Opinion
Docket No. 78-4436.
Decided June 2, 1980.
Rifkin, Kinglsey Rhodes, P.C. (by Frank K. Rhodes, III), for plaintiff.
Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch Clark (by Paul E. Pedersen), for defendant.
This is the kind of fender-bender soft tissue injury, briefly incapacitating with a fast and full recovery, that the Legislature meant to keep out of court by enacting the threshold requirements. However, by using the uncertain phrase "serious impairment of body function", the no-fault act utterly fails to accomplish that purpose and, ironically, makes auto-accident litigation even more of a crap game.
Any incapacity for a few days or weeks will seem "serious" to one jury while another will find against a plaintiff who has a more extensive impairment with continuing problems. The personalities of the jurors, the parties and the lawyers may affect the outcome.
It is no easier to say a body impairment is or is not "serious" than to say conduct established by discovery is or is not "negligent". But summary judgment is almost never appropriate in negligence actions; Simonetti v Rinshed-Mason Co, 41 Mich. App. 446; 200 N.W.2d 354 (1972). The applicable Michigan court rule, GC R 117.2(3), is simply not a workable mechanism for courts to locate and weed out personal injury cases that do not belong there.
We recognize, however, that summary judgment is not an absolute impossibility on a motion that plaintiff's injury is or is not a serious impairment of body function as a matter of law. In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441; 208 N.W.2d 469 (1973), the Supreme Court reiterated that the statutory phrase "serious impairment of body function" presents a question of fact that is within the exclusive province of the triers of fact: "Only when interpretation approaches or breaches permissible limits does it become a question of law for the court."
McKendrick v Petrucci, 71 Mich. App. 200, 212; 247 N.W.2d 349 (1976), observed:
"Where resolution of a case requires the trier of fact to make `qualitative inferences', summary judgment will usually not be appropriate."
Nevertheless in Vitale v Danylak, 74 Mich. App. 615; 254 N.W.2d 593 (1977), the Court of Appeals affirmed a summary judgment for a defendant. After discussing the Advisory Opinion, supra, which refers to "permissible limits", the Court said:
"While the opinion did not specify where the `permissible limits' are drawn, this Court is of the opinion that if any class of cases could approach such limitation, the case at bar must be included in that class. The plaintiff's sole injury arising from the accident was a stiff neck, which was treated with minimal medication and subsequently disappeared within a week." ( 74 Mich. App. 615, 619.)
Vitale is the exception that proves the rule. Summary judgment for the defendant is available only in those rare, clearest of cases in which a judge can decide "after accepting as true all of the plaintiff's factual allegations, that no reasonable jury would find the injury sustained to be serious".
Cassidy v McGovern, 86 Mich. App. 321; 272 N.W.2d 644 (1978), is the other side of the Vitale coin. Cassidy holds that it is also legally possible for a judge to determine, in the clearest of cases in which no reasonable jury could disagree, that an impairment of body function occurred and was "serious" so that a partial summary judgment on that issue may properly be entered for the plaintiff. Actually it is not difficult to imagine cases in which a serious impairment of body function would be beyond question: an accident causing complete and permanent blindness would be an extreme example.
Although we strongly believe that plaintiff's incapacitation for a few weeks falls far short of the statutory threshold we cannot say that all reasonable jurors would agree.
We reverse and remand with a suggestion that the circuit judge remove the case to a lower court. In the unlikely event that a jury finds in favor of plaintiff, nine weeks of convalescence, with lost wages and medical paid as P.I.P. benefits, surely would not justify an award in excess of $10,000.