CHIQUITA TAYLOR V MARCUS FRANCIS TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
CHIQUITA TAYLOR,
UNPUBLISHED
January 13, 2011
Plaintiff-Appellant,
v
MARCUS FRANCIS TAYLOR and HIGHLAND
CHRYSLER PLYMOUTH COMPANY,
No. 295594
Kent Circuit Court
LC No. 08-009335-NI
Defendants-Appellees.
Before: MARKEY, P.J., and ZAHRA and DONOFRIO, JJ.
PER CURIAM.
In this action to recover noneconomic damages under the no-fault act, plaintiff appeals as
of right from a circuit court order granting summary disposition in favor of defendants pursuant
to MCR 2.116(C)(10). We reverse and remand.
Plaintiff claims she was injured on January 10, 2007, when a vehicle operated by
defendant Marcus Taylor and owned by defendant Highland Chrysler Plymouth Company hit the
driver’s side of plaintiff’s vehicle as she sat in her parked (though idling) car in her high school
parking lot. Plaintiff had previously been in an automobile accident in 2004 in which she also
allegedly injured her back. Plaintiff’s pediatric orthopedic physician, Dr. Reinhart, had treated
the alleged 2004 injury, and examined her on November 27, 2006. He reported that plaintiff
“still has some pain with hypertension, especially with the left leg elevated, and assessed plaintiff
with “lower back pain.” Dr. Reinhart sent plaintiff to eight weeks of “physical therapy for
truncal stability for the back pain . . . ”
Plaintiff was not hospitalized following the instant accident, and the police report did not
indicate that plaintiff was injured or complained of pain at the scene. On January 15, 2007,
plaintiff attended a physical therapy session and there is no evidence that she mentioned any
aggravation of her condition. However, on January 22, 2007, plaintiff saw Dr. Reinhardt who
diagnosed plaintiff with “low back pain” and a “[n]ew onset of back pain secondary to motor
vehicle accident.” Dr. Reinhardt reported that “she does have what feels like spasmodic changes
in the paraspinal muscles on her left side.” In addition to continued physical therapy and “heat
packs” plaintiff was prescribed ibuprofen. Dr. Reinhardt sent plaintiff for an MRI examination
which revealed a herniated disk. In a letter to plaintiff’s automobile insurance company, Dr.
Reinhardt wrote that, “I do feel that the accident in January 2007 exacerbated her pain, because it
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seemed as if her back pain was getting better with therapy, and then she had a new injury which
incited this new pain which caused her to require additional treatment by another physician.”
Plaintiff also saw Kevin Fitzgerald, M.D., of Michigan Pain Consultants, who opined that “in
January [2007 plaintiff’s] pain got progressively worse.” Last, Lisa B. Green, M.D., examined
plaintiff on February 8, 2008, and indicated that plaintiff “may . . . have had a disk herniation at
[the time of the accident]. There is no way of proving that there was a disk herniation at that
time, but I think this is likely the case given this significant worsening of pain.”
Plaintiff filed a complaint against defendants, alleging that Marcus Taylor’s negligence
caused her “[s]evere low back pain,” and “L5-S1 disk bulge; requiring epidural injections and
physical therapy.” Defendants moved for summary disposition pursuant to MCR 2.116(C)(10)
on the basis that plaintiff’s injuries did not meet the statutory threshold for recovery of
noneconomic damages because her impairment did not affect her general ability to lead her
normal life under then controlling precedent Kreiner v Fischer, 471 Mich 109, 130-131; 683
NW2d 611 (2004), reh den 471 Mich 1201 (2004). Notably, defendants’ conceded for purposes
of their motion for summary disposition that plaintiff’s injuries were objectively manifested and
affected an important body function. The trial court granted the defendants’ motion for summary
disposition, finding that plaintiff’s new impairment did not affect her general ability to lead her
normal life.
On appeal, a court’s decision on a motion for summary disposition is reviewed de novo.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A motion under MCR
2.116(C)(10) tests the factual support for a claim. When reviewing a motion under
MCR2.116(C)(10), a court must examine the documentary evidence presented and, draw all
reasonable inferences in favor of the nonmoving party, and determine whether a genuine issue of
material fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The nonmoving party has the burden of establishing through affidavits, depositions, admissions,
or other documentary evidence that a genuine issue of disputed fact exists. Id. A question of
fact exists when reasonable minds can differ on the conclusions to be drawn from the evidence.
Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 398-399; 491
NW2d 208 (1992). Summary disposition is properly granted when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Maiden, 461 Mich
at 120.
Here, given defendants’ above noted concessions for purposes of summary disposition,
the only relevant question on appeal in this case is whether the trial court properly determined
whether plaintiff’s alleged back injuries can establish that she suffered a serious impairment of
body function. We also recognize that at the time the trial court rendered its decision, the
controlling standard used to make this determination was Kreiner, 471 Mich at 130-131, and that
Kreiner has since been reversed by the Supreme Court’s decision in McCormick v Carrier, 487
Mich 180; ___ NW2d ___ (2010). Because McCormick established a new standard for
evaluating third-party claims under MCL 500.3135(1) and (7), we are compelled to reverse the
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trial court’s decision in this regard and remand for further proceedings consistent with
McCormick’s directives. We do not retain jurisdiction. No taxable costs pursuant to MCR
7.219.
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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