CRYSTAL LAFLER V ESURANCE INS SERV INC
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STATE OF MICHIGAN
COURT OF APPEALS
CRYSTAL LAFLER,
UNPUBLISHED
February 26, 2009
Plaintiff-Appellee,
v
ESURANCE INSURANCE SERVICES, INC.,
No. 281328
Kalamazoo Circuit Court
LC No. 07-000161-NI
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting summary disposition for
defendant and dismissing plaintiff’s under-insured motorist action claiming non-economic
damages for an alleged serious impairment of an important body function. We reverse and
remand for further proceedings consistent with this opinion. This appeal has been decided
without oral argument pursuant to MCR 7.214(E).
We review de novo a trial court’s decision on a motion for summary disposition. Gillie v
Genesee Co Treasurer, 277 Mich App 333, 334; 745 NW2d 137 (2007). Under MCR
2.116(C)(10), summary disposition is proper only where there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law. Tyson Foods, Inc v Dep’t
of Treasury, 276 Mich App 678, 683; 741 NW2d 579 (2007). In conducting our review, we test
the factual sufficiency of the complaint, and consider all admissions, affidavits, pleadings, and
other documentary evidence in the light most favorable to the nonmoving party. Maiden v
Rozwood, 461 Mich 109, 118, 120; 597 NW2d 817 (1999).
A plaintiff seeking non-economic damages arising out of the “ownership, maintenance,
or use of a motor vehicle” is required by Michigan’s no-fault act to demonstrate a threshold
injury. MCL 500.3135(1). This threshold is met if the plaintiff has suffered “death, serious
impairment of body function, or permanent serious disfigurement.” Id.
Here, plaintiff alleged serious impairment of body function in the form of injuries
suffered to her neck and right shoulder as a result of a traffic accident. Due to her injuries,
plaintiff’s physicians disabled her from returning to work for nearly 14 months. Surgery was
required to repair a labral tear in plaintiff’s right shoulder. Plaintiff claimed that her injuries left
her temporarily unable to perform basic functions without assistance, kept her from participating
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in several recreational activities, significantly disrupted her ability to sleep through the night, and
caused her substantial neck and shoulder pain.
In Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), our Supreme Court set forth
a “multi step” “basic framework for separating out those plaintiffs who meet the [no-fault]
statutory threshold from those who do not.” Id. at 131. To pass the Kreiner test, a plaintiff must
have suffered 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).
When analyzing a plaintiff’s claim under this standard, we must compare the course of
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. Kreiner, supra at 132. This is accomplished by
engaging in an “objective analysis regarding whether any difference between the plaintiff’s preand post-accident lifestyle has actually affected plaintiff’s ‘general ability’ to conduct the course
of his life,” or to “lead his or her normal life.” Id. at 133. In making this determination, we rely
on the following “nonexhaustive list of objective factors” that should be weighed: “(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.” Id.
Applying these non-exhaustive factors to the instant case, we hold that the differences
between plaintiff’s pre- and post-accident lifestyle are significant enough to warrant a finding
that plaintiff’s impairments affected her general ability to lead her normal life. For over a year,
plaintiff was disabled from working her normal job. Plaintiff suffered severe muscle pain, had
significant trouble sleeping, was unable to perform basic hygiene functions, and could not even
share her bed with her husband for months. This was a significant disruption in the “course or
trajectory of the plaintiff’s normal life.” Id. at 131.
This case is distinguishable from Kreiner, where the plaintiff’s objectively manifested
impairment of an important body function was found to “not affect his overall or broad ability to
conduct the course of his normal life.” Id. at 136-137. The reasons the Kreiner Court cited for
that finding were that Kreiner’s “life after the accident was not significantly different than it was
before the accident. He continued working . . . and was still able to perform [almost] all the
work that he did before . . . His injuries did not cause him to miss one day of work.” Id. at 137.
Here, the effect plaintiff’s impairment had on her life is significantly greater than the
effect Kreiner’s impairment had on his life. Unlike Kreiner, plaintiff was not “still able to
perform [almost] all the work that [s]he did before.” Id. Plaintiff’s employment as a technician
for an automobile parts manufacturer required repetitive lifting above shoulder height.
Plaintiff’s treating physicians disabled her from returning to work for over a year, whereas in
Kreiner, the plaintiff’s “injuries did not cause him to miss one day of work.” Id. at 137.
Moreover, in Williams v Medukas, 266 Mich App 505, 508-509; 702 NW2d 667 (2005),
this Court found that limitations that might not rise to the level of a serious impairment of body
function for some people could rise to the level of serious impairment of a body function for a
person who regularly participated in activities that require a full range of motion. Id. at 508-509.
While it is unclear whether plaintiff in the case at bar will suffer any permanent limitations due
to the cramping she still suffers as a result of her injuries, it is clear that she was limited from
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performing her normal job for more than a year due to the physical nature of her employment.
Therefore, under Williams, we find that although the inability to lift above shoulder height may
not have been a serious impairment that would affect the general course of all lives, it was a
serious impairment that affected the course of plaintiff’s normal life.
Viewing the record in the light most favorable to plaintiff, we conclude that the trial court
erred in finding that plaintiff’s injuries did not affect her general ability to lead her normal life.
Consequently, the trial court erred by granting summary disposition for defendant and dismissing
the case.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Donald S. Owens
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