SHARON MINCOFF V ROBERT C ANDERSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 31, 1998
Schoolcraft Circuit Court
LC No. 96-002393 NI
ROBERT C. ANDERSON,
Before: Markman, P.J., and Griffin and Whitbeck, JJ.
In this action under the no-fault automobile insurance act, MCL 500.3101 et seq.; MSA
24.13101 et seq., plaintiff appeals as of right the order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10), based on plaintiff’s lack of a “serious impairment of body
function” under MCL 500.3135(1); MSA 24.13135(1). We affirm.
On January 21, 1994, plaintiff was involved in a low-speed automobile accident with defendant
in Manistique, Michigan. Plaintiff was stopped at a stop sign in her pickup truck when defendant’s Jeep
collided with the back of her truck at an estimated speed of five miles per hour. Plaintiff’s truck
appeared wholly unaffected, the bumper of defendant’s Jeep was only minimally affected and neither
party appeared hurt, so both parties agreed to leave the scene without contacting the police. Although
plaintiff claimed that within an hour she developed a burning sensation near her neck that stiffened within
a day, she did not seek any medical attention for fifty-four days. Plaintiff explained the delay by saying
that she did not know that her automobile insurance would cover medical expenses.
Plaintiff asserted that she thereafter began experiencing pain in her neck, shoulder, right arm and
chest. From March 1994 until June 1995, plaintiff visited numerous doctors and physical therapists in
an effort to treat her injuries and in contemplation of this lawsuit. She first visited Dr. E.H. Klumpp III,
a chiropractor, on March 16, 1994. He diagnosed plaintiff with “chiropractic spinal subluxation
complexes,1 cervical radiculitis,2 whiplash and probable cervical discopathy, 3” and found some
reduction in plaintiff’s range of motion, although x
-rays revealed “no evidence of recent fractures or
dislocations.” Plaintiff claimed that Dr. Klumpp ordered her to stop working at her waitressing position
for a couple of weeks in May 1994, but the doctor’s records do not state that he ordered her to stop
In April 1994, plaintiff visited Robert J. Urban, M.D. By this time, the doctor noted that she
had full range of motion of the neck and right arm without pain. Dr. Urban did not prescribe any work
cessation for plaintiff, but did refer her to Pratap C. Gupta, M.D., a neurologist. Dr. Gupta noted that
plaintiff’s neck was supple and that she had full range of motion of her neck with minimal pain. He
diagnosed plaintiff with a “mild whiplash injury,” and stated that she was “somewhat recovering,”
although she had exacerbated the injury when she attempted to put up blinds three weeks before the
medical visit. Dr. Gupta also gave plaintiff permission to return to work.
From June 7, 1994, through July 6, 1994, plaintiff worked with a physical therapist, A. Hubble,
who found only some tightness and tenderness in plaintiff’s neck and upper back. Plaintiff stopped
seeing this therapist suddenly for unidentified reasons. Plaintiff then began seeing another doctor,
Beverly Zelt, M.D., on January 26, 1995. Although plaintiff reported that she was having difficulty
working because her pain made carrying trays difficult, the doctor found no substantial restriction of
rotation or bending, full range of motion and extension and only “slight tenderness.”
On April 7, 1995, plaintiff visited Richard Vermeulen, M.D. He found that plaintiff’s range of
motion in the neck was decreased “three fingers between chin and sternum,” and the range of motion in
her right pectoralis major was significantly limited. His diagnosis was “post-traumatic myofascial
syndrome.”4 Subsequently, on June 5, 1995, another physical therapist found normal extension,
rotation and range of motion. By May 7, 1997, plaintiff’s medical evaluation revealed no abnormalities,
and Michael E. Holda, M.D. determined that plaintiff could work even in a labor-intensive job without
On January 16, 1996, plaintiff filed her complaint against defendant for accident-related
noneconomic losses. Plaintiff attempted to recover noneconomic damages by alleging that she suffered
a “serious impairment of body function” under the scope of the Michigan no-fault act. Pursuant to the
version of the no-fault act that was in effect in January 1996, before the March 1996 amendments that
changed the standard of review and added a specific definition of the phrase “serious impairment of
body function,” the trial court granted defendant’s motion for summary disposition. MCL
500.3135(2)(7); MSA 24.13135(2)(7).5 The trial court found as a matter of law that plaintiff had not
suffered a “serious impairment of body function.” MCL 500.3135(1); MSA 24.13135(1).
