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Serious Impairment of Body Function

Written by Joseph Collison

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Court: Michigan Court of Appeals ( Unpublished Opinion )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.”

Constructive Ownership of a Motor Vehicle – PIP

Written by Joseph Collison

MCL 500.3101(1) provides that the “owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance[.]” The statute defines “owner” to include (1) a person “having the use of a motor vehicle, under a lease or otherwise, for a period that is greater than 30 days,” and (2) a person “that holds the legal title to a motor vehicle[.]” MCL 500.3101(2)(k)(i) and (iii).

Under MCL 500.3113, a person is precluded from receiving PIP benefits if, at the time of the accident, he was the owner or registrant of the vehicle involved in the accident and the insurance required under MCL 500.3101(1) was not in effect. As the Court of Appeals recognized in Ardt v Titan Ins Co, 233 Mich App 685, 690; 593 NW2d 215 (1999), the “statutory provisions at issue operate to prevent users of motor vehicles from obtaining the benefits of personal protection insurance without carrying their own insurance through the expedient of keeping title to their vehicles in the names of family members.”

But a motor vehicle may have more than one owner for purposes of the no-fault act. Id. at 691-692. And as long as at least one owner or registrant had the insurance required by MCL 500.3101(1), PIP benefits may be recovered by another owner. Barnes v Farmers Ins Exch, 308 Mich App 1, 8; 862 NW2d 681 (2014). However “when none of the owners maintains the requisite coverage, no owner may recover PIP benefits.” Id. at 8-9.

Policy Exclusions Are Affirmative Defenses Which Must Be Pled

Written by Joseph Collison

“While the burden of proving coverage is on the insured, it is incumbent on the insurer to prove that an exclusion to coverage is applicable.” Pioneer State Mut Ins Co v Dells, 301 Mich App 368. The Appellate Courts have made clear that “[r]eliance on an exclusionary clause in an insurance policy is an affirmative defense.” Shelton v Auto-Owners Ins Co, 318 Mich App 648.

Interpretation of Insurance Policies

Written by Joseph Collison

The interpretation of an insurance policy presents a question of law that is reviewed de novo (from the beginning; all over again). Dancey v Travelers Prop Cas Co, 288 Mich App 1, (2010). “Because insurance policies are contractual agreements, they are subject to the same rules of contract interpretation that apply to contracts in general.” Sherman-Nadiv v Farm Bureau Gen Ins Co of Mich, 282 Mich App 75 (2008). Unambiguous language must be enforced as written. Century Surety Co v Charron, 230 Mich App 79 (1998). A court must “give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.” Klapp v United Ins Group Agency, Inc, 468 Mich 459 (2003).

This holds true for both sides. Clever attempts to parse policy language will not be tolerated.

Statutory Duty of Landlord to Tenant – Snow and Ice

Written by Joseph Collison

MCL 554.139 provides a specific protection to lessees and licensees of residential property in addition to any protections provided by the common law.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). MCL 554.139 states, in relevant part:

(1) In every lease or license of residential premises, the lessor or licensor covenants:

(a) That the premises and all common areas are fit for the use intended by the parties.
Parking lots and sidewalks are “common areas” within the meaning of the statute. Allison, 481 Mich at 428; Benton v Dart Props, Inc, 270 Mich App 437, 443-444; 715 NW2d 335 (2006). A parking lot’s intended purpose is satisfied “as long as the tenants are able to park their vehicles in the lot and have reasonable access to their vehicles.” Allison, 481 Mich at 429. “[T]he intended use of a sidewalk is walking on it.” Benton, 270 Mich App at 444.

Generally speaking, if snow or ice in a parking lot or on a sidewalk (common areas) are avoidable, then the areas are “fit” for the use intended.