Author(s): Caryn Gordon

INJURED PLAINTIFF’S DENTAL INJURY CONSTITUTES A SERIOUS IMPAIRMENT OF A BODY FUNCTION AND A PERMANENT SERIOUS DISFIGUREMENT AS A MATTER OF LAW

A divided Michigan Court of Appeals panel has ruled that a Plaintiff’s tooth injury, which eventually led to an upper dental implant for his top teeth, met both the serious impairment and permanent serious disfigurement thresholds of the No-Fault Act. See Fisher v Blankenship, No 285852 (Released October 22, 2009).

In Fisher, the Plaintiff sustained damage to his front tooth after being involved in a motor vehicle accident. The tooth was replaced with a single implanted post and crown, but due to the existing condition of Plaintiff’s surrounding teeth, this was only a temporary measure. Plaintiff had admitted that he had “some dental issues” before the accident and had been told that he would eventually need dentures to replace his top front teeth. Three years after the accident, Plaintiff chose to have his remaining upper teeth removed and to use an upper dental implant for his teeth.

Plaintiff admitted that no physicians or dentists had restricted his current activities. He only missed a few days of work due to dental work. There was no significant impact on his usual social life. He claimed the dental work altered his appearance by making his top lip protrude a bit further out, but admitted that he was told that his new teeth looked better than his originals. He also testified that the process of removing and replacing the denture each day was painful, frustrating, and upsetting due to problems he has with a severe gag reflex.

Claiming to suffer a serious impairment of a body function and permanent serious disfigurement, Plaintiff filed this lawsuit against the Defendants seeking damages. Defendants filed a summary disposition motion arguing that Plaintiff’s injury did not satisfy the statutory threshold of serious impairment or permanent serious disfigurement. The trial court, however, denied Defendants’ motion. Defendants then filed an interlocutory appeal, which was granted by the Court of Appeals. In a 2-1 published decision, the Court of Appeals affirmed the trial court’s decision and determined that Plaintiff’s injury satisfied the statutory threshold of serious impairment and permanent serious disfigurement as a matter of law.

The majority, Judge Michael Kelly and Judge Douglas Shapiro, concluded that no factual dispute existed regarding the nature and extent of Plaintiff’s injury. In reaching this conclusion, the Court put strong emphasis on Defendant’s position that there is no material dispute concerning Plaintiff’s injury. Defendant did not dispute that Plaintiff lost his tooth in the accident and three years later chose to have his remaining upper teeth removed in order to use an upper dental implant for his top teeth.

After concluding that there was no dispute that Fisher lost all of his teeth as a result of the accident, the Court determined that Fisher’s overall ability to lead his normal life had been impacted by the accident. The Court reasoned that Fisher cannot eat without the denture implant, he occasionally drools, and the dentures have altered his speech. The Court determined that Plaintiff’s tooth loss will affect every aspect of his life to some degree and will affect certain specific activities even more. Ultimately, the Court held that Fisher’s loss of teeth and the concomitant need for a prosthetic constitutes a serious impairment of body function.

The Court then addressed Plaintiff’s permanent serious disfigurement claim and concluded that “the need for such a prosthetic is evidence that the disfigurement itself is so serious that one cannot reasonably expect Fisher to appear in public without it.” The Court further reasoned that taking into consideration the effect of Plaintiff’s injury on his appearance with regard to the full spectrum of his life activities, his injury amounts to a permanent serious disfigurement.

Judge Kirsten Kelly wrote a strong dissent. Judge Kelly recognized, as Defendants argued, that no factual dispute existed regarding the nature and extent of Plaintiff’s injuries. Judge Kelly further opined that considering the undisputed facts of this case, there is no genuine issue of material fact that Plaintiff did not suffer a serious impairment of body function. She noted that Plaintiff himself admitted his injury did not impact his ability to perform the normal tasks of daily life and that no physician or dentist had restricted his activities in any way. Judge Kelly reasoned

that “objectively viewed, and based upon plaintiff’s own testimony, there is no difference between the plaintiff’s pre- and post-accident lifestyle [that] has actually affected the plaintiff’s ‘general ability’ to conduct the course of his life,” and, therefore, he did not suffer a serious impairment of a body function as a matter of law.

Judge Kelly further concluded that Plaintiff’s injury does not constitute a permanent serious disfigurement as a matter of law because Fisher’s disfigurement cannot be considered serious. Judge Kelly reasoned that an objective review of the physical characteristics of the disfigurement shows that Plaintiff’s condition is quite far from serious because the disfigurement he had suffered has been fixed such that the impairment is no longer a deformity.