This Court reviews decisions on motions for summary disposition de novo to determine if the
moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206
Mich App 83, 85; 520 NW2d 633 (1994). MCR 2.116(C)(10) permits summary disposition when,
except for the amount of damages, there is no genuine issue concerning any material fact and the moving
party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the
pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and
grant the benefit of any reasonable doubt to the opposing party. Stehlik, supra at 85.
Section 3135(1) of the Michigan no-fault act, that was not amended by the March 1996
amendments, permits a person injured in an automobile accident to recover noneconomic damages only
in the following circumstances:
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(1); MSA 24.13135(1).]
“The ‘serious impairment of body function’ threshold was designed to eliminate suits based on clearly
minor injuries, and those injuries which did not seriously affect the ability of the body, in whole or in
part, to function.” DiFranco v Pickard, 427 Mich 32, 60; 398 NW2d 896 (1986).6 Two factors
must be evaluated to determine whether a “serious impairment of body function” has occurred such that
a plaintiff may sue for noneconomic losses:
a) What body function, if any, was impaired because of injuries sustained in a
motor vehicle accident?
b) Was the impairment of body function serious? [Id. at 67.]
The focus is “not on the injuries themselves, but how the injuries affected a particular body function.”
Id. To determine this, “[g]enerally, medical testimony will be needed to establish the existence, extent,
and permanency of the impairment.” Id.
Accordingly, in an effort to analyze this case consistently with DiFranco, we must first
determine which of plaintiff’s body functions have been impaired as a result of her accident. According
to her medical records, plaintiff ’s body functions were affected in that her ability to turn her neck, her
ability to reach out with her right arm and her ability to carry things with her right arm were impaired.
The next inquiry is whether these impairments were serious. Once an impairment is established, the
factors to be evaluated in deciding whether it is serious are “the extent of the impairment, the particular
body function impaired, the length of time the impairment lasted, the treatment required to correct the
impairment, and any other relevant factors.” Id. at 39-40.
First, it is instructive that plaintiff did not immediately report any injury or pain after the accident.
Indeed, she did not visit a doctor for fifty-four days. In Johnston v Thorsby, 163 Mich App 161, 163;
413 NW2d 696 (1987), this Court relied on the plaintiff’s two-year delay in seeking help as part of its
basis for concluding she had not suffered a serious impairment of body function as a matter of law.
Although plaintiff’s delay here was not as long, in our judgment it was a rather lengthy delay for an
impairment that plaintiff claimed was “serious.”
Second, although plaintiff complained of pain, she was not diagnosed with any substantial
abnormalities or injuries. Dr. Klumpp diagnosed plaintiff with seemingly the most serious problems, but
even this diagnosis is consistent with simple strains and pulls. The relatively minor damage is highlighted
by the diagnoses of the later medical personnel, who found nearly normal or normal ranges of motion
and extension of plaintiff’s neck and arm and at most, a “mild whiplash injury.” Although plaintiff may
have suffered some pain and decrease of her range of motion in her arm and neck for a time, her injury
is similar to that suffered by the plaintiff in Kallio v Fisher, 180 Mich App 516, 518; 448 NW2d 46
(1989), which this Court ruled was not “serious.” There, the plaintiff was diagnosed by one physician
with “chronic cervical-dorsal strain” from whiplash and pain the left side of his neck. Id. Although the
focus is on how the injury affected body function, rather than the injury itself, it is instructive when, as
here, the injury was significantly less extensive than those that cause much pain, considerably limit
movement or activities, or affect important areas of the body such as the brain.
Third, and related closely to the injury suffered, plaintiff did not need significant medical
treatment to correct her impairment. See DiFranco, supra at 40. Plaintiff apparently visited physical
therapists for a short time, and found massage helpful. However, she was never admitted into the
hospital and never required surgery, traction, significant medication or even bed rest. Again, this factor
points out the relatively less serious nature of the injury in that it could be remedied without invasive or
Fourth, plaintiff’s impairment was not permanent, degenerative or at all lengthy. See id. at 40,
88. Plaintiff at worst suffered lingering effects of her whiplash injury up to one year after the accident.
However, all vestiges of the injury seem to have disappeared by the time of the court hearing. Although
this factor is not dispositive, it is instructive that the injury was not to an important life organ that would
be more seriously impacted by a short impairment, and that any impairment to plaintiff’s arm and neck
lessened before a significant period of time had passed. Indeed, we also take into account that plaintiff
reported to Dr. Gupta that she had exacerbated her injury while attempting to install blinds; her whiplash
injury may well have fully healed sooner if not for this additional injury.
Lastly, any impairment to plaintiff’s neck and arm did not seem to affect her life in any manner.
