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Volume XXVI, No. 24, October 29, 2014      

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

From the Editor: Sarah Nadeau 

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THE MICHIGAN SUPREME COURT FINDS THAT PLAINTIFF FAILED TO ESTABLISH

A SERIOUS IMPAIRMENT OF BODY FUNCTION

By

Christian Huffman

The Michigan Supreme Court recently issued an Order in the case of Wiedyk v Poisson and Traverse City Leasing, d/b/a Hertz, (Docket No 149431), reversing the Court of Appeals and reinstating the Midland Circuit Court’s grant of summary disposition to the Defendants on the basis that Plaintiff Wiedyk had failed to establish a genuine issue of material fact concerning whether injuries that he sustained in a July 26, 2005, motor vehicle accident impacted his ability to lead his pre-accident lifestyle.

Plaintiff Wiedyk had been in several serious accidents and suffered from substantial pre-existing impairments before the July 26, 2005, motor vehicle accident.  The Midland Circuit Court originally granted summary disposition to the Defendants under the then-applicable threshold standard set forth in Kreiner v Fischer, holding that although Plaintiff Wiedyk had proffered evidence that the motor vehicle accident caused him new injuries, he had failed to proffer any evidence that those alleged new injuries affected the course or trajectory of his already-impaired normal life.

The Court of Appeals affirmed this ruling.  But, the Michigan Supreme Court thereafter overruled Kreiner in McCormick v Carrier, replacing the “course or trajectory” standard with the lower standard that merely requires a showing that accident-related injuries “influence some of the plaintiff’s capacity to live in his or her normal manner of living.”  Thus, the Supreme Court ultimately vacated the lower Courts’ rulings and remanded the matter back to the Midland Circuit Court for reconsideration under the lower McCormick standard.

On remand, Plaintiff Wiedyk proffered a new, self-executed affidavit averring that the new injuries that he allegedly sustained in the July 26, 2005, motor vehicle accident rendered him unable to engage in a host of activities.  Though the Circuit Judge expressed concern about whether the aversions in Plaintiff Wiedyk’s newly proffered affidavit contradicted statements he had previously made to physicians and the Social Security Administration, the Circuit Judge did not specifically mention Plaintiff Wiedyk’s affidavit when he again granted summary disposition in Defendants’ favor.  Instead, the Circuit Judge simply stated that the Supreme Court’s relaxation of the requisite pre- and post-accident lifestyle affect had no impact on Plaintiff Wiedyk’s claim, as Wiedyk had failed to establish any affect whatsoever on his ability to lead his normal life.

The Court of Appeals agreed that McCormick’s overruling of Kreiner would not salvage Plaintiff’s case if only the pre-appeal record were considered, stating that “[n]o real change [in Plaintiff’s general ability to lead his normal life] is simply no real change by any standard.” The Court of Appeals also noted that the Circuit Court was not required to consider Plaintiff Wiedyk’s newly proffered affidavit, but instead had the discretion whether to accept it or preclude expansion of the record.  However, the Court of Appeals went on to note that it was unclear whether the Circuit Court had, in fact, considered only the pre-appeal record, or had considered Plaintiff Wiedyk’s newly proffered affidavit. Reasoning that the new affidavit, if it had been allowed into the record, would tend to show a “significant degradation” of Plaintiff Wiedyk’s pre- and post-accident lifestyle, the Court stated that it could not determine whether the Circuit Court had properly granted summary disposition in Defendants’ favor.  Thus, the Court of Appeals vacated the Circuit Court’s grant of summary disposition and again remanded the case back to the Circuit Court for reconsideration, instructing the Circuit Court to expressly rule on whether the affidavit would be permitted before ruling on the serious impairment issue.

But, the Supreme Court reversed the Court of Appeals decision and reinstated the Circuit Court’s grant of summary disposition to the Defendants.  In doing so, the Court stated that the Circuit Court was not required to expressly rule on whether Plaintiff Wiedyk could expand the pre-appeal record by proffering the affidavit.  More significantly, the Court held that even if the new affidavit were considered, in light of the pre-appeal record, Plaintiff Wiedyk’s “conclusory allegations regarding the extent of [his] injuries and impairments, nearly all of which [he] suffered prior to the accident in question, were insufficient to create a genuine issue of material fact as to whether [Plaintiff Wiedyk’s] ability to lead his pre-accident lifestyle was impacted by the 2005 accident.”

The Supreme Court’s Order in Wiedyk is interesting for several reasons.  For one, the Court’s statement regarding the “conclusory allegations” in Wiedyk’s affidavit being considered in light of the other record evidence can fairly be read as meaning that, even under McCormick, a Plaintiff’s own self-serving allegations regarding the affect that injuries have had on the Plaintiff’s general ability to lead his or her normal life are not sufficient to avoid summary disposition when they are not supported by medical documentation.  This is, of course, consistent with the fact that even the relaxed McCormick standard recognizes that establishing an objectively manifested impairment “generally requires medical testimony.”  Moreover, the Court stated that “nearly all” – but not all – of Plaintiff Wiedyk’s impairments pre-dated the motor vehicle accident which would seem to indicate an acknowledgment by the Court that Plaintiff’s ability to lead his pre-accident lifestyle may have been impacted at least to some degree, and therefore the McCormick decision cannot be read, as some have asserted, to signal that even a minimal impact is sufficient to avoid summary disposition.

 

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Garan Lucow Miller proudly congratulates Nathan Dodson, shareholder in our Detroit office, selected by Michigan Lawyers Weekly as one of the 2014 Up & Coming Lawyers!

The recipients were chosen by a committee, and have for the first 10 years of practice, excelled in their profession and are standouts among their peers. 

Congratulations Nathan!

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Garan Lucow Miller

is hosting a U of M Tailgate

U of M v Indiana

 

When:      Saturday, November 1, 2014
Game Time: 3:30 pm
Tailgate starts: 12:00 pm (Noon)

Where:      Michigan Stadium
1201 South Main Street
Ann Arbor, MI 48104

Tailgate Location:      Hospitality Area C
Enter off of West Stadium Blvd -     Gate 1

Tailgate does NOT include tickets to the game

AT THE TAILGATE THERE WILL BE A RAFFLE FOR 2 SETS (2 TICKETS EACH) FOR THE UPCOMING

U OF M v MARYLAND GAME ON SATURDAY, NOVEMBER 22, 2014

Please RSVP to Eileen Carty at ecarty@garanlucow.com

Hope you can join us!