VIRGINIA MILLER V DEANNE PURCELL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
VIRGINIA MILLER,
FOR PUBLICATION
June 1, 2001
9:05 a.m.
Plaintiff-Appellee,
v
No. 221473
Saginaw Circuit Court
LC No. 98-025847-NI
DEANNE PURCELL,
Defendant-Appellant.
Updated Copy
August 17, 2001
Before: Holbrook, Jr., P.J., and Hood and Griffin, JJ.
PER CURIAM.
Defendant appeals by leave granted from an order of the trial court denying her motion
for summary disposition under MCR 2.116(C)(10). We reverse.
This appeal arises from plaintiff 's claim against defendant following an automobile
accident at a Saginaw intersection. The complaint alleged that plaintiff suffered injuries to her
neck, arms, and back as a result of the accident, and that these injuries amounted to a serious
impairment of body function within the meaning of § 3135 of the no-fault act. MCL 500.3135.
Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff failed
to meet the tort threshold of MCL 500.3135. The trial court denied defendant's motion, ruling
that factual issues existed with respect to the nature and extent of plaintiff 's injuries.
We review a grant or denial of summary disposition de novo. Churchman v Rickerson,
240 Mich App 223, 227; 611 NW2d 333 (2000). When reviewing a motion for summary
disposition under MCR 2.116(C)(10), we review the affidavits, pleadings, depositions,
admissions, and documentary evidence submitted by the parties in a light most favorable to the
nonmoving party. Stevenson v Reese, 239 Mich App 513, 516; 609 NW2d 195 (2000). The
motion should be granted if the affidavits or other documentary evidence demonstrate that there
is no genuine issue with respect to any material fact, and the moving party is entitled to judgment
as a matter of law. Id.
After reviewing the record evidence in the light most favorable to plaintiff, we conclude
that the trial court erred in denying defendant's motion for summary disposition. MCL
500.3135(1) provides:
-1-
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. [Emphasis supplied.]
Because plaintiff initiated this suit in 1998, the no-fault act amendments enacted as part
of 1995 PA 222 apply to her suit. May v Sommerfield, 239 Mich App 197, 201; 607 NW2d 422
(1999). The Legislature amended MCL 500.3135(2)(a)(i) and (ii), to read:
(a) The issues of whether an injured person has suffered serious
impairment of body function or permanent serious disfigurement are questions of
law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person's injuries.
(ii) 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 or permanent
serious disfigurement. . . .
As this Court has observed, by enacting these amendments of the no-fault act, the
Legislature returned the determination of threshold injury to the trial court. Kern v BlethenColuni, 240 Mich App 333, 339; 612 NW2d 838 (2000). Before the statutory amendments, the
question whether a plaintiff suffered the serious impairment of a body function had been reserved
to the trier of fact whenever the evidence would cause reasonable minds to differ regarding the
answer. Id. As a result of the legislative amendments, the issue whether plaintiff suffered a
serious impairment of body function should be submitted to the jury only when the trial court
determines that an "outcome-determinative genuine factual dispute" exists. Id. at 341.
In May, supra, this Court set forth a framework for trial courts to follow when
considering if factual disputes exist with regard to the "nature and extent" of the plaintiff 's
injuries:
In determining the "nature" of plaintiff 's injuries, the trial court should
make appropriate findings concerning whether there is a factual dispute with
respect to whether plaintiff has an "objectively manifested" impairment and, if so,
whether "an important body function" is impaired. In determining the "extent" of
plaintiff 's injuries, the trial court should make appropriate findings concerning
whether there is a factual dispute with respect to whether the impairment affects
plaintiff 's "general ability to lead his [or her] . . . normal life." [Id. at 203.]
