JUAN M BALDERAS V STATE FARM MUTUAL AUTOMOBILE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
JUAN M. BALDERAS,
UNPUBLISHED
May 4, 2006
Plaintiff-Appellee,
v
No. 264854
Ingham Circuit Court
LC No. 04-001204-NI
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant/Counter PlaintiffAppellant,
and
MOHAMMED MACHI and SHAHEM KHAIRY
YAQOUB,
Defendants-Counter Defendants.
Before: White, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
In this action to recover noneconomic damages under the no-fault act,1 defendant appeals
by leave granted from the trial court’s order denying its motion for summary disposition.2 We
reverse. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On January 1, 2002, Shahem Yaqoub was operating a vehicle owned by Mohammed
Machi when Yaqoub struck plaintiff’s vehicle from behind while it was stopped at a red light.
Plaintiff alleged that he suffered severe and permanent injuries constituting a serious impairment
of a major body function and that, because Yaqoub and Machi were uninsured, plaintiff was
entitled to uninsured motorist benefits from his no-fault insurer, defendant State Farm.
1
MCL 500.3101 et seq.
2
Defendants/cross-defendants Shahem Khairy Yaqoub and Mohammed Machi are not parties to
this appeal. Unless otherwise indicated, the term “defendant” as used herein refers solely to
appellant State Farm.
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This Court reviews de novo the grant or denial of a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004); Tipton v William Beaumont Hosp,
266 Mich App 27, 32; 697 NW2d 552 (2005). A motion under MCR 2.116(C)(10) tests the
factual support of a plaintiff's claim. Lind v Battle Creek, 470 Mich 230, 238; 681 NW2d 334
(2004). “When a motion under [MCR 2.116(C)(10)] is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading,
but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that
there is a genuine issue for trial.” MCR 2.116(G)(4).
MCL 500.3135(1) provides that 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(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” (emphasis supplied).
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. [Kreiner, supra at 131.]
We first note that plaintiff has failed to establish an objectively manifested impairment
stemming from the January 2002 accident. Plaintiff did present evidence that he had a subluxed
coccyx and that he had been diagnosed with coccydynia and spinal arthritis. However, he
presented absolutely no evidence connecting these problems to any injury sustained in the
automobile accident. The traffic crash report filed by the Lansing Police Department following
the accident states that plaintiff suffered no injury. A physician whom plaintiff saw within
weeks of the accident—apparently for reasons unrelated to the accident—told plaintiff that he
needed counseling rather than chiropractic treatment, and plaintiff did not seek any further
medical treatment until one year later. An “accident questionnaire” completed by plaintiff at his
chiropractor’s office on January 9, 2002, indicated that he did not sustain any loss of movement
following the accident, and that he was not disabled or unable to perform any work or physical
activities. Although the chiropractor’s report lists several concerns, the report does not associate
those concerns with the accident, and the chiropractor further stated that plaintiff suffered no
disability and that no permanent impairment was anticipated from the accident. Notes taken by a
physician one year after the accident indicated that plaintiff stated that he “does exercise, biking
and weight lifting daily.” X-rays taken more than a year after the accident revealed only “mild
degenerative changes” and a subluxed coccyx, the age of which injury was “radiographically
indeterminate.” Furthermore, plaintiff was involved in several other automobile accidents before
and after the subject accident, and he suffered an on-the-job accident in May 2002 in which he
fell on his tailbone. Plaintiff presented no evidence supporting a finding that his tailbone and
back problems were attributable to the January 2002 accident rather than to any of these other
incidents.
Moreover, even assuming that plaintiff suffered an objectively manifested impairment of
an important body function, he has failed to demonstrate that the impairment has affected his
general ability to live his normal life. The only evidence submitted with respect to the duration
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of the impairment and prognosis for recovery comes from plaintiff’s chiropractor, who stated
that no permanent impairment was anticipated from the accident. Plaintiff’s testimony that he
could no longer sit in one place without shifting positions, thus affecting his ability to ride his
bike and to go to movies and on long trips, does not support a finding that the “trajectory” of his
normal life has been affected. Indeed, he remains able to drive a delivery truck for nine hours
per day, and he missed only one day of work. Moreover, each of these limitations has been selfimposed by plaintiff based on real or perceived pain, rather than imposed by a physician; thus,
this evidence may not be used to establish the extent of plaintiff’s residual impairment. Kreiner,
supra at 134 n 17. In short, “considered against the backdrop of his preimpairment life,”
Kreiner, supra at 136, plaintiff’s “postimpairment life is not so different that his ‘general ability’
to conduct the course of his normal life has been affected.” Id.
Reversed and remanded. We do not retain jurisdiction.
/s/ Helene N. White
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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