JULIE GARCIA V ESTATE OF DALE ANDREW DOYLE
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STATE OF MICHIGAN
COURT OF APPEALS
JULIE GARCIA,
UNPUBLISHED
January 27, 2011
Plaintiff-Appellee,
v
JACK A. DOYLE, Personal Representative of the
Estate of DALE ANDREW DOYLE,
No. 281233
Saginaw Circuit Court
LC No. 06-061949-NI
Defendant-Appellant.
ON REMAND
Before: O’CONNELL, P.J., and WHITBECK and GLEICHER, JJ.
PER CURIAM.
Plaintiff commenced this automobile negligence action against the decedent defendant in
2006. Defendant moved for summary disposition of the case, which the circuit court denied.
This Court granted defendant’s delayed application for leave to appeal from the circuit court’s
summary disposition ruling, and reversed. Garcia v Doyle, unpublished opinion per curiam of
the Court of Appeals (Docket No. 281233), issued 11/25/08. In October 2010, the Michigan
Supreme Court vacated this Court’s opinion and remanded the case “to the Court of Appeals for
reconsideration in light of McCormick[ v Carrier, 487 Mich 180; ___ NW2d ___ (2010)].”
Garcia v Estate of Doyle, ___ Mich ___ (Docket No. 138019, entered 10/26/10). Having applied
the statutory interpretation of MCL 500.3135 set forth in McCormick, 487 Mich at 215-216, to
the circumstances of this case, we now affirm the circuit court’s denial of summary disposition to
defendant.
I
We reprint the summary of the underlying facts and procedure contained in our prior
decision, Garcia, slip op at 1-2:
During a September 20, 2005 automobile collision, plaintiff sustained an
incomplete, stable, nondisplaced fracture of her seventh cervical vertebra’s
endplate. An emergency room physician prescribed plaintiff pain medication and
applied a neck collar. Approximately a month later, a neurosurgeon examined
plaintiff and recommended continued immobilization of her neck. In November
2005, the neurosurgeon allowed plaintiff to remove the collar. On December 19,
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2005, the neurosurgeon determined that the vertebral fracture had healed and
released plaintiff to work without restrictions. Plaintiff received no further
treatment for her neck injury.
Before the accident, plaintiff worked as a car wash manager. During the
three months that plaintiff’s neck injury rendered her unable to work, the car wash
filled her management position. When plaintiff returned to work at the car wash,
she accepted a position “working with [the] brushes,” “[s]crubbing cars.”
Subsequently, she transferred to a cashier’s post. Plaintiff has not missed any
work since December 21, 2005.
At her deposition, plaintiff described continuing shoulder pain “if I
overexert myself in that area.” Plaintiff conceded that she continued to enjoy a
variety of recreational activities, including taking field trips with her daughter,
playing with her children in the yard, walking, and biking. Plaintiff testified that
she remained able to perform virtually all other activities, including yard work
and household chores. But due to her injury, plaintiff no longer used the
trampoline with her children or pursued her previous hobby, working on cars,
although she still continued to actively participate in a billiards league.
Defendant moved for summary disposition pursuant to MCR
2.116(C)(10), asserting that plaintiff could not establish that she had sustained a
serious impairment of body function, and that her injuries did not affect her ability
to lead her normal life. On September 24, 2007, the circuit court issued an
opinion and order denying defendant’s motion. The circuit court found that
plaintiff raised a genuine issue of material fact regarding whether she had suffered
a serious impairment of body function. The circuit court noted that plaintiff’s
cervical fracture resulted in the loss of her management position, thus
substantially reducing her income. The circuit court summarized in relevant part
as follows:
“[A]lthough the injury Plaintiff sustained as a result of this accident may
have been relatively short in duration, the evidence that Plaintiff lost her
management position as a result of this injury, suggests that it had much more
than a “de-minimis” effect on her general ability to lead her normal life.”
II
We again review de novo the circuit court’s summary disposition ruling. Walsh v Taylor,
263 Mich App 618, 621; 689 NW2d 506 (2004). “In reviewing a motion under MCR
2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Id.
III
We turn to the governing statute, MCL 500.3135, and the interpretation of this statute by
our Supreme Court in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), which
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controlled our prior decision. Our earlier decision in Garcia, slip op at 3-4, summarized as
follows:
The Legislature has limited tort liability for noneconomic loss to cases in
which an injured plaintiff has suffered “a serious impairment of body function, or
permanent serious disfigurement.” MCL 500.3135(1). A “serious impairment of
body function” means “an objectively manifested impairment of an important
body function that affects the person’s general ability to lead his … normal life.”
