed to prove that she suffered any physical injuries in the auto accident with plaintiff, as required by MCL 500.3135.

Defendant's vehicle rear-ended plaintiff's vehicle as plaintiff sat in traffic at a stop sign. Plaintiff brought a negligence action against defendant, claiming the accident exacerbated and aggravated her pre-existing physical and psychological injuries sustained in a prior automobile accident. Defendant moved for summary disposition, arguing that plaintiff had not established that defendant's negligence caused her injuries and, had she established causation, plaintiff did not show that she suffered a serious impairment of body function under §3135. The trial court ruled that plaintiff failed to present any evidence that she sustained any physical injuries as a result of the accident and granted defendant's motion.

The Court of Appeals affirmed, finding that plaintiff did not establish a genuine issue of material fact as to whether defendant's conduct caused her injuries. In this regard, the Court said:

"Here, plaintiff failed to present specific factual evidence that establishes 'but for' defendant's actions, plaintiff would not have been injured. It is undisputed that plaintiff suffered from preexisting physical and psychological conditions stemming from a 2003 automobile accident. Specifically, these conditions included neck, back, and psychiatric problems."

In reviewing plaintiff's medical history, the Court of Appeals said it appeared that plaintiff suffered from the same symptoms after the accident as she had before the accident. According to the Court:

"It is true that '[r]egardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.' ... However, ... [t]here is no evidence that the pain plaintiff experienced after the accident was actually caused by defendant's actions. And there is no evidence that any of plaintiff's treating physicians concluded that her problems were caused by the June 2, 2013, accident."

The Court of Appeals further explained that plaintiff failed to introduce any affidavits from her treating physicians stating that, in their professional opinion, the accident exacerbated or aggravated her existing symptoms. In this regard, the Court observed:

"Importantly, plaintiff failed to introduce any supporting evidence indicating that her treating physicians disagreed with Dr. Lee's conclusion. Thus, we hold that plaintiff failed to present sufficient evidence that defendant's actions were a cause in fact of her injuries."

Therefore, because plaintiff did not establish that defendant was the cause in fact of her injuries, she was also unable to demonstrate how defendant's actions were the proximate or legal cause of those injuries, the Court of Appeals concluded.

In his dissenting opinion, Judge Kelly said:

"[Defendant] did not depose or otherwise address the potential testimony by the numerous medical professionals listed on [plaintiff's] witness list; thus, she did not properly support her motion on causation in this alternate manner. ... Because [defendant] did not properly support her motion for summary disposition on the ground that there was no evidence that the accident caused [plaintiff] to suffer an injury, the trial court erred when it granted [defendant's] motion on that basis."

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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