STATE OF MICHIGAN COURT OF APPEALS BERNICE RICHMOND, Plaintiff-Appellant, UNPUBLISHED August 12, 2008 v No. 278177 Genesee Circuit Court GARY W. STROUP and BERNICE L. LONG- LC No. 06-084311-NI STROUP, Defendants-Appellees. Before: Markey, P.J., and White and Wilder, JJ. PER CURIAM. Plaintiff appeals as of right an order granting defendants motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse. This action arises out of injuries sustained by plaintiff in an automobile accident with defendant, Bernice L. Long-Stroup. Long-Stroup, while operating defendant Gary Stroup s automobile, pulled out of a parking lot without yielding to oncoming traffic, and collided with the front passenger side of plaintiff s automobile. Plaintiff sustained fractures of a rib, her left wrist and right ankle in the accident. The circuit court granted defendants motion for summary disposition, which argued solely that plaintiff s injuries did not affect the course of her normal life. On appeal, plaintiff argues that she presented sufficient evidence to raise a genuine issue of material fact regarding whether the injuries affected her ability to live her normal life. We agree. On appeal, this Court reviews a trial court s determination regarding a motion for summary disposition de novo. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists. Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001). Summary disposition is appropriate only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. MacDonald, supra, p 332. Under the no-fault act, a person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person -1-
has suffered death, serious impairment of body function, or permanent serious disfigurement. MCL 500.3135(1); Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A 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. MCL 500.3135(7); Kreiner, supra at 127-128. Therefore, to meet the requisite threshold, the impairment of an important body function must affect the course or trajectory of a person s entire normal life. Id. at 130-131. The court must examine the plaintiff s whole life before and after the accident. Then, the court must assess the significance of any affected aspects on the course of the plaintiff s overall life. Kreiner, supra at 132-133. The following nonexhaustive list of objective factors may be of assistance in evaluating whether the plaintiff's general ability to conduct the course of his normal life has been affected: (a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. [Id. at 133.] The extent of a residual impairment is not established by self-imposed restrictions based on real or perceived pain. Id. at 133 n 17; McDanield v Hemker, 268 Mich App 269, 282-283; 707 NW2d 211 (2005). However, a self-imposed restriction may be considered where it is not based on pain, but rather, because the plaintiff is physically incapable of performing the activity. McDanield, supra at 283. An impairment of short duration may constitute a serious impairment of body function if its effect on the plaintiff s life is extensive. Williams v Medukas, 266 Mich App 505, 508; 702 NW2d 667 (2005), citing Kreiner, supra at 134. Plaintiff claims that her injuries have affected the trajectory of her normal life with respect to limitations following the accident. The accident occurred on January 11, 2006. Plaintiff was taken by ambulance to the emergency room, where her wrist was set. Plaintiff testified that she required and received personal attendant care for nine months following the accident. She testified that she needed assistance bathing, dressing herself, and doing her hair, and could not cook or clean. Because of her rib fracture, she could not lie on her side for three months. Further, plaintiff was in and out of casts and braces for her ankle before she underwent ankle surgery on August 28, 2006, and was again in casts for several months after the surgery. Medical records submitted below establish that plaintiff was in a nonweight bearing cast and had to use crutches until October 6, 2006. Because of her ankle injury alone, plaintiff was in casts from the time of the accident in January 2006 until late November 2006, approximately 11 months. Dr. Susan Mosier-LaClair, one of plaintiff s treating doctors following the accident, disabled her from housework and caring for her personal needs until January 31, 2007. The disability certificate Dr. LaClair signed stated that patient [plaintiff] is disabled from doing: Housework as housework involves bending, lifting, twisting and prolonged standing as required by changing linens, making beds; washing floors, sinks, bathtubs, toilets, dusting low objects; polishing furniture; moving furniture; picking up objects off floors; carrying garbage; caring for pets, etc. [and] -2-
