Michigan Supreme Court Reshapes No-Fault Act's Serious Impairment Threshold
McCormick Decision Overrules Kreiner
Grand Rapids, Mich., August 2, 2010 - On July 31 the Michigan Supreme Court issued its long awaited decision in McCormick v Carrier. As was generally anticipated by those who follow the Court, McCormick overruled the 2004 decision in Kreiner v Fischer, which until McCormick was the seminal case construing the No-Fault Act's serious impairment threshold. The McCormick decision is, in total, 113 pages long. The majority opinion is 42 pages. Two concurring opinions total 6 pages. The dissent--authored by Justice Markman and joined by Justices Corrigan and Young--comprises 65 pages.
What follows is our initial assessment of the majority opinion, with a focus on how McCormick changes the serious impairment inquiry. Our intent in providing this e-mail is by no means to provide a comprehensive analysis; it is simply to convey the fundamentals of the new test to you as rapidly as possible. We will, in the next few days, provide a more detailed analysis of the opinion. In the meantime, should you have any questions, please do not hesitate to contact one of our automobile negligence attorneys.
McCormick's interpretation of the "serious impairment of body function" threshold for non-economic tort liability under MCL 500.3135.
1. In the absence of a material factual dispute, the court can decide the serious impairment issue as a matter of law under MCL 500.3135(2)
The question whether the person has suffered a serious impairment of body function should be determined by the court as a matter of law so long as there is no factual dispute regarding "the nature and extent of the person's injuries" that is material to determining whether the threshold standards are met. If there is a material factual dispute regarding the nature and extent of the person's injuries, the court should not decide the threshold issue as a matter of law. The disputed fact does not need to be outcome determinative in order to be material, but it must be "significant or essential to the issue or matter at hand."
2. Three prongs necessary to establish a "serious impairment of body function" under MCL 500.3135(1) and (7)
MCL 500.3135(7) states "serious impairment of body function" means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life. On its face, the statutory language provides three prongs that are necessary to establish a "serious impairment of body function":
(1) an objectively manifested impairment- The common meaning of "objectively manifested" in MCL 500.3135(7) is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an "objectively manifested" impairment is commonly understood as one observable or perceivable from actual symptoms or conditions. When considering an "impairment", the focus is not on the injuries themselves, but how the injuries affected a particular body function. Medical testimony will generally be required to establish an impairment, but not always.
(2) of an important body function- If there is an objectively manifested impairment of body function, the next question is whether the impaired body function is "important." Whether a body function has great "value," "significance," or "consequence" will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person's life.
(3) that affects the person's general ability to lead his or her normal life- Finally, if the injured person has suffered an objectively manifested impairment of body function, and that body function is important to that person, then the court must determine whether the impairment "affects the person's general ability to lead his or her normal life." A person's "general ability" to lead his or her normal life is affected when the injury "influences" some of the person's power or skill, i.e. the person's capacity to lead a normal life. This requires a subjective and fact specific inquiry that must be decided on a case-by-case basis.
Determining the effect or influence that the impairment has had on a plaintiff's ability to lead a normal life necessarily requires a comparison of the plaintiff's life before and after the incident. There are several important points to note with regard to this comparison:
A. The statute merely requires that a person's general ability to lead his or her normal life has been affected, not destroyed. Thus, courts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person's general ability to do so was nonetheless affected.
B. The statute only requires that some of the person's ability to live in his or her normal manner of living has been affected, not that some of the person's normal manner of living has itself been affected. Therefore, while the extent to which a person's general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person's normal manner of living is, there is no quantitative minimum as to the percentage of a person's normal manner of living that must be affected.
C. The statute does not create a 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. While the Legislature required that a "serious disfigurement" be "permanent," it did not impose the same restriction on a "serious impairment of body function."
D. Finally, because the "non exhaustive list of objective factors" adopted by the Kreiner majority is not based in the statutory text, the Kreiner majority erred by adopting that list.
3. Summary of the serious impairment test
First, the court must determine whether there is a factual dispute regarding the nature and the extent of the person's injuries, and, if so, whether the dispute is material to determining whether the serious impairment of body function threshold is met. If there is a material factual dispute, the issue goes to the jury and the court does not decide it as a matter of law. If there is no material factual dispute, then whether the threshold is met is a question of law for the court. In such a case, the court must next determine whether the serious impairment threshold has been crossed. The unambiguous language of MCL 500.3135(7) provides three prongs that are necessary to establish a "serious impairment of body function": (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions); (2) of an important body function (a body function of value, significance, or consequence to the inured person); that (3) affects the person's general ability to lead his or her normal life (influences some of the person's capacity to live in his or her normal manner of living). The serious impairment analysis is inherently fact and circumstance specific and must be conducted on a case-by-case basis. "The Legislature recognized that what is important to one is not important to all...a brief impairment may be devastating whereas a near permanent impairment may have little effect." As such, the analysis does not "lend itself to any bright-line rule of imposition of [a] non exhaustive list of factors," particularly where there is no basis in the statute for such factors.
We will publish a comprehensive summary and analysis of this decision later this week. In the meantime, should you have any questions, please do not hesitate to contact one of our no-fault attorneys.