RYAN CHAMBERS V WERNER W LEHMANN
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STATE OF MICHIGAN
COURT OF APPEALS
RYAN CHAMBERS,
UNPUBLISHED
September 20, 2005
Plaintiff-Appellant,
No. 262502
Berrien Circuit Court
LC No. 03-003378-NI
v
WERNER W. LEHMANN and ANDREWS
UNIVERSITY,
Defendants-Appellants.
Before: Smolenski, P.J., and Murphy and Davis, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(10) in this action involving plaintiff’s claim for noneconomic
damages arising out of an accident in which plaintiff, while operating a motorcycle, was struck
by a vehicle driven by defendant Lehmann. Lehmann was employed by defendant Andrews
University at the time of the accident, and the vehicle driven by Lehmann was owned by
Andrews University. The accident occurred on the grounds of the campus. The trial court
found as a matter of law that plaintiff had not suffered a serious impairment of body function,
thereby failing to establish the threshold requirement necessary to pursue noneconomic damages
under MCL 500.3135. We affirm.
I. Allegations
On May 8, 2003, plaintiff filed a complaint against the two defendants, alleging that
Lehmann, while driving a vehicle owned by Andrews University and during the course of his
employment with Andrews, neglected to observe a stop sign and proceeded through an
intersection where he struck plaintiff’s motorcycle. The accident occurred on May 10, 2000, at
which time plaintiff was a student at Andrews University. Plaintiff alleged that Lehmann was
liable for the injuries incurred by plaintiff on the basis of negligent operation of a motor vehicle
and that Andrews University was vicariously liable.1 Plaintiff asserted that he suffered serious
1
In Lehmann’s response to plaintiff’s request for admissions, Lehmann conceded that he failed
to yield the right of way; however, he maintained that plaintiff was exceeding the speed limit at
(continued…)
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impairment of body function, and more specifically, “acromioclavicular dislocation left shoulder,
traumatic chestwall syndrome, bilateral traumatic patellar chondrosis, and multiple trauma[.]”
Plaintiff sought economic and noneconomic damages.
II. Motion for Summary Disposition and the Trial Court’s Ruling
On October 5, 2004, defendants filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that plaintiff did not have a legitimate claim for economic losses and that,
with respect to noneconomic damages, he failed to establish a serious impairment of body
function where the accident did not produce an “objectively manifested impairment of an
important body function that affects the person’s general ability to lead his or her normal life.”
See MCL 500.3135(7). Defendants relied heavily on Kreiner v Fischer, 471 Mich 109; 683
NW2d 611 (2004), along with medical documentation and plaintiff’s deposition testimony.
This evidence will be explored later in this opinion as part of our analysis.
Plaintiff responded to the motion, arguing that he suffered injuries to both knees, “an
acromioclavicular dislocation of the left shoulder,” and was suffering from traumatic chest-wall
syndrome. On the issue of serious impairment, plaintiff attached only his personal affidavit in
support of the response to defendant’s motion for summary disposition. Plaintiff further argued
that the knee injuries were the most serious of the injuries and that the knee injuries were
comprised of two components, a torn meniscus and ACL laxity.2 Plaintiff maintained that he
was an avid participant in snowboarding, mountain-biking, and rollerblading, all of which he had
to give up entirely because of the injuries to his knees. He also asserted that the injuries affected
his work in a bike shop by preventing him from reaching overhead and stooping on a regular
basis, and he contends that the injuries prevented him from completing a college course and
obtaining a degree in graphic design that would have gone along with his degree in architecture,
thereby leaving him grossly underemployed and necessitating a delayed effort to obtain a graphic
design degree. Plaintiff argued that he endured four years of physical therapy, consumed
medication for pain, and that, ultimately, surgical intervention was required. However, ACL and
meniscus problems continue, and they are permanent in nature. We shall discuss the specifics of
plaintiff’s affidavit below as part of our analysis.
Defendants argued that long stretches of time had elapsed during which plaintiff failed to
obtain medical assistance or treatment, although plaintiff had initially sought and received
(…continued)
the time of the crash. Issues concerning negligence are not the subject of this appeal.
2
Meniscus is “a wedge of cartilage between the articulating ends of the bones in certain joints.”
