Author(s): Edward Freeland

Volume XX, No. 3 January 14, 2008

COURT OF APPEALS SETS FORTH GUIDELINES FOR SERIOUS IMPAIRMENT ANALYSIS FOR PLAINTIFF INVOLVED IN MULTIPLE MOTOR VEHICLE ACCIDENTS

In Benefiel v Auto-Owners Ins Co, COA No. 273664, ___ Mich App ___ (2007), released December 27, 2007, the Court of Appeals addressed the issue of the time frame to consider for purposes of comparing the pre and post accident lifestyle of a plaintiff who had been involved in multiple accidents when determining whether that plaintiff had sustained a serious impairment of body function. Plaintiff, Robert Benefiel was involved in two motor vehicle accidents approximately one year apart (February 13, 2002 and February 8, 2003). In the second accident, Mr. Benefiel was struck by an underinsured motorist and after settling with the tortfeasor (with Auto-Owners’ consent) instituted this lawsuit for underinsured motorist benefits.2

In the first motor vehicle accident, Mr. Benefiel sustained injuries to his neck, back and shoulder. While undergoing physical therapy for these injuries, Mr. Benefiel was involved in the second motor vehicle accident. He continued physical therapy for neck, back and shoulder problems and on October 24, 2003, Mr. Benefiel underwent a diskectomy and spinal fusion at C5-6 and C6-7. For purposes of this appeal, Auto-Owners did not contest the existence of an objectively manifested injury that could be traced to the second motor vehicle accident. As such, for purposes of this appeal, the Court could consider as established, the first three steps of the Kreiner multi-step analysis, (i.e., 1) there was no factual dispute concerning the nature and extent of plaintiff’s injury or, if there was a factual dispute, that it was not material to the determination of whether one has sustained a serious impairment of body function; 2) whether an important body function had been impaired; and 3) whether the impairment was objectively manifested).

The remaining issue was whether the injury sustained in the second accident affected Mr. Benefiel’s general ability to lead his normal life. In considering this, Mr. Benefiel maintained that the proper inquiry was to compare his pre and post accident lifestyle not by focusing on the time between the first and second accidents but rather, by focusing on the 55 years of living that he had engaged in prior to the second accident. In particular, Mr. Benefiel maintained that contrary to the defendant’s contention, his neck and shoulder pain worsened after the second accident and the fact that he underwent a cervical diskectomy and fusion following the second accident is evidence that the second accident significantly affected his general ability to lead his normal life. Conversely, Auto-Owners asserted that Mr. Benefiel’s life immediately before the second accident as compared to his life immediately after the second accident should be the focal point. It was Auto-Owners’ position that Mr. Benefiel’s lifestyle after the second accident was not appreciably different from his lifestyle following the first accident. Specifically, Auto-Owners argued that Mr. Benefiel’s testimony clearly demonstrated that he was already disabled as a result of the first accident and that his ability to lead his normal life after the first accident had not been affected as a result of the second accident.

In determining the time frame to consider, the Court of Appeals noted that Kreiner did not provide a temporal directive limiting inquiry to a review of plaintiff’s life immediately before a second accident as compared to one’s life immediately after a second accident. By the same token, however, Kreiner did not suggest that a Court consider the entire span of a plaintiff’s life before the second accident. Rather, the Kreiner Court stated:

“We do not require that ‘every aspect of a person’s life must be affected in order to satisfy the tort threshold . . .’ Rather, in a quite distinct proposition, we merely require that the whole life be considered in determining what satisfies this threshold, i.e., whether an impairment “affects the person’s general ability to lead her or her normal life.”

The Court of Appeals found that Kreiner required a fact intensive inquiry as to what constituted a plaintiff’s “whole life” at the time of a second motor vehicle accident in order to determine whether that accident affected the course of the plaintiff’s “normal life”. In doing so, the Court is required to consider a plaintiff’s injuries, functional deficiencies and activity limitations existing before the second motor vehicle accident as they may have a direct effect on what constitutes a plaintiff’s “normal life”. However, when faced with a multiple accident scenario, plaintiff’s “normal life” may not be necessarily impacted or significantly impacted by prior injuries separate from the second accident.

