Opinion
Docket No. 86476.
Decided March 16, 1987.
Libner, Van Leuven Kortering, P.C. (by John A. Braden), for plaintiff.
Farr Oosterhouse (by Paul E. Jensen), for defendant.
In this case, plaintiff sought recovery for noneconomic damages sustained after he was injured in an automobile accident. The trial court granted summary disposition, concluding that plaintiff's injuries did not constitute a serious impairment of body function or permanent serious disfigurement.
Subsequent to the submission of this case, the Supreme Court issued its opinion in DiFranco v Pickard, 427 Mich. 32; 398 N.W.2d 896 (1986), which substantially altered the decision in Cassidy v McGovern, 415 Mich. 483; 330 N.W.2d 22 (1982). Most significantly, the DiFranco opinion directs that the trier of fact, rather than the trial court, is to determine whether an injury constitutes a serious impairment of body function whenever the evidence would cause reasonable minds to differ as to the answer. DiFranco, p 38. Accordingly, summary disposition will be appropriate in fewer cases than was the case under Cassidy. Rather than review this case ourselves, the more appropriate procedure is to remand the case to the trial court for reconsideration in light of DiFranco.
While DiFranco did not directly deal with the issue of permanent serious disfigurement, this Court has in the past applied Cassidy to the disfigurement cases. See Shortridge v Bailey, 145 Mich. App. 547 ; 378 N.W.2d 544 (1985); Williams v Payne, 131 Mich. App. 403; 346 N.W.2d 564 (1984). The trial court in the instant case appears to have followed suit and applied Cassidy to the serious disfigurement issue as well. Accordingly, we direct the trial court to also reconsider the permanent serious disfigurement issue in light of DiFranco.
Remanded for reconsideration in light of DiFranco. We do not retain jurisdiction. No costs.