In the present case, the trial court concluded that factual issues existed that precluded it
from deciding whether plaintiff suffered a serious impairment of body function as a matter of
law. We disagree. Our review of the record satisfies us that an outcome-determinative factual
-2-
dispute does not exist with regard to the nature and extent of plaintiff 's injury. Therefore, the
trial court was required to rule whether plaintiff suffered a "serious impairment of body
function." MCL 500.3135(2)(a)(i) and (ii).
It appears from the record that the trial court concluded that plaintiff 's complaints of pain
in her day-to-day activities may elevate her injury to a serious impairment of body function.
Because this determination involves a question of law, our review is de novo. Kern, supra at
342.
MCL 500.3135(7), as amended, defines serious impairment of body function in the
following terms: "'serious impairment of body function' means an objectively manifested
impairment of an important body function that affects the person's general ability to lead his or
her normal life."
In Kern, supra at 341, this Court set forth a "non-exhaustive" list of factors to consider
when determining whether the impairment of an important body function is serious within the
meaning of MCL 500.3135(7). These include the extent of the injury, the treatment required, the
duration of disability, the extent of residual impairment, and the prognosis for eventual recovery.
In Kern, supra at 342, the Court also observed that the Legislature's amendment of MCL
500.3135 reflected a return to the standard first articulated in Cassidy v McGovern, 415 Mich
483, 505; 330 NW2d 22 (1982), in which our Supreme Court opined:
Another significant aspect of the phrase "serious impairment of body
function" is that it demonstrates the legislative intent to predicate recovery for
noneconomic loss on objectively manifested injuries. Recovery for pain and
suffering is not predicated on serious pain and suffering, but on injuries that affect
the functioning of the body.
The record indicates that plaintiff suffered an acromioclavicular separation, as well as
mild tendonitis.1 Plaintiff initially underwent physical therapy after the accident to alleviate her
pain; however, the record indicates that she ceased this treatment and visited an orthopedic
surgeon. According to the record, at the time of deposition plaintiff was taking prescription pain
medication daily.
However, assuming that plaintiff 's injury is objectively manifested, we are satisfied that
plaintiff has not suffered a serious impairment of body function because her general ability to
1
Plaintiff has improperly attempted to expand the scope of the record by appending to her brief
on appeal a copy of a magnetic resonance imaging (MRI) that indicates she may suffer from
spinal problems. Because this evidence is improperly before this Court, we decline to review it.
MCR 7.210(A)(1); Krohn v Sedgwick James of Michigan, Inc, 244 Mich App 289, 297, n 4; 624
NW2d 212 (2001); Harkins v Dep’t of Natural Resources, 206 Mich App 317, 321-322; 520
NW2d 653 (1994).
-3-
lead her normal life has not been altered by her injury. During her deposition, plaintiff admitted
that she was able to perform all the same activities that she did before the accident. Specifically,
plaintiff has been able to work forty hours a week since the accident2 and is able to perform
household tasks. Plaintiff has not demonstrated that any aspect of her day-to-day activities has
been curtailed as a result of her injury. Furthermore, it appears from the record that plaintiff 's
injury was minor, she did not have to undergo a significant amount of medical treatment, and
there is no indication that her prognosis for recovery is anything but favorable.
Plaintiff points to her inability to knit and having to type one-handed at times as evidence
of a serious impairment of body function. While we sympathize with plaintiff, the record is clear
that her general ability to lead her normal life has not been significantly altered by her injury.
Burk v Warren (After Remand), 137 Mich App 715; 359 NW2d 541 (1984), and cases cited
therein.
Because plaintiff failed to meet the threshold of § 3135, we hold that the trial court erred
in not granting summary disposition in favor of defendant.
Reversed.
/s/ Donald E. Holbrook, Jr.
/s/ Harold Hood
/s/ Richard Allen Griffin
2
The automobile accident at issue occurred on Saturday, August 9, 1997, at approximately 5:30
p.m. Plaintiff, who is an account clerk for the Saginaw County Register of Deeds, worked a full
day on Monday, August 11, 1997, and has missed no time from work since the accident other
than for doctor appointments.
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
