LARRY LAW V IMPERIAL LEASING INC
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STATE OF MICHIGAN
COURT OF APPEALS
LARRY LAW,
UNPUBLISHED
October 13, 2005
Plaintiff-Appellant,
v
No. 254869
Kent Circuit Court
LC No. 03-000827-NI
BRIAN KEITH NOVAK, and STONETECH
MARBLE & GRANITE, INC.,
Defendants-Appellees.
Before: Talbot, P.J., and White and Wilder, JJ.
PER CURIAM.
In this action to recover noneconomic damages under the no-fault act, MCL 500.3101 et
seq., plaintiff appeals as of right from the circuit court’s orders granting summary disposition to
defendants and denying plaintiff’s motion for reconsideration. We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
In October 2002, plaintiff was injured when defendant Brian Keith Novak, who was
driving a truck leased by his employer, defendant Stonetech Marble & Granite, Inc., struck
plaintiff’s vehicle from behind while plaintiff was stopped at an intersection. Plaintiff was taken
by ambulance to a hospital, where he complained of neck and back pain.
Plaintiff, who had suffered a workplace back injury in 1977, had been unemployed since
that year, and he remained unemployed following the accident. Plaintiff was involved in a prior
car accident in May 2001 that resulted in lower back pain, left leg pain, and headaches; he was
treated for pain at a pain clinic approximately once a month following the prior accident and
continued to receive similar treatment following the October 2002 accident. A November 2002
MRI indicated the existence of degenerative disc disease and focal tears of the disc annulus;
however, the MRI report indicated that those symptoms were present in a previous MRI
performed one year prior to the accident.
Plaintiff testified in his depositions that, following the May 2001 accident, he was unable
to work on cars, do any house painting, fish, go for rides, go to movies, do housework, go
grocery shopping, cut his grass, or go to races. Plaintiff further testified that, for a period of
some months following the October 2002 accident, he suffered from increased pain.
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On defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10), the
circuit court concluded that, based on evidence of edema or swelling at the point of plaintiff’s
preexisting back injury, plaintiff had arguably demonstrated the existence of an objectively
manifested impairment of an important body function. The court nevertheless granted
defendants’ motion on the ground that plaintiff had failed to demonstrate the existence of a
genuine issue of material fact that the impairment affected his general ability to lead his normal
life.
This Court reviews de novo the grant or denial of a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR
2.116(C)(10) tests the factual support of a plaintiff’s claim. Lind v Battle Creek, 470 Mich 230,
238; 681 NW2d 334 (2004). The trial court may grant summary disposition under MCR
2.116(C)(10) if, considering the substantively admissible evidence in a light most favorable to
the nonmoving party, there is no genuine issue concerning any material fact and the moving
party is entitled to judgment as a matter of law. Lind, supra at 238; Maiden v Rozwood, 461
Mich 109, 119-121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
We review the trial court’s denial of a motion for reconsideration for an abuse of
discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). The party
moving for reconsideration “must demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the motion must result from correction
of the error.” MCR 2.119(F)(3).
MCL 500.3135(1) provides that a person “remains subject to tort liability for
noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if
the injured person has suffered death, serious impairment of body function, or permanent serious
disfigurement.” 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” (emphasis supplied).
In Kreiner v Fischer, 471 Mich 109, 131; 683 NW2d 611 (2004), the Court held that
[a]lthough some aspects of a plaintiff’s entire normal life may be interrupted by
the impairment, if, despite those impingements, the course or trajectory of the
plaintiff’s normal life has not been affected, then the plaintiff’s “general ability”
to lead his normal life has not been affected and he does not meet the “serious
impairment of body function” threshold.
The Court stated, “the [trial] court must engage in an objective analysis regarding whether any
difference between the plaintiff’s pre- and post-accident lifestyle has actually affected the
plaintiff’s ‘general ability’ to conduct the course of his life.” Id., 133.
Plaintiff suffered a back injury, had back surgery, and has been unemployed since 1977.
Further, plaintiff was in a car accident before the instant accident, in May 2001, after which his
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activities were significantly limited.1 Although plaintiff presented evidence that his activities
and abilities were more limited following the second accident, the difference is not substantial.
Plaintiff argues that the affidavit of his former roommate, Robert Faber, which was
submitted along with his supplemental brief in opposition to summary disposition2 and with his
motion for reconsideration, demonstrates that his life was significantly changed following the
October 2002 accident.3 The affidavit states that immediately before the October 2002 accident
plaintiff was able to fish, ride in cars for extended periods, paint, do housework, mow his lawn,
grocery shop, and work on cars, but plaintiff’s deposition testimony concerning his pre- and
postimpairment activities does not articulate these significant differences.
Defendants’ motion for summary disposition was properly granted, and the circuit court
did not abuse its discretion in denying plaintiff’s motion for reconsideration.
Affirmed.
/s/ Michael J. Talbot
/s/ Helene N. White
/s/ Kurtis T. Wilder
1
Although plaintiff relied heavily on a letter supplied by his treating physician and on the
emergency room admission record from the day of the October 2002 accident, neither document
supports a finding that plaintiff’s general ability to lead his normal life was affected.
2
The circuit court allowed plaintiff to present additional documentary evidence in support of his
position.
3
Defendants contend that the Faber affidavit is substantively inadmissible, and thus may not be
considered because Faber was not listed by plaintiff as a proposed witness. For purposes of this
appeal, we assume that the affidavit was properly submitted.
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