DANIEL LEE STRAUB V PHILLIP MICHAEL COLLETTE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
DANIEL LEE STRAUB,
FOR PUBLICATION
December 20, 2002
9:05 a.m.
Plaintiff-Appellant,
No. 236505
Monroe Circuit Court
LC No. 00-011405-NI
v
PHILLIP MICHAEL COLLETTE and TERESA
M. HEIL-WYLIE,
Defendant-Appellees.
Updated Copy
February 28, 2003
Before: Hood, P.J., and Smolenski and Kelly, JJ.
SMOLENSKI, J.
Plaintiff appeals as of right from a trial court order granting summary disposition in favor
of defendants under MCR 2.116(C)(10). We reverse. This case is being decided without oral
argument pursuant to MCR 7.214(E).
This case arises from a traffic accident that occurred on September 19, 1999. Plaintiff
was driving his motorcycle while defendant Phillip Collette was driving a car owned by both
defendants. Collette turned onto a street in front of plaintiff, resulting in a collision. Importantly
to this appeal, plaintiff suffered injuries to his nondominant left hand in the accident. In
particular, he was diagnosed with a "closed left fifth metacarpal displaced neck fracture," known
less formally as a "boxer's fracture," as well as open wounds, including extensor tendon injuries,
to his middle and ring fingers. Plaintiff underwent outpatient surgery, attended some physical
therapy, and wore a cast for a time as a result of the injuries. Also, plaintiff was off work from
his employment as a "cable lineman" until he returned to work part-time in November 1999.
In addition, according to plaintiff 's undisputed deposition testimony, at the time of the
accident, plaintiff had been playing the bass guitar in a band that performed almost every Friday
or Saturday night, mostly at nightclubs and private clubs, and that additionally practiced three or
four times a week. However, plaintiff did not play in the band from the time of the accident until
mid-January 2000 because he "didn't have the strength in [his] fingers. They wouldn't work."
Plaintiff, who lived alone, also had difficulty with household and personal tasks until December
1999 and with operating his "bow shop" and with processing deer during the 1999 deer season.
-1-
Plaintiff returned to work full-time on December 14, 1999. However, he testified at his
deposition that he has a continuing inability to completely straighten out his middle finger or to
completely close his left hand.
Plaintiff argues that the trial court erred by granting summary disposition in favor of
defendants under MCR 2.116(C)(10). We agree. In reviewing a grant of summary disposition
under MCR 2.116(C)(10), we consider de novo the documentary evidence in a light most
favorable to the nonmoving party to decide whether a genuine issue of material fact exists.
Schuster Constr Services, Inc v Painia Dev Corp, 251 Mich App 227, 230; 651 NW2d 749
(2002). However, in this case, the facts essential to our decision are undisputed with the real
question being the proper legal characterization of those facts, particularly whether the left hand
injuries suffered by plaintiff in the traffic accident underlying this case constituted a "serious
impairment of body function."
The no-fault act generally abolished tort liability with regard to the use of a motor
vehicle. MCL 500.3135(3). However, a statutory exception to this general rule provides that
tort liability remains for noneconomic loss if the injured person has suffered "serious impairment
of body function." MCL 500.3135(1). The issue whether a person has suffered a serious
impairment of body function is a question of law for the court to decide where, as in the present
case, there is no factual dispute regarding the nature and extent of the injuries. MCL
500.3135(2)(a); Kreiner v Fischer, 251 Mich App 513, 515; 651 NW2d 433 (2002). MCL
500.3135(7) defines "serious impairment of body function" as "an objectively manifested
impairment of an important body function that affects the person's general ability to lead his or
her normal life." Given the nature of plaintiff 's left hand injuries and the medical treatment he
received, it is obvious that the injuries were objectively manifested. Further, it is plain that the
ability to use one's hand is an important body function. The real question in this case, and the
point disputed by the parties, is whether the left hand injuries affected plaintiff 's general ability
to lead a normal life so as to constitute a serious impairment of body function. Because we
believe that the left hand injuries in this case constituted a serious impairment of body function
for some period, we conclude that the trial court erred in granting summary disposition in favor
of defendants.
An injury does not need to be permanent in order to constitute a serious impairment of
body function. Kern v Blethen-Coluni, 240 Mich App 333, 343; 612 NW2d 838 (2000). Thus,
while we believe it is clear that plaintiff was free of any serious impairment of body function by
mid-January 2000, that does not necessarily mean that there was no serious impairment of body
function based on the effects of his left hand injuries between the occurrence of the collision on
September 19, 1999, and mid-January 2000.
Turning to the relevant period between September 1999 and January 2000, we conclude
that plaintiff 's left hand injuries affected his general ability to lead his normal life and,
accordingly, that he suffered a serious impairment of body function. In determining whether an
impairment of an important body function is "serious," a court should consider these
nonexhaustive factors: "extent of the injury, treatment required, duration of disability, and extent
of residual impairment and prognosis for eventual recovery." Kern, supra at 341. In this case,
the undisputed evidence indicated that the plaintiff had regularly performed as a musician
playing the bass guitar, but was unable to do so for about four months as a result of the injuries
-2-
that he suffered in the accident. Given plaintiff 's undisputed deposition testimony that he
performed in a band that gave performances almost every weekend and additionally practiced
three or four times a week, being able to play the bass guitar was a major part of plaintiff 's
normal life. Further, the period of about four months that plaintiff could not perform musically
was a significant amount of time. In addition, plaintiff was limited in his ability to work at his
full-time employment for about three months. In deciding whether injuries constitute a serious
impairment of body function, it is appropriate to compare a plaintiff 's "lifestyle before and after
the accident." May v Sommerfield (After Remand), 240 Mich App 504, 506; 617 NW2d 920
(2000). It is also important to bear in mind that the plain language of MCL 500.3135(7) provides
a "subjective" definition in that the determination centers on the effect on the particular injured
party's normal life, see May, supra, as opposed to the typical effect of injuries of a certain type
on people generally. Applying these principles to the present case, we conclude that plaintiff 's
injuries constituted a serious impairment of body function because, albeit for a relatively limited
time, they did affect his general ability to lead his normal life, particularly his ability to perform
musically and to work, both of which were integral parts of his normal life. See Kreiner, supra
at 518-519 (considering evidence that the plaintiff in that case was limited in the time he could
work and unable to participate in "certain types of recreational hunting" as supporting a
conclusion that he suffered a serious impairment of body function). It is immaterial that the
same injuries suffered by a hypothetical person who led a more sedentary lifestyle than plaintiff,
or who did not rely on the use of the nondominant hand as much as plaintiff did, might not
constitute a serious impairment of body function.
The trial court's view of plaintiff 's "guitar playing" as an "extrinsic" consideration seems
to incorrectly consider whether plaintiff 's injuries were serious in themselves, i.e., the general
seriousness of such injuries, rather than how the injuries affected plaintiff 's general ability to
lead his normal life. See id. at 518 (erroneous for trial court to consider whether impairment was
"serious enough" where unambiguous language of MCL 500.3135[7] directs consideration of
whether impairment "affects the person's general ability to lead his or her normal life.").
Accordingly, we conclude that the trial court erred by granting summary disposition in favor of
defendants on the basis of its effective conclusion that plaintiff did not present evidence of a
serious impairment of body function.
We reverse the trial court's grant of summary disposition in favor of defendants and
remand this case to the trial court for further appropriate proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Harold Hood
/s/ Kirsten Frank Kelly
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.