By illustration, the Court of Appeals considered two hypothetical plaintiffs. One plaintiff sustained an injury in a motor vehicle accident which was “plainly capable of healing” such as a simple fracture to the leg. While this fracture was healing, this plaintiff sustained exacerbating injuries to the leg in a second motor vehicle accident. Review of this plaintiff’s “whole life” should not be limited to the time frame following the initial injury because this plaintiff lost the ability for his leg to recover completely without a residual impairment that would affect his functional abilities and life activities once he completely heals. In this scenario, the plaintiff’s “whole life” should be understood to encompass a time frame sufficient to determine the state of this plaintiff’s “normal” life before sustaining the first injury and should not include the limitations associated with those injuries as those are not this plaintiff’s usual or “normal” limitations.

In the second hypothetical, the plaintiff sustained an injury in the first motor vehicle accident which was not capable of complete recovery such as a severed leg. Thereafter, this plaintiff was involved in a second motor vehicle accident sustaining injuries. Contrary to the prior example, a review of this plaintiff’s “whole life” will necessarily concern the time frame following the initial injury where he lost his leg as, due to the permanency and completeness of the first injury, this plaintiff lost no opportunity for full recovery. Consideration of this plaintiff’s “normal life” must encompass the time frame after the initial injury and would include only those functional abilities and activities that he was capable of performing after losing his leg.

Upon review of the record, the Court of Appeals found that the injuries sustained by Mr. Benefiel in the first accident fell within the continuum between the injuries presented in the Court of Appeals’ examples. Unlike the severed leg, Mr. Benefiel’s initial injury was not a permanent injury that was physically incapable of healing. However, Mr. Benefiel’s injuries were also unlike a simple fracture to the leg that had an extremely great likelihood of completely healing to pre- accident status resulting in no residual impairment.

The evidence before the Court of Appeals suggested that the second accident imposed a medical regime on Mr. Benefiel that made completing the course of treatment from the first accident, as well as full recovery from the injuries sustained in the first accident, physically impossible. Therefore, as a direct result of the second accident, Mr. Benefiel lost all opportunity to completely heal and become pain free after the first accident without being burdened by further complications or any additional conditions he sustained in the second motor vehicle accident. The Court went on to state that while it was impossible to know whether Mr. Benefiel would have suffered any residual impairment from his neck, back and shoulder injuries sustained in the first accident had he had the opportunity to complete his full treatment program, there was no evidence in the record suggesting that the injuries Mr. Benefiel sustained in the first accident resulted in a catastrophic, permanent, residual impairment physically incapable of healing. Therefore, the Court of Appeals concluded that a review of Mr. Benefiel’s “whole life” in order to determine his “normal” preaccident lifestyle should not be limited to the time frame following the first accident. In doing so, the Court of Appeals found that Mr. Benefiel sustained a serious impairment of body function, however, remanded this matter to the Trial Court for determination of the causation issue.

PRACTICE TIP

While it is always necessary to differentiate between a plaintiff’s “normal life” prior and subsequent to a motor vehicle accident, the determination of that segment of a plaintiff’s life in which this review takes place requires a separate analysis when that plaintiff has been involved in multiple accidents. This will require careful consideration of plaintiff’s a pre-existing injuries to determine whether they were capable of healing or not capable of a full recovery. If the former and if plaintiff has lost the opportunity to recover completely and experience no residual impairment that would affect his/her functional abilities and life activities, then consideration of the “whole life” should include plaintiff’s “normal” life before sustaining the first injury. If the latter, however, the focus should be on the time frame following the first accident and consideration would include only those functional abilities and activities plaintiff was capable of performing following the first accident.

The Benefiel case also provides a good summary of the multi step inquiry outlined in Kreiner to determine if a plaintiff has sustained a serious impairment of body function. If you would like a copy of the Benefiel case or questions regarding this holding, please contact Edward Freeland at (248) 641-7600, ext. 253 or at efreeland@garanlucow.com.

EXCULPATORY RELEASES

The Michigan Court of Appeals recently decided an interesting case involving exculpatory releases. An exculpatory release is a release of liability in advance of engaging in defined conduct. Such a release is used frequently by businesses in which physical activity is involved, such as Little Leagues, high school hockey teams, boating and rafting trips and in the case of McCoy v Kelly’s Harley Davidson, Inc, Court of Appeals Docket No. 273047, released April 27, 2007, enrollment in a motorcycle safety course.

An exculpatory release constitutes risk management in advance by asking the participant to sign a release of liability before the activity is undertaken. This type of “advance release” constitutes a contract and so the McCoy court examined the exculpatory release in a comprehensive manner utilizing contract principles.

In the McCoy case, it appears that during the safety instruction, the plaintiff rode her motorcycle into a brick wall sustaining serious orthopedic injuries.

