Volume XXVI, No. 1, January 8, 2014   

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

From the Editor: Sarah Nadeau 





In the unpublished opinion of Kallman v Whitaker (Court of Appeals Number 312457), the Court of Appeals reversed the trial court’s granting of a directed verdict to defendant on the issues of causation and serious impairment of a body function. The facts of the case are quite remarkable. In May of 2001, plaintiff (10 years old at the time), alleged she was injured in a rear-end collision. She was treated and released from the hospital the same day. Plaintiff was asymptomatic until April of 2006, when she slipped and fell on wet grass. After the fall, she had intermittent leg pain that became more consistent and severe. In the five years preceding the slip-and-fall, plaintiff was able to run, play organized basketball, rollerblade, participate in chorale activities, attend church, and more. During this five-year period of time, plaintiff also suffered a broken finger, a broken arm, and an injured big toe. Moreover, in August of 2006, she was involved in another rear-end accident. On October 1, 2006, plaintiff started to experience low back pain.

At trial, plaintiff presented Dr. Bez, a pain specialist, who testified that plaintiff’s herniated discs were caused by the 2001 car accident. The trial court expressed skepticism whether a pain management specialist could offer such an opinion. Nevertheless, Dr. Bez’ testimony was admitted without objection. The trial court eventually granted defendant a directed verdict as to causation because Dr. Bez was a pain management specialist and not an orthopedic surgeon, and because Dr. Bez had not reviewed plaintiff’s pre-2006 medical records. The Court of Appeals, in a state of suspended disbelief, held that the court should not weigh the witness’ credibility when determining whether to qualify the witness as an expert. Accordingly, the Court of Appeals concluded that the trial court erred in taking the causation issue from the jury.

With respect to the issue of whether plaintiff suffered a serious impairment of a body function, the Court of Appeals relied heavily on McCormick v Carrier, 487 Mich 180 (2010). Based upon Dr. Bez’ testimony, the threshold issue could not be determined as a matter of law. There was sufficient evidence for plaintiff to establish (1) an objectively manifested impairment; (2) of an important body function that (3) affects a person’s general ability to lead his or her normal life. The Court of Appeals noted that the defendant did not contest that an MRI is objective evidence. They also noted that the spine is an extremely important part of every person’s body. In determining whether the impairment affected plaintiff’s general ability to lead her normal life, the Court of Appeals stated that it requires a comparison of plaintiff’s life before and after the accident. In making the comparison, it is important to note that a person’s ability to lead his or her normal life must only be “affected, not destroyed.” McCormick, 486 Mich at 202. Amazingly, the Court of Appeals stated that defendant’s arguments that plaintiff can still pursue her chosen profession, work, and attend school full time are without merit.

Finally, the plaintiff asked the Court of Appeals to assign the case to a new trial court because of his pre-judged opinions. The Court of Appeals concluded that disqualification was unnecessary.

This opinion underscores that the threshold requirement has been significantly lowered under McCormick.





Recently, the MCCA released a Pre-Approval Checklist for member insurers to act as a guideline for the types of documents customarily requested from a PIP claims file in order to obtain its approval of a proposed settlement agreement. Of note was an interesting change in the MCCA’s approach to home modifications. In the bulletin, the MCCA advised that home modifications for “ramps, lifts, equipment, and bathroom modifications” which total $30,000 or less do not require pre-approval from the MCCA.

Please note that this change to the MCCA’s pre-approval process only applies to specific home modifications, that being for “ramps, lifts, equipment, and bathroom modifications.” However, modifications to other rooms are not included in the list. Therefore, if the home modifications recommended by the occupational therapist include any modifications to a home other than “ramps, lifts, equipment, and bathroom modifications,” such as modifications to the kitchen or perhaps flooring in the living room and bedrooms, even if the estimate for all of the work is $30,000 or less, MCCA pre-approval of the proposed handling of the claim is still required.

It is always a good idea to have some type of contractual agreement and release drafted by an attorney as it relates to home modifications, even if the modifications performed are for $30,000 or less. This way, insurers can be sure that there is no longer exposure for the specific home modifications provided, at the very least. However, for those limited home modifications that fit the exception, the insurer does not need to have the MCCA first approve the proposed agreement and release as a condition precedent to MCCA reimbursement.





Wishing you the Best for 2014
from your friends at
Garan Lucow Miller, P.C.