FRANK J BALMA V JASON VICTOR LEEP
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STATE OF MICHIGAN
COURT OF APPEALS
FRANK J. BALMA,
UNPUBLISHED
June 7, 2002
Plaintiff-Appellee,
v
No. 234196
Houghton Circuit Court
LC No. 99-010720-NI
JASON VICTOR LEEP and PAUL A. LEEP,
Defendants-Appellants.
Before: Griffin, P.J., and Hood and Sawyer, JJ.
PER CURIAM.
Defendants appeal as of right a judgment rendered following a jury verdict in plaintiff’s
favor in this automobile negligence case. We reverse.
Plaintiff sought noneconomic damages for injuries he sustained in an accident involving a
vehicle driven by defendant Jason Victor Leep and owned by defendant Paul A. Leep. At the
close of plaintiff’s case, defendants moved for a directed verdict, and the trial court denied the
motion. The jury subsequently found that defendants’ negligence proximately caused plaintiff’s
injuries and that those injuries met the no-fault threshold for recovery. Thereafter, the trial court
denied defendants’ motion for judgment notwithstanding the verdict (JNOV).
A tortfeasor is subject to liability for noneconomic damages caused by an automobile
accident if the injured party suffers “death, serious impairment of body function, or permanent
serious disfigurement.” MCL 500.3135(1). Whether a person has suffered serious impairment
of body function or permanent serious disfigurement is a question of law for the trial court if no
outcome-determinative dispute exists concerning the nature and extent of the person’s injuries
or, if there is a dispute, if it is immaterial to the determination whether plaintiff suffered serious
impairment of body function or permanent serious disfigurement. MCL 500.3135(2)(a); May v
Sommerfield, 239 Mich App 197, 201; 607 NW2d 422 (1999).
In the present case, the trial court failed to determine whether a factual dispute existed
regarding the nature and extent of plaintiff’s injuries and submitted the threshold issue to the
jury. However, because no material conflict exists between plaintiff’s testimony, his doctors’
testimony, and the testimony of a doctor who provided an independent medical examination, we
decline to remand this case to the trial court for factual findings regarding whether a factual
dispute existed concerning the nature and extent of plaintiff’s injuries. Kern v Blethen-Coluni,
240 Mich App 333, 343-344; 612 NW2d 838 (2000).
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Defendants contend the trial court erred in denying its motion for JNOV because plaintiff
failed to establish serious impairment of body function as a matter of law. We agree.
A trial court’s denial of a motion for JNOV is reviewed de novo. Morinelli v Provident
Life & Accident Co, 242 Mich App 255, 260; 617 NW2d 777 (2000). We must view the
testimony and all legitimate inferences from it in the light most favorable to the nonmoving
party. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). Only if the evidence failed to
establish a claim as a matter of law is JNOV appropriate. Forge, supra at 204; Chiles v Machine
Shop, Inc, 238 Mich App 462, 469; 606 NW2d 398 (1999).
“Serious impairment of body function” is statutorily defined as “an objectively
manifested impairment of an important body function that affects the person’s general ability to
lead his or her normal life.” MCL 500.3135(7). An important body function is one that affects a
person’s general ability to live a normal life, which we determine by comparing plaintiff’s preand post-injury activities. Kern, supra at 340. In determining whether the impairment of the
important body function is “serious,” we consider the following nonexhaustive list of factors:
extent of the injury, treatment required, duration of disability, and extent of residual impairment
and prognosis for eventual recovery. Id. at 341. Also, an injury need not be permanent to be
serious. Id.
Although the ability to move one’s back constitutes an important body function, Chumley
v Chrysler Corp, 156 Mich App 474, 481; 401 NW2d 879 (1987), plaintiff did not establish
serious impairment of body function as a matter of law. Plaintiff’s doctors noted he enjoys full
range of motion in his back. Although plaintiff had to restrict his work activities for a period of
time because of the injuries, neither he nor his doctors indicated his work or recreational
activities are currently restricted. Additionally, plaintiff’s only treatment for his condition was
the use of pain medication, and his prognosis is for continuation of the status quo.
For these reasons, we hold plaintiff’s injuries did not affect his general ability to live his
normal life and, consequently, he did not suffer serious impairment of body function. Miller v
Purcell, 246 Mich App 244; 631 NW2d 760 (2001). Therefore, the trial court erred in denying
defendants’ motion for JNOV.
In light of our resolution of this issue, we need not address defendant’s other claims of
error.
Reversed.
/s/ Richard Allen Griffin
/s/ Harold Hood
/s/ David H. Sawyer
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