Under the Michigan No-Fault, law a person cannot sue a negligent driver for non-economic damages (pain and suffering etc.) unless his or her injury results in: (1) serious impairment of body function; (2) death; or (3) permanent serious disfigurement. MCL 500.3135.   In recent years, Michigan car accident victims have had their cases dismissed due in large part to the Michigan Supreme Court’s misinterpretation of the “serious impairment” element in this statute in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).  These cases have become known as “Kreiner Casualties” because many people with very serious injuries, (e.g. broken bones requiring surgery), have had their cases dismissed before they even get to a jury.  

            In McCormick v. Carrier, unpublished opinion per curiam of the Court of Appeals, decided March 25, 2008 [Docket No. 275888], the Michigan Court of Appeals upheld yet another dismissal of  an injured person’s case involving a serious ankle fracture injury caused by a co-worker who backed a truck over Mr. McCormick’s ankle at work.

            In that case, Mr. McCormick underwent two surgeries and was completely disabled from returning to work for one year. In addition, the evidence showed that his work played a very large role in his life, and he is “at another duty” because his employer did not consider him capable of performing his prior duties.  In addition, his doctor and an independent doctor both found some indication of arthritis in his ankle as a result of his injury.  Mr. McCormick testified that after being disabled for a year his life  is “painful, but normal.”               The Court acknowledged “that painful injuries, such as that sustained by plaintiff in the present case, do not generally disappear over time or necessarily improve with age.”  However, despite these facts, the Court held in a non-unanimous decision ( Judge Davis dissenting)  that Mr. McCormick’s injuries did not affect his “ability to lead his normal life.”  which is part of the test under the “serious impairment of body function” threshold.  In making this determination, the majority provided little analysis or reasoning for its holding.             Unfortunately, Mr. McCormick’s case is only one in a long line of cases where injured people with serious injuries have been denied their day in court because of the Kreiner decision.  However, based upon my review of the case law, until this decision there has never  been an appellate decision (published or unpublished) where the Court has held that Plaintiff who had been disabled from work for a year does not qualify under the serious impairment threshold.  In addition, this case seems to conflict with published case law that which holds that under the Kreiner test,  an impairment need not permanent in order to qualify as a serious impairment of body function.  Thus, the decision was a significant departure from decisions of previous Courts.  In this regard, Judge Davis’ well written dissent illustrates the flaws in the  majority’s decision.

       Under the Michigan No-Fault, law a person cannot sue a negligent driver for non-economic damages (pain and suffering etc.) unless his or her injury results in: (1) serious impairment of body function; (2) death; or (3) permanent serious disfigurement. MCL 500.3135.   In recent years, Michigan car accident victims have had their cases dismissed due in large part to the Michigan Supreme Court’s misinterpretation of the “serious impairment” element in this statute in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).  These cases have become known as “Kreiner Casualties” because many people with very serious injuries, (e.g. broken bones requiring surgery), have had their cases dismissed before they even get to a jury. 

            However, in Donovan v. Metro Plant Service, Inc., unpublished opinion per curiam of the Court of Appeals, decided March 6, 2008 [Docket No. 275373], the Michigan Court of Appeals reversed a trial court’s dismissal of  an injured person’s case involving a serious shoulder injury sustained in an auto accident.  The Court stated that Mr. Donovan’s injuries affected  his “ability to lead his normal life”  which is part of the test under the “serious impairment of body function” threshold.  In making this determination, the Court applied the standards set forth in Kreiner, supra and cleared up many of the inconsistencies in which Kreiner, supra has been applied. 

      In that case, Mr. Donovan required arthroscopic surgery after he injured his shoulder in an auto accident. After the surgery he underwent four weeks of physical therapy. In the one- to two-month period immediately after the surgery, he could not, work, drive, groom and dress himself, perform chores around the house and he was unable to raise his left arm more than six inches away from his thigh. He was generally unable to engage in normal daily activities or his usual routine. Further, he had to sleep in a reclining chair because he could not sleep laying flat. Also, he was also forced to rely on his fiancée, father, and friends to assist him with basic tasks associated with daily living, including the simple task of buttoning his clothes.             

      The Court held that these facts were sufficient enough to show that the impairment affected his “general ability to lead his normal life.”  Notably, the Court held that the No-Fault statute “has no express, and we believe no implicit, time component.”  This decision is important because it reaffirms that a period of impairment of short duration can satisfy the serious impairment test, if the impairment is extensive with respect to the limits it places on an injured persons life.   In this regard the Court stated that “the course or trajectory of a person’s life can be affected, if even momentarily, by a devastating, yet short-lived impairment…”       

This well written decision is a much needed victory for persons injured in auto accidents in Michigan, because it clarifies prior misinterpretations and misapplications of the No-Fault Statute and the Kreiner, supra. decision.