Random House Webster’s College Dictionary (2001). ACL stands for “anterior cruciate
ligament,” which is defined as follows: “a cruciate ligament of each knee that is attached in front
to the more medial aspect of the tibia, that passes upward, backward, and laterally through the
middle of the knee crossing the posterior cruciate ligament to attach to the femur, that functions
to prevent hyperextension of the knee and to keep the femur from sliding backward in relation to
the tibia, and that is subject to sports injury especially by tearing[.]” Merriam-Webster Medical
Dictionary (2003).
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treatment directly following and soon after the accident.3
ruled in relevant part:
The trial court, relying on Kreiner,
And in this situation the nature and extent of the impairment here are
factors in the Court’s judgment that in the absence of – in the absence of other
evidence that does not appear in the record, the nature and the extent of the
impairment here as far as the time between the accident and when treatment was
sought by this Plaintiff does not inure to the Plaintiff’s benefit. There – he saw
Dr. Kolettis almost immediately after the accident. Dr. Kolettis did not place
restrictions for a prolonged period of time – if I recall correctly, it was about six
to eight weeks – and then didn’t place any other restrictions on the – on the
Plaintiff. In addition, then we have a very prolonged period of time, the – you
know, in – measured in . . . years in which the Plaintiff does not seem to seek any
sort of treatment for his . . . injuries until he sees the one doctor who then decides
that surgery is necessary.
The Court is – based on this record and all the facts and circumstances the
Court has in front of it, the restrictions that the Plaintiff is being placed under,
such as a reduction in the amount of his athletic activity, in the Court’s judgment
does not meet the threshold of – of a change in the course or trajectory of the
Plaintiff’s normal life under the [Kreiner] standard.
To the extent that a class was not taken at Andrews University, it seems to
me that the reason why that class wasn’t completed was in part judgments made
by the Plaintiff that were – that were not directly connected to the nature of his
knee injury. He made some judgments as to what was best for him in terms of his
education and his potential ability to find a job, but the Court doesn’t connect that
to the severity of the knee injury, which in the Court’s judgment is required in
order to conclude that the knee injury changed the course or trajectory of the
[plaintiff’s] life. . . . [T]he Court finds that under the [Kriener] standard that the
Plaintiff does not have a serious impairment of body function because the injury
has not changed the course or trajectory of his life . . . . So the motion for
summary disposition is granted.
On November 17, 2004, an order granting defendants’ motion for summary disposition
was entered relative to the issue of noneconomic damages and serious impairment for the reasons
articulated by the trial court from the bench during the hearing on the motion. On April 14,
2005, a consent judgment in plaintiff’s favor in the amount of $1,350 was entered in regard to
plaintiff’s claim for economic losses. This resolved the last pending claim and closed the case at
the trial court level. Plaintiff thereafter appealed as of right to this Court.
3
At oral argument, plaintiff’s counsel argued that plaintiff had failed to obtain follow-up care for
a significant period of time due to insurance disputes regarding coverage and plaintiff’s lack of
ability to cover medical costs. Counsel could not point to any evidence in the record supporting
his contention.
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III. Appellate Analysis
A. Overview of Plaintiff’s Arguments
Plaintiff first argues that he indeed suffered a serious impairment of body function under
the three-part statutory test and that there was evidence presented sufficient to survive summary
disposition on the issue. He maintains that the injuries affected his general ability to lead his
normal life because the injuries affected and impacted his college education, his employment, his
physical activities, and his physical well-being for the remainder of his life. Plaintiff next
argues that MCL 500.3135 must be read in pari materia with MCL 500.3009, which directs that
vehicle owners carry a minimum of $20,000 in insurance coverage for bodily injury or death of
one person in any one accident, and, therefore, if there is an injury valued at $20,000, it must
meet the threshold requirement of a serious impairment of body function. Plaintiff points to the
fact that mediation, or case evaluation as it is now called, resulted in a finding favorable to
plaintiff in the amount of $100,000. According to plaintiff’s logic, he thus suffered a serious
impairment of body function. Finally, plaintiff argues that Kreiner was wrongly decided where
our Supreme Court ruled that MCL 500.3135 requires that an injury affect the course or
trajectory of a plaintiff’s life.
