February 27, 2013
In an unpublished, no-fault “serious impairment” opinion, the Michigan Court of Appeals affirmed a decision of the Macomb Circuit Court finding that the plaintiff had failed to establish that any injuries from his auto accident affected his general ability to lead his normal life.
The opinion is Wilson v Lathrop, Mich Ct of Apps Docket No. 305718 (2-14-2013). A full copy of the opinion is available Online at http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130214_C305718_37_305718.OPN.PDF
This case presents a familiar fact pattern. After a trivial accident, the plaintiff claimed that he sustained a life-altering injury. He gave up his business. He moved out of his marital home and back into his parents’ house. His mother did “everything” for him. He “did not even attempt to perform basic tasks for himself, such as prepare a bowl of cereal.”
The Macomb Circuit Court ruled, first, that the plaintiff did not have an objectively manifested impairment, and, second, that the plaintiff had failed to demonstrate that such an impairment affected his ability to lead a normal life.
The circuit court’s first ruling was rejected by the Court of Appeals, because there was sufficient evidence to create a question of fact as to whether the plaintiff had sustained an objectively manifested impairment. Here again, the facts were very common. The plaintiff declined medical treatment at the scene of the accident and yet later found two doctors who “supported his need for medication, physical therapy, and work restrictions, and attributed his pain to the accident.” Three independent examiners, however, had “concluded that the physical complaints were inconsistent with plaintiff’s presentation.”
The circuit court’s second ruling, however, was affirmed by the Court of Appeals, because the plaintiff had failed to establish that an impairment had an affect upon his ability to lead a normal life. The Court of Appeals noted that, although the plaintiff testified that his mother did “everything” for him, he also “admitted that he never tried to perform basic tasks such as making breakfast, washing clothes, or grocery shopping.” The Court of Appeals emphasized that “[o]ne cannot simply surmise that he lacks the ability to accomplish a basic task absent any attempt to perform it. A party must oppose a motion for summary disposition with admissible documentary evidence that must contain a factual foundation without relying on speculation and conjecture.”
This opinion used the phrase “documentary evidence” to describe how a plaintiff “must” meet his burden of proof on this point. A plaintiff’s testimony alone is not enough. It seems that the Court of Appeals wants more.
Would the court’s decision have been different if the plaintiff had testified that he had tried each of the noted basic tasks and had to stop doing them because of pain? That seems to be the cynical “fix” for the plaintiff. But that would likely not work. The plaintiff has to meet his burden with documentary evidence that shows his pre-accident life and his post-accident life are different. In short, “don’t tell me: show me, and back it up with something in writing.”
That said, this opinion may be a response to a real dog of a case. A close reading of the opinion describes “issues” that are not uncommon. For example, this plaintiff could not identify one of his twenty employees. Moreover, surveillance video showed that he was not telling the truth, because it “located plaintiff at his wife’s residence where he was observed performing basic tasks such as driving and running errands.” These things probably colored the decisions of the trial court and the Court of Appeals. It’s unlikely, for example, that a plaintiff with a fractured femur would be expected to show that he had tried to climb stairs before a trial court would accept that he could not.
This opinion is of greater value in the common cases that many of us see all too frequently. In essence, it forces the plaintiff with a weak case to show something “documentary” to support a bald claim that he cannot even perform basic tasks.
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