None of the doctors that plaintiff visited ever restricted her lifestyle. They told her that she could return
to work and that no restrictions on her physical activities were needed. Plaintiff’s last evaluation even
showed that she could work in a labor-intensive job without restrictions. There was apparently little that
plaintiff’s “impaired body function” actually limited.
On the basis of these factors, we conclude that plaintiff falls significantly short of meeting the
“serious impairment of body function” threshold. Plaintiff’s initial impairment was not substantial,
required little, if any, treatment, and was not long-term. The injuries only minimally affected the function
of plaintiff’s neck and arm and no reasonable argument can be made that plaintiff suffered a “serious
impairment of a body function.” Therefore, the trial court properly granted defendant’s motion for
Plaintiff also challenges the trial court’s order granting defendant’s motion in limine to exclude
evidence of excess economic losses. Although it is not completely clear on what basis the trial court
excluded this information, it appears that it was either because the information would have caused undue
confusion or wasted time under MRE 403 or because the trial court concluded that there was no
genuine issue of material fact so that summary disposition pursuant to MCR 2.116(C)(10) was
appropriate. We will not disturb a trial court’s decision to exclude evidence absent an abuse of
discretion. People v Lugo, 214 Mich App 699, 709; 542 NW2d 921 (1995). We review a grant or
denial of summary disposition de novo. Stehlik, supra at 85.
The pre-amendment version of section 3135(2)(c) of the no-fault law provided that a plaintiff
injured in an automobile accident could seek damages for “allowable expenses, work loss, and
survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3
limitations contained in those sections.” MCL 500.3135(2)(c); MSA 24.13135(2)(c). A claim for
damages under this section does not depend on whether the plaintiff suffered a threshold injury such as
“serious impairment of body function.” Cochran v Myers, 146 Mich App 729, 731-732; 381 NW2d
800 (1985). Plaintiff ’s only claim under section 3135(2)(c) would be for excess work loss benefits.7
Work loss is described in the statute as “[w]ork loss consisting of loss of income from work an injured
person would have performed during the first 3 years after the date of the accident if he or she had not
been injured.” MCL 500.3107(b); MSA 24.13107(b). Plaintiff may sue defendant only for work loss
amounts which exceed this three-year limitation in light of the pre-amendment MCL 500.3135(2)(c);
Plaintiff ’s accident occurred on January 21, 1994, so the three-year limit was reached on
January 21, 1997, and any claim for excess work loss must be based on impairments existing after this
date. However, plaintiff failed to present any evidence indicating that she is entitled to work loss
benefits for the period after January 21, 1997. Her own doctors advised her that she could return to
her job as a waitress (her former occupation). Further, she is not entitled to work loss benefits simply
because she cannot work in her former occupation. Rather, plaintiff has a duty to mitigate any damages
by seeking alternative work. Bak v Citizens Ins Co, 199 Mich App 730, 739; 503 NW2d 94 (1993).
Plaintiff did not make more than a token attempt to find alternative work, yet she freely admits that she
is able to handle jobs other than waitressing. Although reasonableness of mitigation is a question of fact,
id., plaintiff has presented so little evidence of an attempt to mitigate that a jury determination of the
reasonableness of her mitigation is unnecessary. Therefore, the trial court’s ruling to exclude evidence
of excess economic loss was correct, whether it is viewed as an exclusion under MRE 403 or as a grant
of partial summary disposition under MCR 2.116(C)(10).
For these reasons, we affirm the trial court’s disposition of this case.
/s/ Stephen J. Markman
/s/ Richard Allen Griffin
/s/ William C. Whitbeck
“Subluxation” is an incomplete dislocation. Stedmans Medical Dictionary (21st ed) (1970).
“Radiculitis” is inflammation of a portion of a spinal nerve root. Stedmans Medical Dictionary (21st
“Discopathy” is a disease of a disk. Stedmans Medical Dictionary (21st ed) (1970).
“Myo” is a prefix meaning “muscle,” and “fascia” is the “sheet of fibrous tissue which envelops the
body beneath the skin, and also encloses the muscles and groups of muscles, and separates their several
layers or groups.” Stedmans Medical Dictionary (21st ed) (1970).
This opinion is based on the version of the no-fault act that was in effect in January 1996.
DiFranco is not consistent with the pertinent 1996 amendments to the no-fault act. However,
DiFranco is applicable to the case at hand, as is the pre-amendment law, because the case was filed
prior to the effective date of the amendment.
Plaintiff’s insurance company paid all of her accident-related medical expenses, no death occurred
such that survivor’s loss benefits are in issue and plaintiff has made no claim for any other type of