DANIEL LEE STRAUB V PHILLIP MICHAEL COLLETTE
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
September 16, 2003
9:10 a.m.
DANIEL LEE STRAUB,
Plaintiff-Appellant,
v
No. 236505
Monroe Circuit Court
LC No. 00-011405-NI
PHILLIP MICHAEL COLLETTE and TERESA
M. HEIL-WYLIE,
ON REMAND
Updated Copy
November 7, 2003
Defendants-Appellees.
Before: Smolenski, P.J., and White1 and Kelly, JJ.
SMOLENSKI, P.J.
This appeal, involving the issue whether plaintiff Daniel L. Straub suffered a "serious
impairment of body function," as defined in MCL 500.3135(7) of the no fault act, is once again
before us by order of the Michigan Supreme Court, which, in lieu of granting leave to appeal,
vacated our previous decision, Straub v Collette, 254 Mich App 454; 657 NW2d 178 (2002), and
remanded the matter for consideration in light of its order in Kreiner v Fischer, 468 Mich 884
(2003). 468 Mich 918 (2003). The Supreme Court order of remand in Kreiner stated, in
pertinent part:
The no-fault act, 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." The circuit
court granted defendant's motion for summary disposition, concluding that
plaintiff 's impairment is not "serious enough" to meet the tort threshold. The
Court of Appeals reversed, concluding that plaintiff is not required to show that
his impairment "seriously" affects his ability to lead his normal life in order to
meet the tort threshold. The Court of Appeals then concluded that, if the facts as
alleged by plaintiff are true, his impairment has affected his general ability to lead
1
Judge Helene N. White was substituted on remand after the retirement of Judge Harold Hood,
who was on the original panel of judges.
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his normal life. In our judgment, both the circuit court and the Court of Appeals
erred. Although a serious effect is not required, any effect does not suffice either.
Instead, the effect must be on one's general ability to lead his normal life.
Because the Supreme Court believes that neither of the lower courts accurately
addressed this issue, the case is remanded to the Court of Appeals for it to
consider whether plaintiff 's impairment affects his general ability to lead his
normal life. [Id. at 884-885 (emphasis in original).]
After consideration of the Supreme Court's order, we again reverse the trial court's judgment
granting defendants' motion for summary disposition.
This case arose from a traffic accident that occurred on September 19, 1999, when
defendant Phillip M. Collette, driving a car owned by him and defendant Teresa M. Heil-Wylie,
turned onto a street in front of plaintiff, who was driving his motorcycle. As a result of the
collision, plaintiff suffered injuries to his nondominant left hand. In particular, he was diagnosed
with a "closed left fifth metacarpal displaced neck fracture," known less formally as a "boxer's
fracture," as well as open wounds, including extensor tendon injuries, to his middle and ring
fingers. Plaintiff underwent outpatient surgery twice, once to repair the damage to his left hand
and again to remove the pins that were placed in his hand during the initial surgery. Plaintiff
also wore a cast for a time, attended physical therapy, and has a continuing inability to
completely straighten out his middle finger and to completely close his left hand.
The no-fault act generally abolished tort liability with regard to the use of a motor
vehicle. MCL 500.3135(3). But a statutory exception to this general rule provides that tort
liability remains for noneconomic loss if the injured person suffered "serious impairment of body
function." MCL 500.3135(1). Whether a person suffered a serious impairment of body function
is a question of law for the court to decide where, as here, there is an absence of an outcomedeterminative genuine factual dispute regarding the nature and extent of the injuries. MCL
500.3135(2); Kern v Blethen-Coluni, 240 Mich App 333, 341-342; 612 NW2d 838 (2000). In
addition, we review de novo a trial court's decision regarding a motion for summary disposition.
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
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." Accordingly, the existence of an impairment of an important body
function is measured by an objective standard and the effect of the impairment on the injured
person is measured by a subjective standard. The parties do not dispute that plaintiff 's injuries
were objectively manifested or that the injuries impaired the use of plaintiff 's hand, an important
body function. The question at issue is whether plaintiff 's injuries affected his general ability to
lead his normal life. In this regard, the trial court erred in applying an objective standard, citing
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Walker v Caldwell, 148 Mich App 827; 385 NW2d 703 (1986), a case that was decided before
the 1995 amendments of the no-fault act,2 which defined "serious impairment of body function."