In short, Judge Kelly put it best in her dissenting opinion: “Particularly with respect to the issue of serious impairment, the majority is clearly not happy with the requirements of Kreiner, supra. However, until modified or changed by either the Legislature or our Supreme Court, it remains the law and this Court is required to apply it in an intellectually honest manner.”

Garan Lucow Miller handled this appeal for the Defendants. It has not yet been decided whether this decision will be appealed to the Michigan Supreme Court.

FORUM SHOPPING

While we often assume that all first party no fault cases are brought in the Circuit Court, we should not forget that in addition to the Probate Court’s exclusive jurisdiction detailed in MCLA 700.1302, that MCLA 700.1303 provides, in relevant part, as follows:

(1) In addition to the jurisdiction conferred by section 1302 and other laws, the court has concurrent legal and equitable jurisdiction to do all of the following in regard to an estate of a decedent, protected individual, ward, or trust:

(a) Determine a property right or interest.

(g) Impose a constructive trust.

(h) Hear and decide a claim by or against a fiduciary or trustee for the return of property.

(i) Hear and decide a contract proceeding or action by or against an estate, trust or ward.

(2) If the probate court has concurrent jurisdiction of an action or proceeding that is pending in another court, on the motion of a party to the action or proceeding and after a finding and order on the jurisdictional issue, the other court may order removal of the action or proceeding to the probate court. If the action or proceeding is removed to the probate court, the other court shall forward to the probate court the original of all papers in the action or proceeding. After that transfer, the other court shall not hear the action or proceeding, except by appeal or review as provided by law or supreme court rule, and the action or proceeding shall be prosecuted in the probate court as a probate court proceeding.

(3) The underlying purpose and policy of this section is to simplify the disposition of an action or proceeding involving a decedent’s, a protected individual’s, a ward’s, or a trust estate by consolidating the probate and other related actions or proceedings in the probate court.

The concurrent jurisdiction of the probate court was expanded with the adoption of the Estates and Protected Individuals Code (EPIC), which became effective in 2000. Prior to that, under the Revised Probate Code, there was a statutory requirement that the matter to be removed to the probate court must be “ancillary” to the settlement of the estate. Under EPIC, the “underlying purpose and policy of this section [providing concurrent jurisdiction] is to simplify the disposition of an action or proceeding involving a decedent’s, a protected individual’s, a ward’s, or a trust estate by consolidating the probate and other related actions or proceedings in the probate court.” MCLA 700.1303(3). Rather than a requirement that the matter be ancillary to the settlement of the estate, it need only be related to the estate and the matters to be litigated fall within the general list of subject matters over which the probate court has concurrent jurisdiction under EPIC [a partial list appears above in MCLA 700.1303(1)].

As a practical matter, if you are involved in a PIP case with a claimant that is a minor, a ward, or a Personal Representative of an Estate, you should bear in mind your option to proceed in the probate court, rather than the circuit court. Particularly, when already involved in the circuit court, keep in mind your option of filing a motion to have the matter removed to probate court. Perhaps the probate court might see your case in a different light?

NO DUTY TO PROTECT AGAINST CHOCOLATE FROSTING

CONTRIBUTOR – THOMAS G. HERMAN3

In an unpublished opinion issued just in time for the holidays, the Michigan Court of Appeals has held it is not negligent to serve chocolate cake. The Court also held that chocolate cake does not constitute a hazardous condition for premises liability purposes.

West v Auction Company of America, (Court of Appeals Docket No. 287702) involved a slip and fall claim at an auction in Oakland County. Chocolate cake was apparently served to attendees in the kitchen. Plaintiff fell down the stairs from the kitchen to the basement when she stepped on some chocolate frosting.

Plaintiff filed suit on premises liability and ordinary negligence theories. The premises liability claim was dismissed as there was no evidence defendant was aware of chocolate frosting on the stairs. The ordinary negligence claim was dismissed as there was no evidence that defendant or its employees dropped the frosting on the stairs, as opposed to other customers at the auction.

In a very timely ruling, the Court held that “service of refreshments does not afford a basis on which to impose on defendant a duty to protect plaintiff from the spillage of those refreshments by third parties.” Holiday parties in Michigan may once again proceed without worrying about the open and obvious dangers of chocolate frosting.