STATE OF MICHIGAN COURT OF APPEALS KIRK HANNING, Plaintiff-Appellant, UNPUBLISHED May 20, 2008 v No. 278402 Oakland Circuit Court MARTY MILES COLLEY and DUMITRU LC No. 2006-076903-NF JITIANU, Defendants-Appellees. Before: White, P.J., and Hoekstra and Smolenski, JJ. PER CURIAM. Plaintiff Kirk Hanning appeals as of right the trial court s order dismissing this case for failure to file an amended complaint within the time specified by the court. Because we conclude that the trial court erred when it dismissed Hanning s suit with prejudice, we reverse and remand for further proceedings. This case is being decided without oral argument under MCR 7.214(E). I. Facts and Procedural History In January 2004, defendant Marty Colley struck the rear end of Hanning s car. At the time of the accident, Colley was driving a car owned by defendant Dumitru Jitianu. In August 2006, Hanning sued Colley and Jitianu for injuries that he sustained in the accident. Hanning s complaint alleged that Colley was liable for damages caused by his negligent operation of the car and that Jitianu was liable based on his ownership of the car. See MCL 257.401(1). Hanning alleged that he suffered certain specific injuries including injuries to his back and neck but also asked for other damages to the extent that the damages are recoverable under the Michigan No-Fault Insurance Act. Furthermore, Hanning alleged that his injuries constituted a serious impairment of an important body function within the meaning of MCL 500.3135(7). In March 2007, defendants moved for summary disposition under MCR 2.116(C)(10). Defendants argued that Hanning did not suffer a serious impairment of body function and, therefore, did not meet the threshold for noneconomic damages under Michigan s no-fault laws. See MCL 500.3135(1). In response to defendants motion, Hanning argued that his injuries met the serious impairment threshold. In addition, Hanning argued that, even if the court were to conclude that his injuries did not meet the threshold, he was still entitled to recover excess -1-
economic damages under MCL 500.3135(3)(c). For that reason, Hanning further argued, summary disposition of his entire claim would be inappropriate. In its opinion and order, the trial court concluded that Hanning s injuries did not meet the serious impairment threshold. For that reason, it concluded that Hanning was not entitled to noneconomic damages. In addition, the trial court rejected Hanning s argument that he could still recover excess economic damages under MCL 500.3135(3)(c). The trial court explained that Hanning s claim that an individual is allowed to bring suit... for excess economic damages without meeting any threshold... is insufficient.... Further, the court noted that the argument goes well beyond the scope of [defendants ] motion and was so cursory that it should be deemed abandoned. Nevertheless, the trial court gave Hanning 14 days to move for amendment under MCR 2.118(A)(2). Shortly after the court entered its opinion and order, Hanning moved for permission to amend his complaint to include a claim for excess economic damages. At a hearing held on May 16, 2007, the trial court indicated that Hanning knew or should have known about the claim for economic damages when he filed his original complaint and stated that amendment of the complaint now would prejudice defendants. Further, the court indicated that Hanning was engaged in dilatory tactics. Notwithstanding this, the trial court gave Hanning one week to amend his complaint, but conditioned the court s approval on Hanning s agreement to pay every red cent of defendants attorney fees from this moment on. After Hanning failed to file an amended complaint within the week time limit, the trial court dismissed Hanning s case with prejudice. This appeal followed. II. Analysis On appeal, Hanning argues that his original complaint adequately alleged a cause of action for negligence with both economic and noneconomic damages. Based on this, Hanning argues that the trial court should not have required him to amend his complaint to state a claim for economic damages. We agree. This Court reviews questions of law de novo. Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007). This Court also reviews a trial court s decision on a motion for summary disposition de novo. State Farm Fire & Casualty Co v Corby Energy Services, Inc, 271 Mich App 480, 482; 722 NW2d 906 (2006). Finally, this Court reviews a trial court s discretionary decisions for abuse. Borowsky, supra at 672. A court abuses its discretion when it selects an outcome that is not within the range of reasonable and principled outcomes. Id. Under Michigan s fact-based pleading system, a complaint is sufficient if it contains a statement of the facts... on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend. MCR 2.111(B)(1); see also Iron Co v Sundberg, Carolson & Associates, Inc, 222 Mich App 120, 124; 564 NW2d 78 (1997). It is clear that Hanning s complaint adequately alleged each of the elements of an ordinary negligence action based on Colley s driving and Jitianu s ownership of the car driven by Colley. See Case v -2-
Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000) (noting the elements of a negligence action); MCL 257.401(1). Further, although our Legislature has abolished tort liability arising from the ownership, maintenance, or use... of a motor vehicle except as to certain enumerated areas, see MCL 500.3135(3), 1 it has not elected to impose heightened pleading requirements for actions involving motor vehicles. Indeed, Hanning did not even have to cite the statutory provisions authorizing his claim. See Rymal v Baergen, 262 Mich App 274, 301 n 6; 686 NW2d 241 (2004). Nevertheless, where a plaintiff fails to allege facts that establish the right to maintain an action premised on the negligent operation of a motor vehicle such as a threshold injury or the existence of excess economic damages, it may be appropriate for a trial court to grant summary disposition under MCR 2.116(C)(8). But this is not such a case. Hanning clearly alleged that his injuries constituted a serious impairment of body function and further placed defendants on notice that he was asking the court to award [o]ther damages to the extent recoverable under the no-fault laws. Although Hanning s complaint might have been more precisely stated, it adequately alleged a cause of action premised on the negligent operation of a motor vehicle and placed defendants on notice that they may be held liable for both the noneconomic damages permitted under MCL 500.3135(1) and the excess economic damages permitted by MCL 500.3135(3)(c). Because the trial court s decisions concerning Hanning s need to amend his complaint were based on its erroneous belief that Hanning s original complaint did not adequately allege excess economic damages under MCL 500.3135(3)(c), we conclude that the trial court abused its discretion when it required Hanning to seek leave to amend and then later permitted amendment only on condition that Hanning be liable for defendants attorney fees. See Bynum v ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002) (noting that [w]here the trial court misapprehends the law to be applied, an abuse of discretion occurs. ). Therefore, we vacate the trial court s orders of May 16 and May 24, 2007. Moreover, although Hanning has not directly challenged the trial court s grant of summary disposition in favor of defendants, under our authority to grant further or different relief as the case may require, see MCR 7.216(A)(7), we conclude that this error also necessitates partial reversal of the trial court s grant of summary disposition in favor of defendants. Defendants moved for summary disposition of Hanning s claims on the ground that he failed to establish that he suffered a serious impairment of body function. See MCL 500.3135(1). In support of this motion, defendants presented evidence that Hanning s injuries did not affect his general ability to lead his normal life. See MCL 500.3135(7). But they did not challenge Hanning s claim for other damages permitted under the no-fault laws or otherwise present any evidence that Hanning was not entitled to excess economic damages. See MCL 500.3135(3)(c). Nevertheless, the trial court determined that summary disposition of Hanning s entire cause of action was warranted. 1 We note that the provisions of MCL 500.3135(3)(a) through (d) are not causes of action that must be separately pleaded. Rather, they are exceptions to the abolition of tort liability premised on the ownership, maintenance or use of a motor vehicle codified at MCL 500.3135(3). Hence, where an exception applies, the underlying cause of action will remain either an intentional tort such as battery or trespass or a tort based on ordinary negligence. -3-
As Hanning pointed out to the trial court, even if the trial court agreed with defendants contention that Hanning had not suffered a threshold injury, defendants would only be entitled to partial summary disposition of Hanning s claim. 2 A plaintiff is not required to prove a threshold injury in order to recover excess economic damages. Ouellette v Kenealy, 424 Mich 83, 85-86; 378 NW2d 470 (1985). Because Hanning s complaint clearly encompassed both the noneconomic and excess economic damages proximately caused by Colley s negligence, the trial court could not grant summary disposition of his entire complaint on the basis of a failure to establish a threshold injury alone. See MCL 500.3135(1) (stating that the threshold applies only to noneconomic damages). Instead, the trial court should have granted summary disposition in defendants favor to the extent that Hanning sought noneconomic damages and permitted Hanning to proceed with his claim to the extent that it was based on the excess economic damages permitted by MCL 500.3135(3)(c). See MCR 2.116(C)(10). III. Conclusion For the reasons stated, we vacate the trial court s orders of May 16 and May 24, 2007. In addition, we reverse the trial court s grant of summary disposition in favor of defendants to the extent that the grant precluded Hanning from pursuing excess economic damages as permitted by MCL 500.3135(3)(c), and remand this matter for further proceedings consistent with this opinion. 3 We do not retain jurisdiction. /s/ Michael R. Smolenski 2 Because defendants motion did not establish a basis for granting summary disposition of Hanning s entire claim, we cannot agree with the trial court s conclusion that Hanning abandoned this aspect of his claim for failing to more thoroughly brief it in response to defendants motion. Instead, the initial burden was on defendants to show that they were entitled to summary disposition of Hanning s entire claim, see Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), which they did not do. Hence, the burden never shifted to Hanning to demonstrate that there was an issue of fact on the existence of excess economic damages. Id. 3 Hanning has not challenged the trial court s determination that he failed to establish a threshold injury under MCL 500.3135(1). Therefore, we express no opinion as to the propriety of that determination. Further, nothing in this opinion should be read to preclude defendants from moving for summary disposition on the basis that Hanning has not suffered the type of damages permitted by MCL 500.3135(3)(c). See, e.g., Ouellette, supra at 87-88 (holding that excess economic damages are limited to those types of damages permitted by MCL 500.3107, which do not include loss of earning capacity. -4-
