Volume XXIV, No. 20, December 4, 2012       


From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin & Simeon R. Orlowski




Court of Appeals Establishes That There May Be a Threshold after All




After the Michigan Supreme Court’s decision in McCormick v Carrier, 487 Mich 180 (2010), many speculated that the concept of  serious impairment of body function threshold was pretty much thrown out the window.  The Supreme Court had adopted language to the point that it could be argued that almost any injury constituted an impairment of a person’s general ability to lead his normal life and, therefore, could constitute a serious impairment of body function.  In three recent unpublished decisions from the Michigan Court of Appeals, the panels seem to recognize that not every injury and/or impairment is going to constitute a serious impairment of body function.

In Khami v Gjonlleshaj (Docket No. 306347 released 10/18/12), the Court of Appeals addressed a case that was actually dismissed by the trial court.  The Plaintiff had suffered a fracture to her non-dominant wrist.  It was casted for a little less than 2 months.  Clearly, this type of injury met the standard for an objective manifestation of injury.  There was also no disputing that the wrist was an important body function.  The question then became:  did the Plaintiff have impairments that affected her general ability to lead his/her normal life.

The Plaintiff argued that she had a serious impairment because she was raising a baby and her injury could present difficulties in feeding the baby and changing its diaper.  However, there was no evidence to support that claim.  Plaintiff also claimed that lifting things might have been affected.  Again, the Plaintiff was unable to present any evidence to support that claim.  The Plaintiff also suggested that her ability to use sign language was affected during her recovery, yet it was found that the Plaintiff, although she had hearing difficulties, did have a hearing aid and that she could adequately hear with the use of the hearing aids.  The Plaintiff testified that her husband and mother assisted her in doing household chores for a short period after the accident, but there was not a lot of detail given with respect to how this changed from her life before the accident.

The Court found the plaintiff did not have a serious impairment and based a lot of its decision on the fact that the Plaintiff failed to present evidence to support her allegations.  Nevertheless, the idea that a fractured wrist to a non-dominant hand could be ruled as the matter of law not to constitute a serious impairment of body function is significant.  Whether the Court would have made such a ruling if there had been competent evidence to support continuing and lingering difficulty and possibly even the development of arthritis or carpel tunnel syndrome is unknown.

The second case addressed by the Court of Appeals was Roach v Lowder (Docket No. 306756, released 10/23/12).  This case actually involved a claim where the trial court had let the issue of serious impairment go to the jury.  The jury ruled that the Plaintiff had not sustained a serious impairment of body function.  On appeal, the Plaintiff asked the Court to rule as a matter of law that he had sustained a serious impairment of body function.  The Court rejected this.

In the case, the Plaintiff claimed the development of cervical facet joint injury.  Some of the findings included bulges in the neck which caused pain not only into the neck but down into the shoulders.  Plaintiff also claimed that she suffered from depression and she was not able to enjoy her recreational activities.  The Defendant had presented testimony from an examining physician who opined that he was not sure that the facet joints were injured in the accident and that there was no reason to restrict the Plaintiff’s activities.

The Court felt that there were questions of fact with respect to the issues of what, if any, of the Plaintiff’s body parts were injured and whether she needed restrictions. This case is important from the standpoint that if you can create a factual dispute on certain aspects of the Plaintiff’s claims, these issues can be submitted to the jury.

The third decision is Lindeblad v Grasman, et al, (Docket No. 306159, released 10/23/12).  In this case the trial court dismissed the law suit finding no serious impairment as a matter of law, but the Court of Appeals reversed and said the issue should go to a jury.  Mr. Lindeblad was claiming neck and back injuries and could not return to unrestricted work for 16 months after the accident and, in fact, took 19 months off  work as a kiln operator.  The doctors gave him a 10 pound lifting restriction.  The plaintiff had given up skiing, basketball, and biking among other hobbies.  The claim was that he had bulging discs in his neck caused by the accident.

