KENNETH SPIES V ALLYN PARKER
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH SPIES,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellant,
v
No. 227581
Arenac Circuit Court
LC No. 99-006234-NI
ALLYN PARKER and JASON PARKER,
Defendant-Appellees.
Before: Fitzgerald, P.J., and Bandstra and K.F. Kelly, JJ.
K.F. Kelly, J (concurring)
I concur with the majority’s decision that the trial court erred by failing to determine
whether there existed a factual dispute concerning the nature and extent of plaintiff’s injuries and
submitting the threshold issue to the jury, but otherwise do not agree that it is unnecessary to
remand to the trial court for specific findings
In accord with the decision in May v Sommerfield, 239 Mich App 197, 202; 607 NW2d
422 (1999), the trial court must articulate its findings as to whether there exists a factual dispute
concerning: (1) whether plaintiff suffered a “`serious impairment of body function’” in light of
“`the nature and extent of plaintiff’s injuries’” for purposes of MCL 500.3135(2)(a)(i) or (ii); (2)
whether plaintiff has an “`objectively manifested’” impairment which effects “`an important
body function’”; and (3) whether the “`extent’” of plaintiff’s impairment effects plaintiff’s
“`general ability to lead [a] normal life.’” Accordingly, I would remand to the trial court and
direct it to clearly articulate its findings in this regard.
I further disagree with the conclusion that plaintiff’s wound does not necessarily
constitute a “permanent serious disfigurement.” Although plaintiff may wear long sleeves to
conceal the scar, that certainly does not make the existence of the seven inch gash less permanent
or less disfiguring. On these facts, a trial court could conclude that the seven inch scar on
plaintiff’s left forearm is indeed a “permanent serious disfigurement” for purposes of the
applicable statute and then place the issue of damages squarely within the jury’s province.
Antithetically, a trial court could concluded that this seven inch scar on the forearm does not
constitute a “permanent serious disfigurement” for purposes of the statute thus potentially
placing the issue before this Court on appeal. Unless and until the latter occurs, it is not for this
Court to definitively determine whether plaintiff’s scar is a “permanent serious disfigurement”
absent a ruling from the trial court on this threshold issue.
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Accordingly, for these reasons, I would remand to the trial court for its determination on
these threshold issues and for a new trial on damages if the trial court makes the requisite
findings. See Kern v Blethen-Coluni, 240 Mich App 333, 337; 612 NW2d 838 (2000).
/s/ Kirsten Frank Kelly
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