Caring for the patient s personal needs which includes bending, twisting, lifting, prolonged standing by bathing the patient; dressing the patient, driving the patient; cooking for the patient; fetching, carrying and lifting things for the patient, etc. [Emphasis in original.] Plaintiff testified at her March 6, 2007 deposition (approximately 14 months postaccident) that her wrist and ankle continue to give her problems. She testified that before the accident she planted flower gardens, but can no longer do so because she cannot dig or stoop to plant. She testified that she planted in 2005 but did not in 2006. Plaintiff testified that she still cannot lift heavy pots and that her husband continues to do the cooking, as he has since the accident. Plaintiff testified that although she can push a vacuum cleaner with her right hand, she cannot lift and/or twist it. She testified that she can only grocery shop for small items, like bread, because lifting heavy items causes her pain, and that her husband must therefore do most of the grocery shopping. At her deposition, plaintiff was wearing a wrist brace prescribed by a doctor, which she testified helped maintain her wrist steady and helped to reduce pain. Plaintiff also testified that because of her injuries she cannot stand for one hour without resting because her ankle gets stiff and numb. She testified that before the accident she led prayer service at her church every Sunday, and sang in the choir, which required standing for more than one hour. She cannot lead prayer service anymore because it requires an hour of standing, and no longer sings in the choir for the same reason. The evidence submitted below sufficiently supported that plaintiff was limited in her ability to care for her personal needs, to perform housework, and to engage in activities that were important to her and integral to her life before the accident, including leading prayer service at her church, singing in the church choir, and gardening, for more than one year following the January 11, 2006 accident, i.e., until at least January 31, 2007. As to employment, plaintiff testified at deposition that before the accident she worked as a dispatcher at MTA, and typed for eight to ten hours a day. She testified that she did not return to work at MTA after the accident because she could not type for any length of time because of her left wrist injury and consequent pain, and that her typing speed had decreased from 70 wpm to 20 wpm. Appended to plaintiff s response to defendants motion for summary disposition was a prescription form from Dr. Dass s office stating that plaintiff left old job due to distal radius [fracture] and could not type all day 8-10 hours. Other medical records submitted below establish that the doctors plaintiff treated with after the accident on various occasions disabled plaintiff from working, including until October 6, 2006 because of her ankle surgery. Plaintiff testified at her deposition that she had been working part-time as an insurance sales agent since approximately April 2006. She testified that in her new job, which is part-time, she does not go into the office every day, works from home some days, and that there is less typing involved than at MTA. Plaintiff testified that she had formerly worked as an insurance sales agent for two -3-
other insurers and had an agent s license. She also testified that she was able to perform her job as a part-time insurance sales agent. 1 The record supports that plaintiff left her job at MTA because she could no longer type 8-10 hours a day. The record supports that plaintiff needed to obtain different employment as a result of the injuries she sustained in the accident, and that, to that extent, her employment, her work life, was affected. 2 That plaintiff managed to work part-time in a different job beginning around April 2006 does not alter our conclusion. Plaintiff provided evidence supporting that her ability to care for her personal needs, and to do housework (and activities involving lifting, bending, twisting and prolonged standing), and her work life were seriously affected by the injuries she suffered, and the consequent surgery and casts and crutches. We thus conclude that plaintiff established that her general ability to conduct the course of her entire normal life was affected from the date of the accident, January 11, 2006, until at least January 31, 2007. See Williams, supra at 508, citing Kreiner, supra at 134 (impairment of short duration may constitute a serious impairment of body function if its effect on plaintiff s life is extensive). Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Jane E. Markey /s/ Helene N. White 1 Plaintiff s affidavit, filed after she was deposed, stated that her husband had to help her with her sales agent responsibilities, and did so by driving her to clients homes, and helping her in and out of the car. The circuit court concluded that since plaintiff testified on deposition that she was able to perform her job as a sales agent, her affidavit impeached her deposition testimony. We do not find these statements intrinsically inconsistent. 2 Although plaintiff s complaint alleged that as a result of the accident she lost earnings and would indefinitely, plaintiff did not present evidence in response to defendants motion for summary disposition that her change from full-time work at MTA to part-time work as an insurance sales agent negatively affected her income. -4-
STATE OF MICHIGAN COURT OF APPEALS BERNICE RICHMOND, Plaintiff-Appellant, UNPUBLISHED August 12, 2008 V No. 278177 Genesee Circuit Court GARY W. STROUP and BERNICE L. LONG- LC No. 06-084311-NI STROUP, Defendants-Appellees. Before: Markey, P.J., and White and Wilder, JJ. Judge Wilder (dissenting). I respectfully dissent. Under the no-fault act, tort liability, for noneconomic damages arising out of the ownership, maintenance, or use of a motor vehicle, is abolished, subject to certain well-defined exceptions. MCL 500.3135(1). In other words, [a] person remains subject to tort liability for noneconomic loss arising out of her ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. MCL 500.3135(1) (emphases added); Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). MCL 500.3135(1) evidences a legislative intent that the serious impairment of body function requirement be as significant an obstacle to recovery as that posed by the requirement of permanent serious disfigurement and death. Netter v Bowman, 272 Mich App 289, 305-306; 725 NW2d 353 (2006). A primary goal of the Michigan no-fault act was to abridge the available remedies for auto-negligence, in exchange for first-party insurance protection by articulating the requirements set forth in MCL 500.3135. Churchman v Rickerson, 240 Mich App 223, 229; 611 NW2d 333 (2000). As such, although the no-fault act is generally construed broadly because it is remedial in nature, a liberal construction of 500.3135 is not warranted. Churchman, supra at 228-229. The material facts are not seriously disputed. Dr. David Fernandez, plaintiff s consulting physician in the emergency room, diagnosed a left distal radius fracture. He placed her left arm in a short-arm cast. Plaintiff s right ankle was also fractured, and placed in a splint. Plaintiff also had a broken rib. On January 18, 2006, Dr. Fernandez removed the splint on plaintiff s right ankle and prescribed an air cast. Dr. Fernandez gave plaintiff a disability release from work, for January 18, 2006, to March 20, 2006. Plaintiff saw Dr. A. George Dass on January 30, 2006. He and -1-
plaintiff elected nonoperative management of plaintiff s injuries (an indication of how relatively minor plaintiff s injuries were). Dr. Dass recasted plaintiff s short-arm cast. On February 22, 2006, Dr. Dass removed plaintiff s short-arm cast. Dr. Dass also determined that plaintiff could return to work on March 26, 2006. He did not restrict her activities in any way. Plaintiff began occupational therapy for her left wrist, with Marla Marrs, on February 23, 2006. When plaintiff was discharged from therapy, on June 25, 2006, she reported no wrist pain at rest, and reported her wrist pain level, in an active state, at three (on a scale of one to ten). In the discharge evaluation, Marrs reported that plaintiff could drive, launder clothes, use a keyboard, grip items and manipulate buttons and zippers. She also reported that plaintiff avoids lifting heavy objects. Despite Dr. Dass s release allowing plaintiff to return to work on March 26, 2006, plaintiff quit her MTA job. She explained that her left wrist fracture prevented her from typing at high speeds, for eight to ten hours per day, without feel[ing] the difference. In April 2006, plaintiff began a new part-time 1 position selling life insurance and annuities, which she prefers to her MTA job. At her deposition, plaintiff stated that she is able to complete the tasks required by her new job. But in a subsequent affidavit filed at the hearing on defendant s motion for summary disposition, plaintiff stated that her husband drives her to clients homes to assist her in entering and exiting the car and walking to the doors. On May 22, 2006, plaintiff visited Dr. Dass to report pain in her right ankle, and difficulty wearing high heels. Dr. Dass anticipated that her