KENNETH SPIES V ALLYN PARKER
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH SPIES,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellant,
v
No. 227581
Arenac Circuit Court
LC No. 99-006234-NI
ALLYN PARKER and JASON PARKER,
Defendants-Appellees.
Before: Fitzgerald, P.J., and Bandstra and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right a jury verdict of no cause of action in this automobile
negligence case. We affirm.
Plaintiff sought noneconomic damages for injuries he sustained in a single-vehicle
accident. At the close of plaintiff’s case, defendants moved for a directed verdict. The trial court
denied the motion because it found a factual dispute existed regarding whether plaintiff suffered
serious impairment of body function or permanent serious disfigurement. The jury found that
defendant’s negligence proximately caused plaintiff’s injury, but that plaintiff’s injuries did not
meet this no-fault threshold for recovery.
Plaintiff asserts that the trial court erred in failing to decide the threshold issue as a matter
of law. A tortfeasor is subject to liability for noneconomic damages caused by an automobile
accident if the injured party suffers “death, serious impairment of body function, or permanent
serious disfigurement.” MCL 500.3135(1). Because plaintiff filed his claim in 1999, the 1995
amendments to the no-fault insurance act, MCL 500.3101 et seq., apply. MCL 500.3135(2).
Under those amendments, whether a person has suffered serious impairment of body function or
permanent serious disfigurement is a question of law for the trial court if no factual dispute exists
concerning the nature and extent of the person’s injuries or, if there is a dispute, if it is
immaterial to the determination whether plaintiff suffered serious impairment of body function
or permanent serious disfigurement. MCL 500.3135(2)(a); May v Sommerfield, 239 Mich App
197, 201; 607 NW2d 422 (1999).
We agree with plaintiff that the trial court erred by failing to determine whether a factual
dispute existed regarding the nature and extent of plaintiff’s injuries and submitting the threshold
issue to the jury. In doing so, the court appears to have relied on DiFranco v Pickard, 427 Mich
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32; 398 NW2d 896 (1986), which the 1995 amendments to the no-fault act overturned. See Kern
v Blethen-Coluni, 240 Mich App 333, 338; 612 NW2d 838 (2000).
However, no remand is necessary. Our review of the record found no material conflict
between plaintiff’s testimony, his doctors’ testimony, and the testimony of a doctor who
provided an independent medical examination. Plaintiff and the doctors testified that plaintiff
suffered a comminuted fracture of his left ulna, which required two surgeries to correct, and
lacerations to his lower lip. The witnesses agreed that as a result, plaintiff’s range of motion in
his left arm is limited, he suffers sensitivity to touch and occasional pain in his arm, and he has a
six- or seven-inch scar on his forearm. Plaintiff testified that he has resumed nearly all his preinjury activities, although he cannot participate fully in certain sports, and the doctors agreed that
no restrictions were necessary on plaintiff’s activities. As a result, we need not remand this case
to the trial court for a determination whether a material factual dispute existed concerning the
nature and extent of plaintiff’s injuries. Id. at 343-344.
Whether those injuries constituted either serious impairment of body function or
permanent serious disfigurement under the statute presents a question of law. Id. at 341.
“Serious impairment of body function” is defined 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). An important body function is one that affects a person’s general
ability to live a normal life, which we determine by comparing plaintiff’s pre- and post-injury
activities. Kern, supra at 340; Miller v Purcell, 246 Mich App 244, 249-250; 631 NW2d 760
(2001).
Plaintiff suffered an objectively manifested impairment of an important body function,
namely use of his arm.1 See Kroft v Kines, 154 Mich App 448, 452; 397 NW2d 822, vacated on
other grounds 428 Mich 879 (1987). Plaintiff underwent two surgeries to repair the broken ulna
and wore casts on his arm for several weeks. Plaintiff’s doctor prohibited him from working
immediately after the accident, and plaintiff missed several weeks of school while taking
narcotic pain medications. Additionally, plaintiff’s range of motion is limited, and he suffers
occasional pain and sensitivity to touch in his arm.
Although plaintiff’s injury impaired the use of his arm, the statute further requires that
the impairment was “serious,” meaning that it affected plaintiff’s “general ability to lead his . . .
normal life.” MCL 500.3135(7). While plaintiff underwent two surgeries to repair his fractured
arm, the injury prevented him from performing activities of his daily life for only a few weeks.
Plaintiff suffers little residual impairment, specifically a seven- to fifteen-degree loss of
pronation in his left arm. Further, he was provided a positive prognosis. We conclude that
plaintiff’s injuries did not affect his general ability to live his normal life and, consequently, he
did not suffer serious impairment of body function.
1
Plaintiff does not argue and did not provide evidence that the injury to his mouth impaired any
important body function.
-2-
Plaintiff also did not suffer permanent serious disfigurement. Whether an injury amounts
to a permanent serious disfigurement depends on its physical characteristics rather than its effect
on the plaintiff’s ability to live a normal life. Kosack v Moore, 144 Mich App 485, 491; 375
NW2d 742 (1985). Plaintiff has a seven-inch scar on his non-dominant arm that he noted could
be covered by long sleeves, and a small scar on the inside of his lower lip, unnoticeable in
everyday encounters. We do not doubt that these scars are permanent, but they do not constitute
serious disfigurements for purposes of the statute.
In light of these conclusions, we need not address plaintiff’s remaining claims. We
affirm.
/s/ Richard A. Bandstra
I concur in result only.
/s/ E. Thomas Fitzgerald
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