MOHAMAD HAMAD V FARM BUREAU GENERAL INS CO OF MICH
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MOHAMAD HAMAD,
UNPUBLISHED
November 28, 2006
Plaintiff-Appellant,
No. 265971
Wayne Circuit Court
LC No. 04-422297-NZ
v
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant-Appellee.
Before: Kelly, P.J., and Markey and Meter, JJ.
PER CURIAM.
In this action to recover noneconomic damages under the no-fault act, MCL 500.3101 et
seq., plaintiff appeals as of right from a circuit court order granting summary disposition to
defendant under MCR 2.116(C)(10). The court concluded that plaintiff had not established that
his closed-head injury or injuries to his neck and back met the threshold of a serious impairment
of body function. We affirm in part, reverse in part, and remand this case for further
proceedings. This case is being decided without oral argument under MCR 7.214(E).
This Court reviews de novo a trial court’s decision to grant summary disposition.
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). “A motion for summary
disposition pursuant to MCR 2.116(C)(10) tests the factual support of a claim. The motion
should be granted if the evidence demonstrates that no genuine issue of material fact exists, and
that the moving party is entitled to judgment as a matter of law.” Id. (citation omitted).
MCL 500.3135 provides, in pertinent part:
(1) 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.
(2) For a cause of action for damages pursuant to subsection (1) . . . all of
the following apply:
-1-
(a) The issues of whether an injured person has suffered serious
impairment of body function or permanent serious disfigurement are questions of
law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person's injuries.
(ii) There is a factual dispute concerning the nature and extent of the
person's injuries, but the dispute is not material to the determination as to whether
the person has suffered a serious impairment of body function or permanent
serious disfigurement. However, for a closed-head injury, a question of fact for
the jury is created if a licensed allopathic or osteopathic physician who regularly
diagnoses or treats closed-head injuries testifies under oath that there may be a
serious neurological injury. [Emphasis added.]
In this case, plaintiff did not present medical testimony that dealt with his closed-head
injury and satisfied the second sentence of subsection 3135(2)(a)(ii).1 In our opinion, the
wording of MCL 500.3135(2)(a) is somewhat ambiguous. It is at least arguable that the
Legislature, in adding the second sentence of subsection 3135(2)(a)(ii), meant to require that a
plaintiff in a closed-head injury case, in order to have the “serious impairment” issue assessed by
a jury, provide testimony of a physician as described in the statute. Indeed, in Kreiner v Fischer,
471 Mich 109, 132 n 15; 683 NW2d 611 (2004), the Court noted that MCL 500.3135(2)(a)(ii)
created “a special rule for closed head injuries . . . .” However, in Churchman v Rickerson, 240
Mich App 223, 232; 611 NW2d 333 (2000), this Court stated:
The language of § 3135 does not indicate . . . that the closed-head injury
exception provides the exclusive manner in which a plaintiff who has suffered a
closed-head injury may establish a factual dispute precluding summary
disposition. In the absence of an affidavit that satisfies the closed-head injury
exception, a plaintiff may establish a factual question under the broader language
set forth in subsection 3135(2)(a)(i) and (ii), which, as noted above, provide that
whether an injured person has suffered serious impairment of body function is a
question for the court unless the court finds that "[t]here is no factual dispute
concerning the nature and extent of the person's injuries," or, if the court finds that
there is such a factual dispute, that "dispute is not material to the determination as
1
On appeal, plaintiff has submitted an affidavit that arguably meets the requirements of MCL
500.3135(2)(a)(ii). However, because this document was not presented below, we do not
consider it on appeal. See Maiden v Rozwood, 461 Mich 109, 126 n 9, 597 NW2d 817 (1999);
Quinto v Cross & Peters Co, 451 Mich 358, 366 n 5; 547 NW2d 314 (1996). Plaintiff presented
other medical records to the trial court but did not present any testimony under oath that satisfied
MCL 500.3135(2)(a)(ii).
-2-
to whether the person has suffered a serious impairment of body function . . . ."
[Emphasis added.]
In light of Churchman, the holding of which is binding on this Court under MCR 7.215(J)(1),
and in light of the unclear meaning of the phrase “special rule” in Kreiner, we conclude that
plaintiff, in order to have the “serious impairment” issue submitted to a factfinder, was not
required to provide testimony of a physician as described in MCL 500.3135(2)(a)(ii).
We conclude that plaintiff established a factual question concerning his closed-head
injury under the other provisions of MCL 500.3135(2)(a)(i) and (ii). Memory is an important
body function, and neuropsychological testing may suffice as an objective manifestation of an
impairment of an important body function. See Shaw v Martin, 155 Mich App 89, 92-95; 399
NW2d 450 (1986). The neurological assessments performed by Dr. Van Horn and Dr. Axelrod
in this case both indicated significant deficiencies in plaintiff’s memory and cognitive abilities.
Dr. Van Horn opined that a battery of tests indicated that plaintiff suffered a closed-head injury
and had deficits in memory, attention, concentration, higher cognitive functions, and sensory and
motor functions. Dr. Axelrod believed that plaintiff was feigning at least some of his problems.
Thus, there was a question of fact concerning the nature and extent of plaintiff’s closed-head
injury.
If there is a question of fact concerning the nature and extent of the injuries, summary
disposition may be granted if the dispute is not material to the determination of whether the
plaintiff suffered a serious impairment of body function. Kreiner, supra, p 136 n 21. Viewed in
the light most favorable to plaintiff, the neuropsychological assessment by Dr. Van Horn
indicated that plaintiff’s memory and cognitive abilities were severely impaired. The inability to
remember interferes with a person’s ability to lead a normal life. Shaw, supra, p 94. In light of
the severity of the deficits claimed by plaintiff and substantiated by Dr. Van Horn, we cannot
conclude that the nature and extent of plaintiff’s closed-head injury is not material to the
determination of whether he suffered a serious impairment of body function. Accordingly, a
remand for trial is appropriate.
With respect to plaintiff’s neck and back injuries, these were objectively manifested by
an electromyography. In addition, Dr. Policherla observed cervical neck spasms in the
examination on March 19, 2004. Muscle spasms establish an objectively manifested injury. See
Harris v Lemicex, 152 Mich App 149, 153-154; 393 NW2d 559 (1986). Whether the neck and
back injuries affected plaintiff’s general ability to lead his normal life presents a closer question.
After our review of the record, we conclude that even if a question of fact existed regarding the
nature and extent of plaintiff’s neck and back injuries, plaintiff did not develop a record
sufficient to demonstrate that the effect on his life from the neck and back injuries was extensive
enough to meet the “serious impairment” threshold. Accordingly, the trial court did not err in
granting summary disposition to defendant with respect to the neck and back injuries.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Jane E. Markey
/s/ Patrick M. Meter
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
