Opinion
No. 140927.
December 1, 2010.
Court of Appeals No. 289227.
Summary Disposition.
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the judgments of the Court of Appeals and the Saginaw Circuit'Court, and we remand this case to the trial court for reconsideration in light of McCormick v Carrier, 487 Mich 180 (2010).
I reluctantly concur in this Court's order remanding this case for reconsideration in light of this Court's recent decision in McCormick v Carrier, 487 Mich 180 (2010). Although I joined and continue to subscribe to Justice MARKMAN'S dissenting opinion in that case, McCormick now controls when a person may recover in tort for noneconomic loss under the no fault act. The McCormick dissent astutely noted that
[b]y nullifying the legislative compromise that was struck when the no-fault act was adopted — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance — the Court's decision today will restore a legal environment in which each of these hazards reappears and threatens the continued fiscal soundness of our no-fault system." [ Id. at 286-287 (MARKMAN, J., dissenting).]
The factual scenario presented in this case certainly brings to life these concerns and thus illustrates what is so troubling with the virtually standardless positions articulated in McCormick.
Plaintiff here sustained a fracture in his left shoulder as a result of a motorcycle accident. Within approximately two months plaintiff returned to work without restrictions, and shortly thereafter he self-discharged from physical therapy. The trial court specifically found that plaintiff could not identify any recreational activities that he has been unable to perform as a result of the accident, and that any residual effects from the accident "have not deterred him from performing any vocational, domestic or recreational activity which he engaged in prior to the accident." Indeed, except for work, plaintiff was able to resume his normal daily activities almost immediately (five days) after the accident.
Plaintiffs injury here is not "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." Indeed, the trial court's findings of fact — which do not change even upon remand for consideration under McCormick `s new legal standard — expressly state that plaintiffs ability to live in his normal manner of living has not been affected, nor has there been an impairment of plaintiffs pre-accident activity or lifestyle. The injury here was simply not sufficient to meet the statute's definition of " serious impairment of body function" — the type of impairment that was legislatively grouped with "death" and "permanent serious disfigurement."
Unfortunately, the majority's decision in McCormick to strip MCL 500.3135 of any meaningful limitation by removing the statutory limitations imposed by the Legislature produces a situation of seemingly unlimited liability that will require courts to wrestle with the question of what constitutes a "serious impairment of body function" without meaningful and defined guidance from their state's senior Court. This case thus brings to life the concern noted by Justice MARKMAN in his McCormick dissent that "I am not sure that the majority's new threshold can even be called a `threshold' when it can be satisfied in virtually every automobile accident case that results in injury." Id. at 256. Nevertheless, because McCormick now governs the analysis to this question, I feel compelled to allow the trial court to address this question anew.
CORRIGAN and MARKMAN, JJ., joined the statement of YOUNG, J.