HADIEH KATIP V ALI NASRI SAYED
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STATE OF MICHIGAN
COURT OF APPEALS
HADIEH KATIP,
UNPUBLISHED
November 23, 2010
Plaintiff-Appellant,
v
ALI NASRI SAYED and NEDAL EL-SAYED,
No. 292692
Wayne Circuit Court
LC No. 08-115695-NI
Defendants-Appellees.
Before: SERVITTO, P.J., and ZAHRA and DONOFRIO, JJ.
MEMORANDUM.
In this action to recover noneconomic damages under the no-fault act, plaintiff appeals as
of right from a circuit court order granting summary disposition in favor of defendants pursuant
to MCR 2.116(C)(10). We reverse and remand. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
I. BASIC FACTS
Plaintiff was injured on June 16, 2006, when her vehicle was hit from behind by a vehicle
operated by defendant Sayed and owned by defendant El-Sayed while plaintiff was waiting to
make a left turn. After the accident, plaintiff’s left hand hurt and the police told her that she had
a red mark on her head. She was transported by ambulance to the hospital, was treated in the
emergency room, and released. The emergency room records note a contusion on her head.
Plaintiff was unable to remember some of the details of the events after the accident, such as
whether she spoke to anyone at the scene before the police arrived, what she told the police, why
she did not talk to her sons at the scene, how she got home from the hospital, and which son was
with her in the hospital.
Two weeks after the accident, plaintiff was treated by Dr. Rahim, who prescribed
medications and physical therapy. Dr. Rahim’s office records show approximately 29 visits that
appear to be related to the accident in the following six months, and another 29 in the next six
months. Dr. Rahim summarized the results of MRIs and EMGs in an affidavit. His diagnosis
was “concussion head injury, cervical disc herniation compression of the cord, lumbar disc
herniation L5 with compression right S1, cauda equine syndrome at L4-L5 and carpal tunnel
syndrome.” Dr. Rahim averred that he “felt that based on my diagnoses and treatment that she
was disabled from her household activities, work, and attendant care.”
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Dr. Ahmad evaluated plaintiff on July 15, 2006. At that time, plaintiff complained of
daily “severe headaches at frontal, bitemporal area with sharp and throbbing pains,” and
“dizziness, blurry vision and gets loss of concentration.” Dr. Ahmad stated his diagnosis was
“closed head injury with concussion, post concussion syndrome, posttraumatic cephalgia,
cervical, thoracic, lumbar myofascial strain with radiculitis, and left arm pain injury.” His
treatment consisted of “continue physical therapy and exercises. analgesics, muscle relaxants,
and nerve block injection.” Like Dr. Rahim, Dr. Ahmad “felt that based on my diagnoses and
treatment that she was disabled from her household activities, work, and attendant care.”
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10) on the basis
that plaintiff’s injuries did not meet the statutory threshold for recovery of noneconomic
damages because her impairment did not affect her general ability to lead her normal life under
then controlling precedent Kreiner v Fischer, 471 Mich 109, 130-131; 683 NW2d 611 (2004),
reh den 471 Mich 1201 (2004). The trial court granted the defendant’s motion.
On appeal, a court’s decision on a motion for summary disposition is reviewed de novo.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A motion under MCR
2.116(C)(10) tests the factual support for a claim. When reviewing a motion under
MCR2.116(C)(10), a court must examine the documentary evidence presented and, draw all
reasonable inferences in favor of the nonmoving party, and determine whether a genuine issue of
material fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The nonmoving party has the burden of establishing through affidavits, depositions, admissions,
or other documentary evidence that a genuine issue of disputed fact exists. Id. A question of
fact exists when reasonable minds can differ on the conclusions to be drawn from the evidence.
Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 398-399; 491
NW2d 208 (1992). Summary disposition is properly granted when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Maiden, 461 Mich
at 120.
Here, the only relevant question on appeal in this case is whether the trial court properly
determined whether plaintiff’s alleged injuries, i.e. left arm and shoulder, her neck, and her head,
together establish that that plaintiff suffered a serious impairment of body function. However, at
the time the trial court rendered its decision, the controlling standard used to make this
determination was Kreiner v Fisher, 471 Mich 109, 130-131; 683 NW2d 611 (2004). Kreiner
has since been reversed by the Supreme Court’s decision in McCormick v Carrier, ___ Mich
___; ___ NW2d ___ (2010). Since the Supreme Court in McCormick established a new standard
for evaluating third-party claims under MCL 500.3135(1) and (7), we reverse the trial court’s
decision in this regard and remand for further proceedings consistent with McCormick’s
directives. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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