MCL 500.3135(7).
In Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), the Michigan
Supreme Court articulated a multistep process to guide a trial court’s
consideration whether a plaintiff has sustained a threshold injury. Id. at 131. The
trial court must first determine whether a factual dispute exists concerning the
nature and extent of the plaintiff’s injuries. If there is no dispute, or if a dispute
exists that is immaterial to whether a plaintiff has endured a serious impairment of
a body function, the court must determine whether “an ‘important body function’
of the plaintiff has been impaired.” Id. at 131-132. To merit further inquiry, a
court has to find both that “an important body function has in fact been impaired,”
and that the impairment qualifies as objectively manifested. Id. at 132. A
plaintiff who has sustained an objectively manifested impairment of an important
body function must also demonstrate that the impairment affects his or her general
ability to lead a normal life. Id. “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.”
Id. at 132-133. This analysis must be followed by an objective determination
“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.”
Id. at 133. The Kreiner Court summarized that “[a]lthough 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.” Id. at 131.
We previously applied the Kreiner analysis to the facts presented in Garcia, slip op at 34, and concluded:
Plaintiff argues that because “recreational activities played a major role in
her life” and she remains unable to pursue several of them, she has established a
threshold injury. Specifically, plaintiff identifies as the recreational activities
curtailed by her injury her inability to play billiards for six weeks, to use the
trampoline, and to work on cars. This Court has recognized that limitations on
recreational activities “in a person who regularly participates in sporting activities
that require a full range of motion” may constitute a serious impairment of body
function. Williams v Medukas, 266 Mich App 505, 509; 702 NW2d 667 (2005).
However, “[a] negative effect on a particular aspect of an injured person’s life is
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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, [471 Mich] at 137. Factors
considered to determine whether a plaintiff has established an impact on her
general ability to lead a normal life include the following: “(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. at 133. “Self-imposed restrictions, as
opposed to physician-imposed restrictions, based on real or perceived pain do not
establish this point.” Id. at 133 n 17. The Kreiner Court stressed that “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.’” Id. at 134. Although an
impairment of short duration may qualify as a serious impairment of body
function, “the more extensive the nature and degree of the impairment, the lesser
the need for a lengthy or permanent duration of impairment in order to qualify an
impairment as a serious impairment of body function.” Benefiel v Auto-Owners
Ins Co, 277 Mich App 412, 424; 745 NW2d 174 (2007), [vacated 481 Mich 885
(2008).
After applying the Kreiner factors, we conclude that plaintiff has failed to
demonstrate a genuine issue of fact that the cervical fracture has altered her
general ability to lead her normal life. Plaintiff’s fracture healed completely
within six weeks after her injury. The sole treatment provided for plaintiff’s
injury consisted of pain medication and a cervical collar she had to wear for less
than three months. Plaintiff has provided no evidence that a physician restricted
her activities in any manner after December 19, 2005. Her current inability to
work on cars is an entirely self-imposed limitation, unrelated to any actual
lingering physical incapacity. Furthermore, plaintiff’s inability to play billiards
for six weeks, or to use the trampoline, constitute de minimus impacts on her
normal life. The nature and extent of plaintiff’s residual impairments are notably
less serious than those of the plaintiffs in Kreiner, who both failed to meet the
threshold requirements for recovery.
Plaintiff contends that her continued need for prescription pain medication
and muscle relaxants evidences physician-imposed restrictions tending to
establish residual impairments. However, plaintiff admitted that she rarely needs
the pain medication and continues to participate in the vast majority of her
preaccident activities, despite that some pain may accompany extensive effort. In
light of the record evidence, we conclude that plaintiff has failed to establish that
the cervical fracture has affected her general ability to conduct her normal life,
and that the circuit court should have granted defendant’s motion for summary
disposition.
