STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS KENNETH SPIES, Plaintiff-Appellant, UNPUBLISHED June 25, 2002 v No Arenac Circuit Court ALLYN PARKER and JASON PARKER, LC No NI Defendant-Appellees. Before: Fitzgerald, P.J., and Bandstra and K.F. Kelly, JJ. K.F. Kelly, J (concurring) I concur with the majority s decision that the trial court erred by failing to determine whether there existed a factual dispute concerning the nature and extent of plaintiff s injuries and submitting the threshold issue to the jury, but otherwise do not agree that it is unnecessary to remand to the trial court for specific findings In accord with the decision in May v Sommerfield, 239 Mich App 197, 202; 607 NW2d 422 (1999), the trial court must articulate its findings as to whether there exists a factual dispute concerning: (1) whether plaintiff suffered a `serious impairment of body function in light of `the nature and extent of plaintiff s injuries for purposes of MCL (2)(a)(i) or (ii); (2) whether plaintiff has an `objectively manifested impairment which effects `an important body function ; and (3) whether the `extent of plaintiff s impairment effects plaintiff s `general ability to lead [a] normal life. Accordingly, I would remand to the trial court and direct it to clearly articulate its findings in this regard. I further disagree with the conclusion that plaintiff s wound does not necessarily constitute a permanent serious disfigurement. Although plaintiff may wear long sleeves to conceal the scar, that certainly does not make the existence of the seven inch gash less permanent or less disfiguring. On these facts, a trial court could conclude that the seven inch scar on plaintiff s left forearm is indeed a permanent serious disfigurement for purposes of the applicable statute and then place the issue of damages squarely within the jury s province. Antithetically, a trial court could concluded that this seven inch scar on the forearm does not constitute a permanent serious disfigurement for purposes of the statute thus potentially placing the issue before this Court on appeal. Unless and until the latter occurs, it is not for this Court to definitively determine whether plaintiff s scar is a permanent serious disfigurement absent a ruling from the trial court on this threshold issue. -1-

2 Accordingly, for these reasons, I would remand to the trial court for its determination on these threshold issues and for a new trial on damages if the trial court makes the requisite findings. See Kern v Blethen-Coluni, 240 Mich App 333, 337; 612 NW2d 838 (2000). /s/ Kirsten Frank Kelly -2-

3 STATE OF MICHIGAN COURT OF APPEALS KENNETH SPIES, Plaintiff-Appellant, UNPUBLISHED June 25, 2002 v No Arenac Circuit Court ALLYN PARKER and JASON PARKER, LC No NI Defendants-Appellees. Before: Fitzgerald, P.J., and Bandstra and Kelly, JJ. PER CURIAM. Plaintiff appeals as of right a jury verdict of no cause of action in this automobile negligence case. We affirm. Plaintiff sought noneconomic damages for injuries he sustained in a single-vehicle accident. At the close of plaintiff s case, defendants moved for a directed verdict. The trial court denied the motion because it found a factual dispute existed regarding whether plaintiff suffered serious impairment of body function or permanent serious disfigurement. The jury found that defendant s negligence proximately caused plaintiff s injury, but that plaintiff s injuries did not meet this no-fault threshold for recovery. Plaintiff asserts that the trial court erred in failing to decide the threshold issue as a matter of law. A tortfeasor is subject to liability for noneconomic damages caused by an automobile accident if the injured party suffers death, serious impairment of body function, or permanent serious disfigurement. MCL (1). Because plaintiff filed his claim in 1999, the 1995 amendments to the no-fault insurance act, MCL et seq., apply. MCL (2). Under those amendments, whether a person has suffered serious impairment of body function or permanent serious disfigurement is a question of law for the trial court if no factual dispute exists concerning the nature and extent of the person s injuries or, if there is a dispute, if it is immaterial to the determination whether plaintiff suffered serious impairment of body function or permanent serious disfigurement. MCL (2)(a); May v Sommerfield, 239 Mich App 197, 201; 607 NW2d 422 (1999). We agree with plaintiff that the trial court erred by failing to determine whether a factual dispute existed regarding the nature and extent of plaintiff s injuries and submitting the threshold issue to the jury. In doing so, the court appears to have relied on DiFranco v Pickard, 427 Mich -1-

4 32; 398 NW2d 896 (1986), which the 1995 amendments to the no-fault act overturned. See Kern v Blethen-Coluni, 240 Mich App 333, 338; 612 NW2d 838 (2000). However, no remand is necessary. Our review of the record found no material conflict between plaintiff s testimony, his doctors testimony, and the testimony of a doctor who provided an independent medical examination. Plaintiff and the doctors testified that plaintiff suffered a comminuted fracture of his left ulna, which required two surgeries to correct, and lacerations to his lower lip. The witnesses agreed that as a result, plaintiff s range of motion in his left arm is limited, he suffers sensitivity to touch and occasional pain in his arm, and he has a six- or seven-inch scar on his forearm. Plaintiff testified that he has resumed nearly all his preinjury activities, although he cannot participate fully in certain sports, and the doctors agreed that no restrictions were necessary on plaintiff s activities. As a result, we need not remand this case to the trial court for a determination whether a material factual dispute existed concerning the nature and extent of plaintiff s injuries. Id. at Whether those injuries constituted either serious impairment of body function or permanent serious disfigurement under the statute presents a question of law. Id. at 341. 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 (7). An important body function is one that affects a person s general ability to live a normal life, which we determine by comparing plaintiff s pre- and post-injury activities. Kern, supra at 340; Miller v Purcell, 246 Mich App 244, ; 631 NW2d 760 (2001). Plaintiff suffered an objectively manifested impairment of an important body function, namely use of his arm. 1 See Kroft v Kines, 154 Mich App 448, 452; 397 NW2d 822, vacated on other grounds 428 Mich 879 (1987). Plaintiff underwent two surgeries to repair the broken ulna and wore casts on his arm for several weeks. Plaintiff s doctor prohibited him from working immediately after the accident, and plaintiff missed several weeks of school while taking narcotic pain medications. Additionally, plaintiff s range of motion is limited, and he suffers occasional pain and sensitivity to touch in his arm. Although plaintiff s injury impaired the use of his arm, the statute further requires that the impairment was serious, meaning that it affected plaintiff s general ability to lead his... normal life. MCL (7). While plaintiff underwent two surgeries to repair his fractured arm, the injury prevented him from performing activities of his daily life for only a few weeks. Plaintiff suffers little residual impairment, specifically a seven- to fifteen-degree loss of pronation in his left arm. Further, he was provided a positive prognosis. We conclude that plaintiff s injuries did not affect his general ability to live his normal life and, consequently, he did not suffer serious impairment of body function. 1 Plaintiff does not argue and did not provide evidence that the injury to his mouth impaired any important body function. -2-

5 Plaintiff also did not suffer permanent serious disfigurement. Whether an injury amounts to a permanent serious disfigurement depends on its physical characteristics rather than its effect on the plaintiff s ability to live a normal life. Kosack v Moore, 144 Mich App 485, 491; 375 NW2d 742 (1985). Plaintiff has a seven-inch scar on his non-dominant arm that he noted could be covered by long sleeves, and a small scar on the inside of his lower lip, unnoticeable in everyday encounters. We do not doubt that these scars are permanent, but they do not constitute serious disfigurements for purposes of the statute. In light of these conclusions, we need not address plaintiff s remaining claims. We affirm. /s/ Richard A. Bandstra I concur in result only. /s/ E. Thomas Fitzgerald -3-