In addressing the objective manifestation requirement of the threshold, the Court found that since his bulges could have been a pre existing ailment or could have come from the accident, a question of fact existed.  As for as the impairments, the Court said the jury should decide whether these impairments were enough to meet the threshold.  Not once did the court say that doctor-imposed restrictions of 16 months should be considered a serious impairment of a body function as a matter of law.

The lesson to be learned from these three cases is that the issue of threshold is not dead.  While it is seriously doubtful under the Supreme Court standards enunciated in McCormick that the Courts will ever go so far as they did under the previous standards of Kreiner v Fischer, we do expect there are going to be a few victories here and there.  Whether it is an uncertainty by the appeal courts as to the true meaning of   McCormick or other reasons, the appeals panels seem content to find questions of fact and to allow jurors to resolve this issue.  While things are always a bit more uncertain in front of jurors, your author’s experiences have clearly shown that they have a tendency to be a bit more conservative than Judges and are more likely to rule that an injury does not amount to a serious impairment of body function.  As a result, if questions of fact can exist with respect to the nature and extent of the injuries suffered by the Plaintiff and their claimed restrictions, then trying a case to a jury may not be a bad alternative, especially given some of the demands being made for relatively minor injury claims.






Generally, to avail yourself of the wrongful conduct rule, two hurdles must be overcome.  First, the plaintiff’s conduct must violate a serious penal or criminal statute.  Second, there must be a sufficient causative connection between the illegal activity and the plaintiff’s asserted damages.  The Court of Appeals in James Idziak v Robert Holwerda, D.O. (Docket Number 306750) determined that the defendant overcame these hurdles.

In this case, plaintiff was treated for depression by Dr. Holwerda for many years.  Plaintiff asserted in his complaint that because of Dr. Holwerda’s malpractice, he engaged in a high speed car chase.  As a result of that incident, he was convicted of operating while intoxicated and fleeing a police officer in the fourth degree.  As part of his damages, plaintiff alleged that his reputation was irreparably damaged and that he lost his employment.

The court looked to Orzel v Scott Drug Co., 449 Mich 550 (1995) to determine if plaintiff’s claim for damages was barred by the wrongful conduct rule.  The Supreme Court in Orzel, supra at 558, stated the wrongful conduct rule as follows:

[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.

The court further explained,

To implicate the wrongful conduct rule, plaintiff’s conduct must be prohibited or almost entirely prohibited under a penal or criminal statute.  Orzel, supra at 561.

The Court of Appeals noted that previous cases suggested that operating while intoxicated may not necessarily rise to the level of misconduct serious enough to apply the rule.  But the Court also explained that the felony charge of fleeing a police officer does rise to the necessary level of seriousness.  The Court looked beyond the conviction and noted that the plaintiff nearly struck a bicyclist at 80 miles per hour while trying to elude the police.

Plaintiff tried to avoid the rule by arguing that it only applies where the plaintiff engaged in wrongful conduct specifically with the intent to obtain a benefit from it.  But the Court of Appeals believed that plaintiff did try to obtain a benefit, i.e. avoiding arrest and prosecution.  Finally, the Court determined that all of plaintiff’s damages were connected to his illegal conduct.

Interestingly, the Court of Appeals did not address the statutory wrongful conduct rule contained in MCLA § 600.2955b, which provides,

(1) Except as otherwise provided in this section, the court shall dismiss with prejudice a plaintiff’s action for an individual’s bodily injury or death and shall order the plaintiff to pay each defendant’s costs and actual attorney fees if the bodily injury or death occurred during one or more of the following:

(a) The individual’s commission, or flight from the commission, of a felony.

(b) The individual’s acts or flights from acts that the finder of fact in the civil action finds, by clear and convincing evidence, to constitute all the elements of a felony.

The statute further provides that a felony “means a violation of the law of this State or of the United States that is designated as a felony or that is punishable by death or imprisonment for more than one year.”  MCLA § 600.2955b(7)(b).