The trial court had granted defendant’s motion for summary disposition and the Court of Appeals affirmed. Plaintiff argued that the release was invalid because it was not supported by sufficient consideration. While consideration is required to form a contract, consideration is adequate when it is a legal detriment to the defendant, which induced the plaintiff’s promise to release the defendant from liability and the plaintiff’s promise to release the defendant from liability induced the defendant to suffer for the detriment. The Court of Appeals found that the instruction, during which the defendant furnished the plaintiff with services and equipment, was sufficient consideration to support the release.

The plaintiff then moved to a second argument claiming that the exculpatory release was against public policy. The Court of Appeals held that, in general, parties are free to contract at their will so long as the particular contract does not violate public policy. The court found that it is not contrary to the public policy of the State of Michigan for a party to contract against liability for damages caused by one’s ordinary negligence. It cited the case of Skotak v Vic Tanny International Inc, 203 Mich App 616 (1994) for that proposition.

The plaintiff also argued that the contract should not be used to defeat its claim that defendants were grossly negligent. The appellate court defined “gross negligence” as “conduct so reckless so as to demonstrate a substantial lack of concern for whether an injury results”. The court could not find that merely instructing the proper operation of a motorcycle or having a barrier wall at the perimeter of the motorcycle course would constitute gross negligence.

Lastly, the plaintiff argued that the defendants violated the Michigan Consumer Protection Act by causing a probability of confusion or misunderstanding. The Court examined the language of the exculpatory release and found that it contained the words “any and all claims, demands, causes of action, or losses of any kind” and that the release language was clear and unambiguous. As the court found no evidence of fraud, coercion, or mistake in the execution of the release, the court found that the release was valid and applied to these circumstances.

Exculpatory releases constitute a powerful tool for the use of businesses in controlling losses and claims. Such loss prevention measures as exculpatory releases are encouraged.

ILLEGAL ALIENS AND MICHIGAN DRIVER’S LICENSE

The Michigan Attorney General recently entered the political fray over illegal aliens and national security in Michigan. In Opinion #7210 issued December 27, 2007, Attorney General Mike Cox overruled a 1995 Attorney General Opinion #6883 that allowed resident illegal aliens to obtain Michigan driver’s licenses. In the earlier Opinion, then Attorney General Frank Kelley relied upon a United States Supreme Court decision in Plyler v Doe, 457 US 202 (1982) that struck down on equal protection grounds a Texas law limiting free public schools to U.S. citizens and legal aliens. The court held equal protection was applicable to all “persons” rather than just citizens or residents.

The 2007 Attorney General Opinion cited “recent developments in state and federal law, as well as the changing imperatives of national security since OAG No. 6883 was issued”. The Attorney General also referenced the “Real ID Act of 2005″ with new federal requirements on state issued driver’s licenses. Among the requirements is that the state require proof of lawful status in the United States. This Opinion may be an attempt to avoid conflict between state and federal law on the issuance of driver’s licenses.

Attorney General Opinion #7210 specifically sidestepped the recent illegal alien decision in the no fault context in Cervantes v Farm Bureau (see Law Fax, Vol. XVIII, #45, October 18, 2006). That decision held that illegal aliens could be “domiciled” in Michigan for no fault insurance purposes. The Attorney General noted that the No Fault Act has its own definitions and that “domicile” is determined by common law factors which do not require citizenship or legal status.

The Attorney General Opinion interpreted the Motor Vehicle Code definition for resident as “every person who resides in a settled or permanent home or domicile with the intention of remaining in the state”. According to the Attorney General, this definition requires that a person be a “permanent resident”. The Attorney General then went on to explain that an illegal alien cannot qualify as a permanent resident as that status requires a lawful presence.

The Motor Vehicle Code allows the Secretary of State to refuse to issue a driver’s license to “a non-resident, including, but not limited to, a foreign exchange student”. MCLA 257.303(1)(h). Under the earlier Attorney General Opinion, legal immigration status was not required to establish residency. The new interpretation will allow Michigan to comply with the Real ID Act of 2005 when it issues a Michigan driver’s license. A Michigan driver’s license will then qualify as a recognized form of identification under federal guidelines for airport security and border crossings. The Secretary of State may now require a birth certificate or voter identification card the next time you renew your driver’s license.

Although a driver’s license address is one of the common law factors for determining “domicile”, the Attorney General was careful to limit his opinion to an interpretation of “permanent resident”, rather than “domicile”. This avoids any direct conflict with the published Court of Appeals decision in Cervantes.