Opinion
No. 141212.
October 26, 2010.
Court of Appeals No. 289680.
Leave to Appeal Denied.
I concur in the order denying leave because the conclusion of the Court of Appeals majority — that plaintiffs injuries were sufficient to satisfy the tort threshold in MCL 500.3135(7) — likely would not constitute clear error under this Court's subsequent opinion in McCormick v Carrier, 487 Mich. 180 (2010). But I reiterate my disagreement with McCormick for the reasons expressed by Justice MARKMAN'S dissent in that case, which I joined. Further, I agree with the trial court and the Court of Appeals dissent that plaintiffs injuries here clearly do not satisfy the plain language of MCL 500.3135(7), which I think was correctly interpreted in Kreiner v. Fischer, 471 Mich 109 (2004).
The automobile no-fault act permits a person injured in an automobile accident to sue in tort only if the injury caused by the accident constitutes a "serious impairment of body function," which means "an objectively manifested impairment of an important body function that affects the person's general ability to live his or her normal life." MCL 500.3135(7). Here plaintiff claimed that the accident aggravated preexisting back pain and depression. But, in the words of the dissenting Court of Appeals opinion:
The record in this case is full of undisputed evidence that the trajectory of plaintiffs normal life has not been affected by the automobile accident. As the trial court noted in its opinion, well before the accident in this case, plaintiff had been determined disabled by the Social Security Administration. In his application for those benefits, which were largely based upon a psychological disability, plaintiff indicated that he could not do virtually all the things he now claims he could not do because of the accident. For instance, for many years before the accident plaintiff had not worked, golfed, fished, boated, or even done many household chores. Indeed, he admittedly stayed in his bedroom on and off for many days, in large part because of his depression. His same life pattern continued after the accident, albeit with some more pain. [ Chase v. Pomilia, unpublished opinion per curiam of the Court of Appeals, issued May 18, 2010 (Docket No. 289680) (MURRAY, J., dissenting), p 2.]