Law Fax Volume XXVIII, No. 10, April 7, 2016

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Volume XXVIII, No. 10, April 7, 2016        

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

From the Editor: Sarah Nadeau

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THE COURT OF APPEALS AFFIRMS GRANTING SUMMARY DISPOSITION ON
SERIOUS IMPAIRMENT THRESHOLD BASED ON MCCORMICK STANDARD

By Nicolette S. Zachary

In Andzelik, et al v Willard, et al, unpublished per curiam opinion of the Court of Appeals (Docket No. 324281, 2/11/2016), the Court of Appeals affirmed a trial court’s decision granting summary disposition based on its conclusion that the plaintiff failed to demonstrate that any alleged injury she sustained from a motor vehicle accidNent affected her ability to lead her normal life. Under the standard set forth in McCormick v Carrier, 487 Mich 180, 193; 795 NW2d 517 (2010), the evidence showed that there was no appreciable difference in the plaintiff’s normal life before and after the accident, and therefore, the plaintiff’s alleged injuries in the subject accident did not affect her ability to lead her normal life.

This appeal arose out of third party automobile negligence action resulting from an automobile accident on July 4, 2012 in an apartment complex parking lot. The plaintiff was driving through the parking lot when the defendant driver backed out of a parking spot and struck the back passenger side of the plaintiff’s passing vehicle.

Plaintiff filed suit alleging she sustained a “serious impairment of body function” within the meaning of MCL 500.3135. Defendant filed a motion for summary disposition arguing that plaintiff had failed to make a threshold showing that any injury she sustained in the accident affected her general ability to lead her normal life. The trial court agreed and granted summary disposition in favor of defendant. Plaintiff appealed.

The sole issue on appeal was the third prong of the McCormick test i.e. whether the plaintiff’s injuries affected her “general ability to lead her normal life.“ The Court of Appeals, citing McCormick, noted that an impairment affects a person’s ability to lead his or her normal life if it has “an influence on some of the person’s capacity to live in his or her normal manner of living,” which requires a comparison of the plaintiff’s life before and after the accident. This inquiry is fact specific and must be decided on a case-by-case basis.

The Andzelik Court found there was no measurable difference between the plaintiff’s normal life pre-accident and post-accident. Plaintiff had a substantial pre-accident medical history of multiple conditions, including fibromyalgia, neck pain, shoulder pain, hip and back pain, arm pain and numbness, migraine headaches, endometriosis, pneumonia, frequent sinusitis and bronchitis, jaw pain, ear pain, asthma, arthritis in both knees, osteoarthritis of the cervical spine, thyroid problems, anxiety, depression, panic disorder, and post-traumatic stress disorder. She had also been involved in a prior motor vehicle accident 15 years earlier. She had been on pain medication for many years prior to the subject accident, and received pain injections in her shoulders and back. She also had a cervical discectomy and knee surgery in 2009. In January 2010, a box fell on her head, after which she reported right arm pain, numbness in the first three digits of her right hand, and left-sided neck stiffness.

Following the July 4, 2012 accident, plaintiff testified that she had worsening pain in her neck, arm, leg, and back, which was different than the pain she had prior to her cervical spine surgery. However, she waited four days to see a doctor. During subsequent visits to various doctors, plaintiff generally reported symptoms other than neck and back pain and did not attribute those symptoms to the July 4, 2012 accident. It was not until 9 months later, when plaintiff saw the surgeon who performed her cervical spine surgery, that her post-accident records note an injury to her neck and back from the subject accident which was deemed “a complete disruption” of the prior fusion. The surgeon attributed the cause of the “disruption”, or significant aggravation of the “disruption”, to the subject accident and recommended surgery, which plaintiff declined. She treated with a holistic  doctor in Florida since 2013.

The plaintiff testified that as a result of the subject accident, she does not participate in recreational activities such as going out to eat, going for walks, fishing, playing pool, dancing, watching her children bowl, playing bingo, crocheting, or any activity requiring her to sit for more than 10-15 minutes. However, she does not need assistance with self-care. She claimed to need assistance with household chores, but her prior records showed that she needed such assistance prior to the July 2012 accident. She also testified that she traveled to Michigan from Florida as a passenger by car – straight through 20-22 hours – with approximately 7-8 stops. She also was able to sit for her deposition for about 1 hour and 20 minutes without a break. There was no evidence that she participated with any frequency in the various recreational activities she mentioned pre-accident, other than fishing.

The plaintiff’s pre-accident life was generally sedentary with plaintiff being unemployed and on disability, and it remained so after the July 2012 accident. In fact, the Court of Appeals noted that the plaintiff’s medical condition appeared to have improved after her 2013 move to Florida. Therefore, the Court of Appeals affirmed the trial court’s ruling granting summary disposition and holding that the plaintiff failed to meet the threshold for serious impairment of body function under MCL 500.5135.

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