B. Standard of Review and Summary Disposition Tests
This Court reviews de novo a trial court's ruling to either grant or deny a motion for
summary disposition. Kreiner, supra at 129. Questions of statutory interpretation are likewise
reviewed de novo. Id. Further, questions of law in general are reviewed de novo. See Nat'l
Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004).
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue
regarding any material fact, and the moving party is entitled to judgment or partial judgment as a
matter of law. A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a
light most favorable to the nonmovant, show that there is no genuine issue in respect to any
material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR
2.116(G)(5). "Where the burden of proof . . . on a dispositive issue rests on a nonmoving party,
the nonmoving party may not rely on mere allegations or denials in [the] pleadings, but must go
beyond the pleadings to set forth specific facts showing that a genuine issue of material fact
exists." Quinto, supra at 362. Where the opposing party fails to present documentary evidence
establishing the existence of a material factual dispute, the motion is properly granted. Id. at
363. "A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ."
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003)(citations omitted).
C. Law and Discussion
Under the no-fault act, a plaintiff may recover noneconomic losses only where the
plaintiff has suffered "death, serious impairment of body function, or permanent serious
disfigurement." MCL 500.3135(1). The issue whether a person has suffered a serious
impairment of body function is a question of law for the trial court to decide where the court
finds that there is no factual dispute concerning the nature and extent of the person's injuries, or
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where there is a factual dispute concerning the nature and extent of the person's injuries, but the
dispute is not material to the determination whether the person has suffered a serious impairment
of body function. MCL 500.3135(2)(a). 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 effect of an impairment on the
course of a plaintiff’s entire normal life must be considered. Kreiner, supra at 131. “Although
some aspects of a plaintiff’s entire normal life may be interrupted by the impairment, if, despite
those impingements, the course or trajectory of the plaintiff’s normal life has not been affected,
then the plaintiff’s ‘general ability’ to lead his normal life has not been affected and he does not
meet the ‘serious impairment of body function’ threshold.” Id. The Kreiner majority further
ruled:
In determining whether the course of plaintiff’s normal life has been
affected, a court should engage in a multifaceted inquiry, comparing the
plaintiff’s life before and after the accident as well as the significance of any
affected aspects on the course of plaintiff’s overall life. Once this is identified,
the court must engage in an objective analysis regarding whether any difference
between plaintiff’s pre- and post-accident lifestyle has actually affected the
plaintiff’s “general ability” to conduct the course of his life. Merely “any effect”
on the plaintiff’s life is insufficient because a de minimus effect would not, as
objectively viewed, affect the plaintiff’s “general ability” to lead his life.
The following nonexhaustive list of objective factors may be of assistance
in evaluating whether the plaintiff’s “general ability” to conduct the course of his
normal life has been affected: (a) the nature and extent of the impairment, (b) the
type and length of treatment required, (c) the duration of the impairment, (d) the
extent of any residual impairment, and (e) the prognosis for eventual recovery.
This list of factors is not meant to be exclusive nor are any of the individual
factors meant to be dispositive by themselves. For example, that the duration of
the impairment is short does not necessarily preclude a finding of a “serious
impairment of body function.” On the other hand, that the duration of the
impairment is long does not necessarily mandate a finding of a “serious
impairment of body function.” Instead, in order to determine whether one has
suffered a “serious impairment of body function,” the totality of the circumstances
must be considered, and the ultimate question that must be answered is whether
the impairment “affects the person’s general ability to conduct the course of his or
her normal life.” [Id. at 132-134 (emphasis in original).]
The trial court did not conclude that plaintiff failed to provide sufficient evidence to show
an objectively manifested impairment of an important body function. Rather, it is clear to this
panel that the trial court’s ruling rested solely on a finding that plaintiff failed to show that any
impairment affected his general ability to lead his normal life. The court touched on the limited
medical documentation regarding the placement of restrictions and indicated that the
documentation dealt with treatment provided early on, with plaintiff then failing to seek medical
treatment for a lengthy period of time before finally undergoing surgery. However, it appears
that the essential component of the trial court’s ruling was its conclusion that the diminishment
of athletic activity did not equate to a change in the course or trajectory of plaintiff’s normal life.