ankle would suffer a delayed union. He prescribed a walking boot and bone stimulator. He also released her from work until July 24, 2006. When plaintiff continued to report pain to Dr. Dass, on July 19, 2006, he referred plaintiff to Dr. Susan Mosier-LaClair for a surgical consultation. On July 20, 2006, Dr. Mosier-LaClair recommended surgery on plaintiff s right ankle. The surgery occurred on August 28, 2006. On September 8, 2006, plaintiff visited Dr. Mosier-LaClair for a follow-up appointment. In a report to Dr. Raffee, Dr. Mosier-LaClair stated that plaintiff s ankle looks great. After surgery, Dr. Mosier-LaClair provided plaintiff with a disability release from work until October 6, 2006. Afterward, plaintiff was limited to movement with crutches for four additional weeks. In a Disability Certificate to plaintiff s attorneys dated October 27, 2006, Dr. Mosier- LaClair stated that plaintiff was restricted from housework and caring for personal needs that involve[d] bending, lifting, twisting, and prolonged standing, until January 31, 2007. After these restrictions ended, plaintiff testified that she was only instructed to avoid activities that might hurt [her]. 1 Plaintiff s counsel admitted that plaintiff was not working part-time because of physical limitations, but because that was the only position she could find when she voluntarily abandoned the dispatcher position. -2-
At deposition, plaintiff testified that she suffered from pain in her chest, and was unable to lie on her side. But after three months, these problems ceased. For the first nine months postaccident, plaintiff needed assistance to care for herself, and she cannot wear high-heels. She must take breaks, and stretch her ankle, after driving more than two hours. Plaintiff must rest after standing more than one hour. Plaintiff also testified that she continued to take ibuprofen and hydrocodone daily because of the injuries resulting from the accident. But plaintiff s doctors released her from treatment for these injuries, and she need not visit a doctor again unless she experiences physical problems. Residual impairment is not established by self-imposed restrictions based on perceived or even real pain. Kreiner, supra at 133 n 17; McDaniel v Hemker, 268 Mich App 269, 282-283; 707 NW2d 211 (2005). In Kreiner, the plaintiff limited his workday from eight to six hours, could not stand on a ladder for more than twenty minutes, or lift more than 80 pounds, after his accident. Kreiner, supra, at 137. However, these limitations did not prevent him from performing his job. Id. Consequently, the Supreme Court held that his impairment did not affect his overall ability to conduct the course of his normal life. Id. Here too, plaintiff s doctor determined that she could return to her dispatcher position without restrictions, two and one-half months post-accident. Also, when plaintiff completed occupational therapy five months post-accident, her therapist reported, without qualification, that plaintiff could use the keyboard. Still, plaintiff chose to quit her dispatcher position. Because health professionals determined that plaintiff was physically capable of fulfilling her work duties, plaintiff s self-imposed restriction does not establish a serious residual impairment. Kreiner, supra at 133 n 17; McDonald, supra at 282-283. Furthermore, plaintiff had an extensive background in insurance prior to the accident, and stated that she prefers her new insurance position to the dispatcher position. The trial court noted that she had made no claim of difficulty in performing that job in her deposition, and I agree with the trial court that plaintiff improperly attempted to impeach her own deposition testimony on this point by submitting a subsequent affidavit that she needed her husband s assistance to do her insurance job. E.g., Palazzola v Karmazin Products Corp, 223 Mich App 141, 155; 565 NW2d 868 (1997). [A] negative effect on a particular aspect of an injured person's life is not sufficient in itself to meet the tort threshold, as long as the injured person is still generally able to lead his normal life. Kreiner, supra at 137. While I in no way seek to minimize the fact that plaintiff had injuries which caused negative effects on her life for some period of time, I cannot agree with the majority that the course or trajectory of plaintiff s life, considered against the backdrop of [her] preimpairment life, Kreiner, supra at 137, is so different that it affected plaintiff s general ability to conduct the course of her normal life. Id. For the foregoing reasons, I would affirm the trial court s order granting summary disposition in defendant s favor. /s/ Kurtis T. Wilder -3-