Mousa Hawamada v. Khalid Kineish
330374
| Mich. Ct. App. | Apr 25, 2017Background
- On May 9, 2011, Hawamda was struck when Kineish entered the wrong turnaround and failed to yield; Hawamda and his wife sued Kineish and Progressive for negligence, underinsured motorist (UIM) benefits, and loss of consortium.
- Kineish moved for summary disposition under MCR 2.116(C)(10), arguing Hawamda lacked the MCL 500.3135 “serious impairment of body function” because objective testing was negative.
- Trial court granted Kineish’s motion, relying on immediate post‑accident brain and neck MRIs and treating later complaints as subjective. Plaintiffs’ reconsideration was denied.
- Progressive then moved for summary disposition (MCR 2.116(C)(7) and (C)(10)), arguing the Kineish ruling foreclosed the UIM claim; the trial court granted Progressive’s motion.
- Plaintiffs appealed; the Court of Appeals reversed both summary dispositions and remanded for further proceedings, finding genuine factual disputes on objective manifestation, causation, and effect on Hawamda’s general ability to lead his normal life.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary disposition was proper because Hawamda did not suffer an "objectively manifested" impairment under MCL 500.3135 | Hawamda: medical records plus 2013–2014 cervical and lumbar MRIs showing disc bulges/herniations are objective evidence of impairment | Kineish/Progressive: immediate post‑accident imaging was normal; later MRIs are too remote to establish objective injury or causation | Court: Reversed — later MRIs and medical records create a factual dispute on objective manifestation; summary disposition was improper |
| Whether the spine/neck impairments qualify as an "important body function" | Hawamda: spine and neck are clearly important body functions affecting mobility and activities | Defendants: did not contest importance but emphasized lack of objective proof tied to accident | Court: Spine/neck are important body functions; that element is satisfied for factual inquiry |
| Whether the impairment affected Hawamda’s "general ability to lead his or her normal life" | Hawamda: deposition and neuropsych exam show reduced activity (no sports, more sedentary life), difficulty lifting, intermittent need for help — supports effect on general ability | Defendants: argue evidence is insufficient/subjective and causation unproven | Court: Evidence of pre‑/post‑accident activity creates a question of fact on effect; element not resolved as a matter of law |
| Whether Progressive’s UIM claim was properly dismissed because of the trial court’s ruling for Kineish | Plaintiffs: (not briefed on appeal) implied UIM claim depends on underlying tort recovery | Progressive: trial court’s Kineish ruling eliminated basis for UIM coverage | Court: Because Kineish dismissal is reversed, Progressive’s dismissal derived from that error and must be reconsidered on remand |
Key Cases Cited
- McCormick v. Carrier, 487 Mich. 180 (interpreting the three‑prong MCL 500.3135(7) test for "serious impairment of body function")
- Maiden v. Rozwood, 461 Mich. 109 (standard for evaluating MCR 2.116(C)(10) motions and consideration of evidence in summary disposition)
- Adair v. State, 470 Mich. 105 (de novo review standard for summary disposition)
- Dextrom v. Wexford Co., 287 Mich. App. 406 (standards governing MCR 2.116(C)(7) dismissals)
- Nichols v. Dobler, 253 Mich. App. 530 (causation is typically a question for the fact‑finder)