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March 18, 2020
In Miller v Deisler, a recent unpublished decision of the Court of Appeals, the Court considered what makes a permanent disfigurement “serious” enough to meet the threshold, as well as what injuries satisfy a serious impairment, under MCL 500.3135. The case involved a motorcycle versus automobile collision in which Mr. Miller claimed to have sustained injuries to his left knee and right shoulder along with a scar across his forehead.
Mr. Miller testified that upon impact, he fell onto his knees and immediately began experiencing left knee pain and right shoulder pain. The emergency room treatment notes described the laceration to his forehead and the resulting repair of that wound but did not address the knee or the shoulder. Subsequent medical records showed a hospital visit a month after the collision documenting complaints of left knee pain and left shoulder pain as opposed to right shoulder pain.
Mr. Miller subsequently underwent a left knee surgery. The pre- and post-operative diagnoses given in relation to that procedure illustrated purely degenerative conditions. There were no references to the right shoulder in any of the records until approximately two years after the accident; and, in that instance, those complaints were directly attributed to a fall the plaintiff had sustained after helping a neighbor push her car out of a snow bank. In relation to his scar, the plaintiff testified that he felt that the scar on his forehead was very conspicuous and caused him to experience flashbacks of the accident every time he saw it.
Defendant filed a motion for summary disposition arguing that Mr. Miller’s left knee and right shoulder injuries were not caused by the collision and that the scar was not a permanent serious disfigurement as contemplated by the act because it had healed and was camouflaged by his existing forehead wrinkles. The trial court granted defendant’s motion at the hearing, agreeing with the arguments regarding causation as to the knee and shoulder and found that Mr. Miller had not shown how either of these alleged injuries had impacted his life. However, although the court believed the scar was concealed amongst the wrinkles in Mr. Miller’s forehead, the court noted that Mr. Miller had not provided any evidence that the scar affected his ability to lead his normal life, specifically citing a lack of testimony indicating that Mr. Miller withdrew from social events or was somehow viewed differently by others due to the scar.
The Court of Appeals upheld the trial court’s ruling as to the right shoulder but reversed as to the left knee finding that despite evidence of some degenerative issues, a reasonable jury could have found that the collision exacerbated or brought about the symptoms related to that injury.
As to the forehead scar, the Court of Appeals noted the record contained photographs of Mr. Miller’s scar and noted there was no material factual dispute over the nature and extent of the injury. Thus, whether the scar was a permanent serious disfigurement was a question of law for the Court. The Court noted the scar was less noticeable then immediately after the accident, but the length of the scar was approximately the width of Mr. Miller’s eye. The Court believed that even though the scar’s coloring almost matched Mr. Miller’s skin tone, it marred his appearance “somewhat” such that it could constitute a disfigurement. The Court concluded, however, that Mr. Miller failed to demonstrate the scar was objectively significant enough to be considered “serious” for purposes of MCL 500.3135(1).
Relying heavily on its analysis in Fisher v Blankenship, 286 Mich App 54; 777 NW2d 469 (2009), the Court determined an assessment must be made under an objective standard “as a matter of common knowledge and experience” and the emphasis should be on the actual physical appearance of the disfigurement, not how it affects the person’s ability to lead their life. Mr. Miller’s subjective feelings that the scar was noticeable and his testimony that it caused him to have flashbacks of the accident do not enter into the analysis. The Court found the scar was not immediately distinguishable from the overall appearance of Mr. Miller’s wrinkles and skin tone unless someone was specifically looking for it. The Court found Mr. Miller’s appearance was not “significantly altered” by the scar and thus the scar did not “significantly mar” Mr. Miller’s overall appearance and was not serious for purposes of MCL 500.3135(1).
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or firstname.lastname@example.org