ADRIANNE WILLIAMS V DANIEL C RUSCH
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STATE OF MICHIGAN
COURT OF APPEALS
ADRIANNE WILLIAMS,
UNPUBLISHED
January 27, 2009
Plaintiff-Appellee,
v
No. 282233
Saginaw Circuit Court
LC No. 04-051228-NI
DANIEL C. RUSCH and DAVIDSON,
BREED & DOWD, P.C.,
Defendants-Appellants.
Before: Hoekstra, P.J., and Fitzgerald and Zahra, JJ.
PER CURIAM.
Following a jury trial on damages, plaintiff was awarded $144,951.02 in this legal
malpractice case. Defendants appeal as of right, challenging only the order granting plaintiff’s
counter motion for partial summary disposition on liability. The order was based on a
determination that, had a no-fault action been timely filed within the limitations period, plaintiff
would have prevailed because she suffered a serious impairment of body function as a matter of
law. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Under the no-fault insurance act, MCL 500.3101 et seq., a plaintiff may recover for noneconomic damages if he or she “has suffered death, serious impairment of body function, or
permanent serious disfigurement.” MCL 500.3135(1). A serious impairment of body function is
an “objectively manifested impairment of an important body function that affects the person’s
general ability to lead his or her normal life.” MCL 500.5135(7). The grant or denial of a
motion for summary disposition is reviewed de novo. Kreiner v Fischer, 471 Mich 109, 129;
683 NW2d 611 (2004).
In the lower court, defendants argued only that plaintiff’s impairment did not “affect[]
[her] general ability to lead . . . her normal life.” In their summary disposition brief, defendants
conceded that “[i]n the case at bar, plaintiff arguably demonstrates the objective manifestation of
an injury inasmuch as the medical records support a conclusion that she injured her back in the
accident.” At the summary disposition hearing, defendants noted that “the argument is now
limited to whether or not [plaintiff’s] trajectory to lead a normal life was altered as a result of the
auto accident.” Kreiner indicates that before a court entertains the question of whether an
impairment affects the general ability to lead a normal life, it must first determine that there is no
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material issue regarding the nature and extent of a plaintiff’s injury and that there is an
objectively manifested injury of an important body function. Id. at 131-132. Because
defendants conceded these points below, they cannot now raise them on appeal. See Hilgendorf
v St John Hosp & Medical Ctr Corp, 245 Mich App 670, 683; 630 NW2d 356 (2001).
In Kreiner, supra at 132-134, the Court stated:
In determining whether the course of the 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 the plaintiff’s overall life. Once this is identified, the court must
engage in an objective analysis regarding whether any difference between the
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.”
Defendants’ argument is based on a disingenuous assessment of plaintiff’s impairment.
Defendants assert that because plaintiff is able to work full-time, pursued a degree, and was
responsible for managing the home for a period after her husband moved, there is no evidence of
an affect on the course of her life. Defendants acknowledge plaintiff’s residual impairment and
continuing limitations, but maintain that the surgery was successful, and that the continuing
impairment and limitations are either self-imposed or collectively do not show that her life was
significantly affected.
The factors outlined in Kreiner, together with other limitations, establish that plaintiff’s
impairment was serious. Preliminarily, we note that while the duration of plaintiff’s impairment
was not short, even a short impairment can be serious. For the first three years after the accident,
plaintiff had ongoing medical treatment, including physical therapy, nerve blocks, and use of a
TENS unit. Despite these measures, which at best provided only minimal relief, she ultimately
could not work because her right leg was weak and numb from the hip to the foot and she had a
great deal of low back pain. Plaintiff said she pretty much just “laid around [and] couldn’t do
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much.” She was unable to do household chores that involved bending and lifting, and unable to
participate in recreational activities, including bowling, basketball, softball, volleyball, walking
distances, and shopping for more than an hour, a favorite past-time. Moreover, three years after
the accident when more conservative measures failed, plaintiff had a spinal fusion involving a
bone graft. Afterwards, she was initially unable to walk primarily due to severe pain from her
left hip to her toes. She eventually was able to walk with a walker, which she used for about six
weeks. She then used a cane for about six months. She had occupational therapy to help her
become self-sufficient again. She got a hospital bed to elevate her leg and back, and continued
to use the bed. Plaintiff reported that the surgery helped “somewhat” with the back pain, but the
numbness in her left leg persisted. She will be required to take Neurontin for the rest of her life,
and at the time of her deposition was still using Vicodin as needed for pain. She has been told
that her leg will not improve.
Plaintiff pursued a degree and eventually secured full-time employment after her surgery.
This job did not require her to be on her feet all day. However, two and one-half years after the
surgery, plaintiff reported:
•
her left leg is always numb
•
after work she’s tired, her leg is painful, and her balance is worse
•
she cannot bend more than a 45 degree angle from the waist, which results in,
for example, the inability to clean the bathtub; she also has difficulty taking a
shower and washing her hair because she cannot be on her feet that long
•
the impairment has had an effect on sexual activity
•
she has difficulty walking because of balance
•
she has difficulty riding in a car for more than two hours
The residual problems are not solely a result of pain, but a result of balance and range of motion
issues as well. Based on the totality of these circumstances, we conclude that plaintiff’s shortterm and long-term impairment affected her “general ability to conduct the course of . . . her
normal life.” Accordingly, the trial court did not err in determining that plaintiff suffered a
serious impairment of body function. Coextensively, there was no error in the determination that
this legal malpractice action should have proceeded to trial on the damages issue only.
Affirmed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Brian K. Zahra
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