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Furthermore, the court did not accept that the injuries had any actual bearing on plaintiff’s
failure to earn a degree in graphic design. The trial court did not address the effect of the
impairment on plaintiff’s employment.
On the basis of the record before us, we hold that reversal is unwarranted. Plaintiff has
simply failed to provide sufficient and proper documentary evidence showing that there exists a
genuine issue of material fact in regard to the necessary showing that the impairment affected his
general ability to lead his normal life.
First, with respect to the particulars of the surgery, its aftermath, and plaintiff’s claims of
permanent knee instability and a prognosis of a lifetime of weakness and difficulty, the only
evidentiary support is plaintiff’s affidavit, yet there is no indication that plaintiff is a doctor or
has the background or competence to discuss these matters. There is no medical documentation
even reflecting that the surgery actually took place, let alone medical documentation on the
specifics of the surgery or showing that the nature of the injuries despite the surgery are such that
plaintiff will have to endure a lifetime of pain, instability, and weakness. Indeed, the report by
Dr. Westerbeke suggests the contrary. Whether plaintiff’s injuries will remain with him for his
lifetime and questions regarding the seriousness of enduring injuries are all matters possibly
within the scope of knowledge held by an expert in a relevant field of medicine such as a doctor
engaged in the practice of orthopedics for our purposes here. See Wiley v Henry Ford Cottage
Hosp, 257 Mich App 488, 492; 668 NW2d 402 (2003)(“Expert testimony is necessary to
establish the standard of care because the ordinary layperson is not equipped by common
knowledge and experience to judge the skill and competence of the service . . . .”). Plaintiff is
not equipped by common knowledge to aver as he did in his affidavit with regard to medical
issues. Id.; see also MRE 702.
With respect to plaintiff’s schooling and the impact of the injury allegedly depriving him
of earning a degree in graphic design, the affidavit is factually insufficient and speculative. In
his affidavit, plaintiff does not provide any insight or facts specifically explaining why he could
not finish the color course, what efforts were made to complete the course, why he thereafter did
not have “time” to retake one course in a two-year period, and why he could not have delayed
graduation by a semester to retake a single extra course in order to obtain the degree. There is
no explanation why he can not go back to Andrews University and take the course now so that a
graphic design degree can be obtained. We have difficulty understanding how it is necessary to
take classes for at least two years (until 2006) at the new school plaintiff is attending in order to,
in essence, make up for one failed class in the spring of 2000.
Plaintiff’s documentary
evidence, lacking in sufficient detail and raising many unanswered questions, does not support a
finding that the impairment affected plaintiff’s general ability to lead his normal life. Any
relationship of this issue to future lost employment fails for the same reasons and because of the
purely speculative nature of the argument.
Next, with respect to snowboarding, mountain-biking, and rollerblading, there is no
medical documentation restricting plaintiff from taking part in these activities. Dr. Westerbeke
stated, “It is my opinion that he does not require continuing medical treatment for these
conditions, nor any restrictions related to his knee problems.” Thus, any restrictions are selfimposed. The Kreiner Court stated that “[s]elf-imposed restrictions, as opposed to physicianimposed restrictions, based on real or perceived pain do not establish [the extent of any residual
impairment].” Kreiner, supra at 133 n 17. Because of the limited context in which the
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preceding quote from Kreiner is found, it does not appear to us that the Court was indicating that
self-imposed restrictions are never worthy of consideration, especially in situations where there
is clear proof of an objectively manifested impairment. Regardless, we find it unnecessary to
explore the matter further because, assuming that plaintiff’s self-imposed restrictions can be
considered, plaintiff does not provide specific information on how much of his daily life had
actually been devoted to the activities in question, and under the demanding standards set forth
by the majority of our Supreme Court in Kreiner, we cannot conclude that the impairment
affected plaintiff’s general ability to lead his normal life for the reasons proffered by plaintiff.