IV
On July 31, 2010, the Michigan Supreme Court decided McCormick, 487 Mich at 184,
which overruled the interpretation of MCL 500.3135 in Kreiner, 471 Mich 109. McCormick
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announced a new standard for evaluating whether the injuries sustained by a third-party no-fault
claimant meet the statutory threshold of serious impairment. McCormick instructs that “the
threshold question whether the person has suffered a serious impairment of body function should
be determined by the court as a matter of law as long as there is no factual dispute regarding ‘the
nature and extent of the person’s injuries’ that is material to determining whether the threshold
standards are met.” 487 Mich at 193, quoting MCL 500.3135(2)(a)(i). A three-pronged analysis
dictates whether a plaintiff has established a serious impairment of body function. Id. at 215. A
plaintiff must show
(1) an objectively manifested impairment (observable or perceivable from actual
symptoms or conditions) (2) of an important body function (a body function of
value, significance, or consequence to the injured person) that (3) affects the
person’s general ability to lead his or her normal life (influences some of the
plaintiff’s capacity to live in his or her normal manner of living). [Id.]
The Supreme Court elaborated in McCormick, 487 Mich at 202, that when evaluating
whether a plaintiff’s injuries have affected the person’s general ability to lead his or her normal
life, “courts should consider not only whether the impairment has led the person to completely
cease a pre-incident activity or lifestyle element, but also whether, although a person is able to
lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless
affected.” The plaintiff need only produce evidence
that some of the person’s ability to live in his or her normal manner of living has
been affected, not that some of the person’s normal manner of living has itself
been affected. Thus, while the extent to which a person’s general ability to live
his or her normal life is affected by an impairment is undoubtedly related to what
the person’s normal manner of living is, there is no quantitative minimum as to
the percentage of a person’s normal manner of living that must be affected. [Id.
(emphasis in original).]
“The serious impairment analysis is inherently fact- and circumstance-specific and must be
conducted on a case-by-case basis.” Id. at 215.
V
Applying the principles elucidated in McCormick, as the Supreme Court has instructed us
to do, leads us to conclude that plaintiff has made a sufficient showing of a “serious impairment
of body function” to avoid summary disposition. MCL 500.3135(1), (7). We initially observe
that because the parties do not dispute the facts surrounding the nature and extent of plaintiff’s
injuries, we may decide as a matter of law whether plaintiff’s injuries meet the serious
impairment threshold. MCL 500.3135(2)(a)(i). The September 2005 collision caused plaintiff to
suffer an objectively manifested impairment, specifically, a fracture of the C7 vertebra visible on
a CT scan. A fracture in this area adversely impacts an important body function. Netter v
Bowman, 272 Mich App 289, 306; 725 NW2d 353 (2006) (“[M]ovements of one’s back and
neck are important body functions.”), overruled in part on other grounds in McCormick, 487
Mich at 197 n 11. As the McCormick Court noted, this analysis is, by necessity, based on the
facts and circumstances of the case. McCormick, 487 Mich at 215.
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The question then becomes whether the facts and circumstances show that plaintiff’s
impairment affected her general ability to lead her normal life. McCormick, 487 Mich at 215.
Before the accident, plaintiff worked as a car wash manager, and enjoyed hobbies like working
on cars and playing billiards. After plaintiff endured the C7 vertebra fracture on September 20,
2005, she wore a cervical collar for two months and could not work for three months. During
this recovery period, the car wash filled plaintiff’s management position. Plaintiff returned to
work without restrictions at the car wash in December 2005, but did not resume her management
position, and therefore made less money. Within several months, plaintiff took a different job as
the manager of a bar, where she earned approximately $10,000 less per year than she had in her
car wash management position. Plaintiff testified that following her recovery she could perform
household chores as she had before the accident, and had the ability to play with her children,
although she did not jump on the trampoline with the children as she had done prior to the
accident. Plaintiff resumed playing billiards six weeks after the accident, but never resumed
working on cars because that activity caused her muscles to become inflamed and painful.
In summary, plaintiff permanently lost her car wash management position because she
was unable to work for three months after the accident, and she has experienced a significant
income reduction. Furthermore, the accident prevented plaintiff from ever resuming her hobby
of working on cars, which currently places substantial strain on her muscles. We conclude that,
viewed in the light most favorable to plaintiff, these facts demonstrate that her objectively
manifested impairment of an important body function affected her general ability to lead her
normal life “(influence[d] some of . . . [her] capacity to live in . . . her normal manner of living).”
McCormick, 487 Mich at 215. Consequently, the circuit court properly denied defendant’s
motion for summary disposition.
Affirmed.
/s/ Peter D. O'Connell
/s/ William C. Whitbeck
/s/ Elizabeth L. Gleicher
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