Case: Lee v. Cooley
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Swartzle, Sawyer, and Markey

Plaintiff argued that the trial court erred in granting Defendant’s Motion for Summary Disposition because she met the threshold requirements of MCL 500.3135(1) to maintain an action for noneconomic tort damages. She asserted that she had shown an objectively manifested impairment that affected her general ability to lead her normal life, including her ability to walk with her daughter for exercise, to engage in everyday household chores, and to regularly travel between her children’s homes in Michigan and her brothers’ homes in Ohio.

Plaintiff argues that the trial court erroneously relied upon the physical therapist’s treatment note stating that plaintiff’s injuries had resolved, when Dr. Ruoff’s affidavit and continued treatment of plaintiff’s complaints contradicted that physical therapist’s note. Plaintiff also argues that the trial court inappropriately applied a temporal requirement to its analysis of whether plaintiff suffered a serious impairment of body function.

The trial court relied on the treatment notes from plaintiff’s physical therapy as evidence that by two and a half months after the accident the effects of the accident on plaintiff’s neck and back injuries had resolved.  However, “the statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on the person’s general ability to live his or her normal life.”  McCormick v Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010).

To the extent that the trial court based its grant of summary disposition to defendant upon the length of time that plaintiff’s accident-related injuries impacted plaintiff’s general ability to lead her normal life, the trial court erred in failing to find a genuine issue of material fact as to whether plaintiff’s neck and back injuries qualified as a serious impairment of body function.

Plaintiff testified that she experienced significantly worse pain after the accident and her son testified that she was able to perform daily household chores before the accident, but that she was unable to perform those same chores after the accident.  Plaintiff’s testimony also established that traveling between Traverse City and Ohio was a large part of her life before the accident, and she was unable to continue traveling between those two locations after the accident.  Because a genuine issue of material fact existed as to whether the neck and back injuries suffered by plaintiff in the accident affected her ability to lead her normal life in her normal manner of living, the trial court erred in granting defendant’s motion for summary disposition.

Case: Orwig v. Farm Bureau Gen. Ins. Co. of MI

Court: Michigan Court of Appeals ( Unpublished Opinion )

Judges: Per Curiam Murray, Fort Hood, and Gleicher

A serious impairment of body function is defined as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”  MCL 500.3135(5).4  In McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010), the Michigan Supreme Court held that “three prongs . . . are necessary to establish a ‘serious impairment of body function’: (1) an objectively manifested impairment (2) of an important body function that (3) affects the person’s general ability to lead his or her normal life.”  “[A]n ‘objectively manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” Id  “[W]hen considering an ‘impairment,’ the focus ‘is not on the injuries themselves, but how the injuries affected a particular body function.’ ”  Id. at 197 (citation omitted).  With regard to the second prong, a body function will be considered “important” depending on its “value,” “significance,” or “consequence” to the injured person.  Id. at 19.  The third prong requires that the impairment of an important body function “affect[ ] the person’s general ability to lead his or her normal life.”  Id. at 200.  This is a subjective inquiry and “requires a comparison of the plaintiff’s life before and after the accident.”  Id. at 202.

In this case, plaintiff has presented evidence to satisfy the first prong of the McCormick analysis.  Specifically, the record evidence reflects that following the accident, plaintiff suffered several “objectively manifested impairment[s] of body function[s]” MCL 500.3135(5), including a posterior left hip dislocation, a left acetabular (hip socket) fracture, left knee injury, a right ankle sprain, a laceration of his head, a closed head injury, a left rib strain, and a variety of contusions and abrasions.

Plaintiff testified that he has experienced impaired body functions that are important to him. Specifically, following the accident, plaintiff’s ability to engage in athletic races and competitions, a key part of his life, was greatly impacted, and he was no longer able to participate in recreational activities of bowling and riding his motorcycle.  Accordingly, plaintiff presented evidence to meet the second prong of MCL 500.3135(5).

The record evidence also supports plaintiff’s contention that his ability to lead his normal life was affected by the objectively manifested impairment of an important body function.  MCL 500.3135(5).  Before the accident, plaintiff and his wife would participate in a bi-monthly bowling league, but he has had to refrain from this activity because he is unsure of whether his hip will withstand the activity.  Plaintiff gave this same testimony with regard to riding his motorcycle, because he is concerned that his hip will not “hold up” while riding his 700 pound motorcycle.  Additionally, before the accident, plaintiff would participate in 10 athletic races in a year, but after the accident he has only participated in “maybe a couple a year.”  Also, plaintiff now uses ice packs regularly and takes over-the-counter pain relievers after his physical activity.

Therefore, the record evidence, viewed in the light most favorable to plaintiff, establishes that plaintiff’s individual “capacity to live his pre-incident manner of living was affected, and the third prong of [MCL 500.3135(5)] is satisfied.”