With respect to the injuries’ impact on plaintiff’s work life, plaintiff conceded in his
deposition that his one-time job at Target was not affected by the impairment. Furthermore,
regarding his previous job with the painting company, plaintiff, while stating that he imposed
some restrictions on himself, never indicated that he could not do the work required of him, nor
that he lost time or pay on the job because of his injuries. In regard to the job at the bike shop,
there is no evidence that plaintiff cannot perform his duties or that he has lost time or pay on the
job because of the injuries. He simply avers, without further explanation in relation to relevancy
to the particular position he holds at the shop, that the knee injuries have affected his work by
preventing him from reaching overhead and stooping on a regular basis. The bottom line is that
plaintiff continues to be employed.
In sum, on this record, the trial court did not err in finding that the impairment did not
affect plaintiff’s general ability to lead his normal life.
Plaintiff next argues that MCL 500.3135 must be read in pari materia with MCL
500.3009(1), which directs that vehicle owners carry a minimum of $20,000 in insurance
coverage for bodily injury or death of one person in any one accident, and, therefore, if there is
an injury valued at $20,000, it necessarily meets the threshold requirement of a serious
impairment of body function.4 Plaintiff points to the fact that the case evaluation resulted in an
evaluation favorable to plaintiff in the amount of $100,000. Accordingly, plaintiff c ont e nds
t ha t he has suffered a serious impairment of body function. Plaintiff’s argument is seriously
flawed.
Two statutes that relate to the same subject or share a common purpose are in pari
materia and must be read together as one law. People v Webb, 458 Mich 265, 274; 580 NW2d
884 (1998). The purpose of the in pari materia rule is to give effect to the intent of the
Legislature as found in harmonious statutes. Id. Where two statutes can be construed in a
manner that avoids conflict, such construction should control. Id.
Here, although MCL 500.3009 and MCL 500.3135 both address residual tort liability in a
broad sense, the relevant portion of MCL 500.3009 specifically addresses the subject of
minimum insurance coverage necessary to lawfully operate a vehicle, and the relevant portion of
MCL 500.3135 deals with the subjects of serious impairment of body function and the situations
4
Plaintiff also ties in MCL 500.3131, which provides that residual liability insurance shall cover
bodily injury and shall afford coverage for vehicle liability retained by MCL 500.3135.
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in which a party may remain liable in tort for noneconomic damages. Assuming application of
the in pari materia rule, the statutes can be read harmoniously. MCL 500.3135(7) defines
“serious impairment of body function” without any reference whatsoever to the dollar value
placed on the injury, and plaintiff’s argument is directly contrary to the clear language of MCL
500.3135(7). Simply because one must be insured in accordance with the $20,000/$40,000
statutory minimums does not mean that an injury valued at $20,000 or more must necessarily be
deemed a “serious impairment of body function.” There is no direct correlation between the
statutorily-mandated insurance coverage or the value of an injury and a “serious impairment of
body function.” Moreover, the case evaluation amount relied on by plaintiff has no meaning
outside the context of MCR 2.403, which governs case evaluations and which makes evaluations
relevant only as to potential sanctions following a verdict. MCR 2.403(J)(4) provides that
“[s]tatements by the attorneys and the briefs or summaries are not admissible in any court or
evidentiary proceeding.” And MCR 2.403 does not contain any language suggesting that an
evaluation amount is admissible for consideration at trial or for purposes of summary disposition.
Plaintiff’s argument is devoid of any legal merit.
Regarding plaintiff’s argument that Kreiner was wrongly decided where our Supreme
Court stated that MCL 500.3135 requires that an injury affect the course or trajectory of a
plaintiff’s life, we, as the lower appellate Court in this state, are not in a position to overrule
Kriener and are legally obligated to abide by and apply Kreiner. Even though we also have
serious reservations about the ruling in Kreiner, our Supreme Court has spoken, and its decision
represents binding precedent that must be followed.
IV. Conclusion
The trial court did not err in ruling that plaintiff failed as a matter of law to show that he
had suffered a serious impairment of body function. Moreover, plaintiff’s argument concerning
the in pari materia rule was properly rejected by the trial court as it is devoid of merit. Finally,
we are not permitted to reject or overrule Kreiner as suggested by plaintiff.
Affirmed.
/s/ Michael R. Smolenski
/s/ William B. Murphy
/s/ Alton T. Davis
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