JAKE B VLIETSTRA V AUTO-OWNERS INS GROUP
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STATE OF MICHIGAN
COURT OF APPEALS
JAKE B. VLIETSTRA,
UNPUBLISHED
November 19, 2009
Plaintiff-Appellant,
v
No. 287001
Kent Circuit Court
LC No. 07-006360-NI
AUTO-OWNERS INSURANCE GROUP,
Defendant-Appellee,
and
HILARY J. ORMOND,
Defendant.
Before: Talbot, P.J., and O’Connell and Davis, JJ.
TALBOT, PJ (dissenting).
I respectfully disagree with the decision to reverse the trial court’s grant of summary
disposition in favor of Auto-Owners Insurance Group, because I do not find that plaintiff has
demonstrated a serious impairment of bodily function that has impacted his general ability to
lead his normal life.
While I do not dispute the injuries sustained by plaintiff, his treatment for those injuries
and recovery were of a relatively short duration. Plaintiff retained the ability to perform his own
self-care and returned to work and school with only “pain based” restrictions. Plaintiff
acknowledged that the accident and resultant injuries did not impact his educational or career
choices. Plaintiff was able to resume jogging, but was recommended to restrict the duration and
location of this activity to an elliptical machine. Plaintiff only contends that he has self-restricted
his participation in certain recreational activities due to the experience of back pain when
engaged in these activities and limits the amount of books he carries while at school.
As part of the determination of whether an “important body function” has been impaired,
a trial court must objectively ascertain whether any change in lifestyle “has actually affected the
plaintiff’s ‘general ability’ to conduct the course of his life.” Kreiner v Fischer, 471 Mich 109,
132-133; 683 NW2d 611 (2004). “Merely ‘any effect’ on the plaintiff’s life is insufficient
because de minimus effect would not, as objectively viewed, affect the plaintiff’s ‘general
ability’ to lead his life.” Id. at 133. In other words:
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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. at 131.]
Although this Court has recognized that “sporting activities . . . may rise to the level of serious
impairment of a body function” for an individual that regularly engages in such activities,
Williams v Medukas, 266 Mich App 505, 509; 702 NW2d 667 (2005), “a negative effect on a
particular aspect of an injured person’s life is not sufficient in itself to meet the tort threshold, as
long as the injured person is still generally able to lead his normal life.” Kreiner, supra at 137.
Further, “[s]elf-imposed restrictions, as opposed to physician-imposed restrictions, based on real
or perceived pain do not establish this point.” Id. at 133 n 17.
Because the legal precedent established by our Supreme Court in Kreiner binds us, I
would concur with the trial court’s grant of summary disposition in favor of defendant. See
Kelly-Stehney & Assoc v MacDonald’s Industrial Products, Inc, 265 Mich App 105, 107; 693
NW2d 394 (2005). Although I do not doubt that certain aspects of plaintiff’s life may have been
impacted by his impairment, I do not believe that the course or trajectory of his normal life has
been affected. Consequently, and consistent with Kreiner, supra at 131, I find that plaintiff’s
injury does not meet the threshold necessary to establish a “serious impairment of body
function.”
/s/ Michael J. Talbot
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