STATE OF MICHIGAN COURT OF APPEALS KIRK HANNING, Plaintiff-Appellant, UNPUBLISHED May 20, 2008 v No. 278402 Oakland Circuit Court MARTY MILES COLLEY and DUMITRU LC No. 06-076903-nf JITIANU, Defendant-Appellees. Before: White, P.J., and Hoekstra and Smolenski, JJ. WHITE, P.J. (concurring). Conceding that plaintiff s complaint could be read as including, but did not clearly assert, a claim for excess wage loss, plaintiff s answers to defendant Jitanu s discovery requests, filed in October, 2006, put defendants on notice that plaintiff would be claiming lost income, and might be calling named experts and offering exhibits to support that claim. Similarly, plaintiff s deposition testimony in November of 2006 supported this claim. Additionally, plaintiff s case evaluation summary, filed at the end of March, 2007, for the mid-april case evaluation, clearly set forth a claim for excess wage loss. Under these circumstances, I conclude that the court abused its discretion in finding in May, 2007, that plaintiff had engaged in dilatory tactics, and that defendants would suffer substantial prejudice if the amendment were allowed. I also agree with plaintiffs that MCR 2.118(A)(3) did not provide the court with authority to require that plaintiff pay, as a condition of the amendment, all defendants reasonable attorney fees from that point forward, including for additional discovery and trial. The rule provides for reimbursement for additional expenses, including reasonable attorney fees, that would have been unnecessary had the request for amendment been filed earlier. I fail to see how trial attorney fees would be affected by the timing of the amendment. Lastly, plaintiff cannot now be faulted for declining to file the amended complaint. At the hearing, the court stated that it was denying the motion to amend, and then stated that if plaintiff was willing to pay every red cent of reasonable attorney costs from this moment on to keep the case alive, then he could proceed with the case and file the amendment. The court s written order states that the Motion is granted solely upon the Plaintiff agreeing to reimburse the Defendant for all reasonable attorney fees incurred following the date of this Motion, including discovery, motion practice, and trial. Because plaintiff did not agree to pay the fees, -1-
it was reasonable to simply appeal the dismissal, rather than file the amendment and refuse to pay the attorney fees. /s/ Helene N. White -2-
STATE OF MICHIGAN COURT OF APPEALS KIRK HANNING, Plaintiff-Appellant, UNPUBLISHED May 20, 2008 v No. 278402 Oakland Circuit Court MARTY MILES COLLEY and DUMITRU LC No. 2006-076903-NF JITIANU, Defendants-Appellees. Before: White, P.J., and Hoekstra and Smolenski, JJ. HOEKSTRA, J., (dissenting). After being injured in an automobile accident, plaintiff filed a complaint against defendants, alleging negligence and claiming that his injuries constituted a serious impairment of body function. The trial court granted summary disposition to defendants on the basis that plaintiff s injuries did not meet the serious impairment threshold. Thereafter, plaintiff indicated that he wished to pursue an excess economic damages claim. Because the trial court found that the claim was not pleaded and that plaintiff s failure to plead the claim earlier constituted inexcusable delay pursuant to MCR 2.118(A)(3), it ordered plaintiff to file an amended complaint and awarded reasonable attorney fees to defendants from that point forward. When plaintiff failed to timely file the amended complaint, the case was dismissed. This appeal ensued. Plaintiff s sole claim on appeal is that he should not have been required to amend his complaint and face the sanction of MCR 2.118(A)(3) because he was laboring under the belief that his original complaint adequately stated a claim for excess economic damages, and [he] forwarded the claim on multiple occasions. On appeal, decisions concerning the meaning and scope of pleadings are reviewed for an abuse of discretion. Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992). Initially, I reject plaintiff s assertion that his subjective belief is relevant to the issue on appeal. On its face, plaintiff s complaint is one for negligence. Consequently, I am not persuaded that the trial court abused its discretion in concluding that plaintiff failed to plead a claim for excess economic damages by requesting other damages in the damages paragraph of the negligence count of his complaint. Further, I find plaintiff s reliance on his answers to interrogatories, deposition testimony, and case evaluation summary to be misplaced. None of -1-
these necessarily converts what is, on its face, a negligence case into one for excess economic loss. I would affirm. /s/ Joel P. Hoekstra -2-