As the Supreme Court emphasized in its order in Kreiner, supra at 885, although "a
serious effect is not required, any effect does not suffice either. Instead, the effect must be on
one's general ability to lead his normal life." (Emphasis in original.) In measuring the effect of
the impairment on the injured person's general ability to lead his or her normal life, it is
appropriate to compare the person's "lifestyle before and after the accident." May v Sommerfield
(After Remand), 240 Mich App 504, 506; 617 NW2d 920 (2000).
Defendants assert that we incorrectly concluded in our prior decision in this case that
plaintiff suffered a serious impairment of body function where his injuries prevented him from
temporarily performing the "single, specific activity" of guitar playing. Defendants misread our
conclusion, one that we reiterate here. First, we note that an injury does not need to be
permanent in order to constitute a serious impairment of body function. Kern, supra at 343.
Second, our finding that plaintiff 's injuries affected his general ability to lead his normal
life is not based on one factor, but rather many. We read the Supreme Court's order as
instructing us to consider all aspects of plaintiff 's life, including employment, home life,
relationships, daily activities, and recreational activities. See also Kreiner v Fischer (On
Remand), 256 Mich App 680, 689; ___ NW2d ___ (2003). Before the accident, plaintiff worked
full-time as a cable lineman. For about three years preceding the accident, plaintiff also played
the bass guitar in a band that performed almost every weekend, on both Friday and Saturday
nights, and practiced three to four days a week. Additionally, plaintiff lived alone and was solely
responsible for maintaining his house and property, and performing personal tasks.
As a result of his injuries, plaintiff completely lost the use of his left hand for three
months. Plaintiff was off work as a cable lineman until he returned to work part-time in
November 1999, with instructions from his doctor not to use his left hand. Plaintiff 's injuries
also prevented him from playing the guitar, and he could not perform or had significant difficulty
performing household and personal tasks, such as washing dishes, doing yard work, and
showering and dressing himself, until December 1999. In addition, plaintiff had difficulty
operating his "bow shop" and processing deer during the 1999 deer hunting season. Plaintiff
returned to work full-time as a cable lineman on December 14, 1999, but was unable to play in
the band until mid-January 2000 because he "didn't have the strength in [his] fingers. They
wouldn't work." When plaintiff did begin to play the guitar again, he had to change his finger
formation to accommodate his inability to completely straighten his left middle finger.
Therefore, not only was plaintiff 's ability to work as a cable lineman and bass guitar
player affected, but his ability to perform everyday household tasks and operate his bow shop
were significantly affected as well. Our emphasis regarding plaintiff 's guitar playing should not
be construed as constituting the sole reason supporting our conclusion that plaintiff suffered a
2
1995 PA 222.
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serious impairment of body function. But it is a factor in our determination in this case because
of its significance in plaintiff 's life. Although plaintiff had a "day" job, playing in the band was
no less an integral part of plaintiff 's life. As this Court stated in Kreiner (On Remand), supra at
688, "Employment or one's livelihood, for a vast majority of people, constitutes an extremely
important and major part of a person's life. Whether it be wrong or right, our worth as
individuals in society is often measured by our employment." As the Kreiner Court also
recognized, "injuries affecting the ability to work, by their very nature, often place physical
limitations on numerous aspects of a person's life." Id. at 689. We are not suggesting that any
injury sustained in a motor vehicle accident that results in a plaintiff losing the ability to work
constitutes "serious impairment of body function." But we are cognizant of the reality, as was
this Court in Kreiner (On Remand), supra, that such an injury, "under the right factual
circumstances, can be equated to affecting [a] person's general ability to lead his or her normal
life." Id. at 688 (emphasis in original). We find that these circumstances exist here.
In this case, plaintiff lost the use of his left hand for three months, which significantly
affected plaintiff 's general ability to lead his normal life given the work and tasks that he
performed before the accident "in his normal life." And so, we conclude as a matter of law that
plaintiff suffered "serious impairment of body function" as defined by MCL 500.3135(7).
Accordingly, the trial court erred in granting summary disposition in favor of defendants and we
remand this case to the trial court for further proceedings.
Reversed and remanded. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Helene N. White
/s/ Kirsten Frank Kelly
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