Serious Impairment of Body Function

Written by Joseph Collison

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Court: Michigan Court of Appeals ( Unpublished Opinion )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.

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.