JENNIFER LYNN ANCEL V BRYAN JAMES FOCO
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STATE OF MICHIGAN
COURT OF APPEALS
JENNIFER LYNN ANCEL,
UNPUBLISHED
May 27, 2010
Plaintiff-Appellant,
v
No. 289658
Bay Circuit Court
LC No. 08-003289-NI
BRYAN JAMES FOCO, DAVID ELDON
SWEEBE, and BAY REGIONAL MEDICAL
CENTER,
Defendants-Appellees.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Plaintiff, Jennifer Lynn Ancel, appeals as of right the grant of summary disposition in
favor of defendants. We affirm.
“A person remains subject to tort liability for non-economic 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(1).
The issue of whether a person has suffered a serious impairment of bodily function is a question
of law for the court if the court finds either of the following: (a) There is no factual dispute
concerning the nature and extent of the person’s injuries; or (b) there is a factual dispute
concerning the nature and extent of the person’s injuries, but the dispute is not material to the
determination as to whether the person has suffered a serious impairment of body function.
MCL 500.3135.
The Legislature defined “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” MCL 500.3135(7). Accordingly, to meet this threshold, plaintiff
must have (1) an objectively manifested impairment, (2) of an important body function, which
(3) affects her general ability to lead her normal life.
In the case at issue, the record supports that there was a factual dispute concerning
plaintiff’s injuries, specifically whether plaintiff had continued lifting restrictions. However, this
dispute is not material to the determination whether plaintiff has suffered a “serious impairment
of body function” because it was not material to a determination whether plaintiff sustained a
serious impairment of a bodily function.
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Plaintiff suffered an impairment of an important body function that was objectively
manifested. Plaintiff alleged and complained of pain in her back and legs, among other ailments,
which caused her pain when walking, sitting or lying supine. Walking, sitting, and sleeping are
important body functions. The ailments were objectively manifested by the MRI, which showed
mild disc bulges at C6-C7 and L4-L5 and an EMG, which showed C4-C5 and L5 radiculopathy.
No medical testimony or affidavits were offered in support of plaintiff’s claim.
The real issue in this case is whether the impairment affected plaintiff’s general ability to
live her life. This third prong involves a multifaceted inquiry, comparing plaintiff’s life before
and after the accident. A determination of the issue requires an objective analysis of the effect
on the impairment on plaintiff’s lifestyle to determine if plaintiff’s “general ability” to lead his or
her normal life has been affected. A non-exhaustive list of objective factors includes: (a) the
nature and extent of impairment; (b) the type and duration of treatment required; (c) the duration
of the impairment; (d) the extent of residual impairment; and (e) the prognosis for eventual
recovery. However, as stated in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004):
This list of factors is not meant to be exclusive nor are any of the
individual factors meant to be dispositive by themselves. For example, that the
duration of the impairment is short does not necessarily preclude a finding of a
“serious impairment of body function.” On the other hand, that the duration of
the impairment is long does not necessarily mandate a finding of “serious
impairment of body function.” Instead, in order to determine whether one has
suffered a “serious impairment of body function,” the totality of the circumstances
must be considered, and the ultimate question that must be answered is whether
the impairment affects the person’s general ability to conduct the course of his or
her normal life. [Id. at 133-134.]
Plaintiff’s life after the accident is not significantly different than her life before the
accident. She has continued to work for the same employer, doing the same job function, with
the exception of making the occasional customer delivery. She continues to care for her
children, and keep up her home. Looking at plaintiff’s life as a whole, before and after the
accident, and the nature and extent of her injuries, her impairment did not affect her overall
ability to conduct the course of her normal life. While she cannot participate in some minor
recreational activities to the extent that she could before the accident, a negative effect on a
particular aspect of an injured person’s life is not sufficient itself to meet the tort threshold, as
long as the injured person is still generally able to lead her normal life. Id. at 37.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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