*1 v RICKERSON CHURCHMAN 14, September 1999, Decided at Detroit. Docket No. Submitted 2000, March at 9:00 A.M. minor, by friend, Churchman, her next William Church- M. DeAnn Wayne man, against brought Erik A. an in action Circuit Court Rickerson, seeking damages pursuant of §to noneconomic act, 500.3135; 24.13135, a closed-head no-fault MCL for court, injury J. Michael an automobile accident. The defendant, ruling Talbot, J., granted summary disposition for the testimony plaintiff, presented by physician that she that who post stress had sustained “a traumatic disorder with closed-head injury,” damages injury cannot because and traumatic brain recover testimony present indicating neuro- failed to medical a serious she injury, logical required 3135(2)(a)(ii). The court subsection plaintiff’s for The denied the motion reconsideration. also appealed. Appeals The Court of held-. act, may 1. Under the noneconomic be recovered no-fault losses only injured person in an or on behalf of a automobile accident death, body injured person impairment if of suffers serious permanent injured function, disfigurement. or serious Whether the impairment body perma- person has of or suffered serious function disfigurement nent serious is for the court to decide as a matter dispute nature and law if there exists no factual to the injuries, or, dispute, that of the where there is such a factual extent injured dispute is not material to the determination whether the body per- person impairment has serious function or suffered a respect injuries, disfigurement. manent serious With closed-head exception provides 3135(2)(a)(ii) an in that it states subsection jury regarding is created whether of fact for the impairment injured person or has function suffered serious allopathic permanent disfigurement serious if a or osteo- licensed physician diagnoses pathic regularly treats closed-head or neurologi- injuries there testifies under oath that be injury exception The of subsection cal closed-head apply 3135(2)(a)(ii), 3135(2)(a)(ii) does to this case. Subsection not indicating neurological requiring testimony injury requires diagnosis more than the 240 testimony
presented plaintiff’s indicating here. submission injury brain be traumatic insufficient establish there merely injury” because “traumatic brain brain, mild, moderate, means to the which could be *2 severe. an 2. In the absence of affidavit that the satisfies
injury exception, plaintiff may question a a establish factual under language 3135(2Xa)(i) (ii). of the broader subsections ^d A court impair- a has a cannot determine whether suffered serious body judgment ment of and in of a function enter favor defendant making findings as a matter of law without first the factual required 3135(2)Ca)(i) (ii). under and subsections This matter must findings respect be remanded for factual the trial court with question regarding the has a whether established factual impairment body serious of function. denying trial 3. The court did not abuse its in discretion plaintiff, support motion, motion for reconsideration. The in of the testimony presented offered could that have been when issue injury exception 3135(2)(a)(ii) of the closed-head of subsection argued. was first part in Affirmed and remanded. J., concurring part dissenting part, and stated Cavanagh, findings appropriate, for remand further is but “traumatic” injury serious, in the context of traumatic brain means that “neuro- logical” system, brain, refers to the nervous which includes the and plaintiff’s testimony indicating that the submitted traumatic brain iqjury requirement 3135(2)(a)(ii) satisfied the of subsection testi- of mony indicating serious — — — Impairment Body
1. Insurance No-Fault Serious of Function Injuries — Questions Closed-Head Fact. of person impairment body Whether a has sustained a serious of func- respect tion with to a closed-head in an suffered automobile so as accident to be able to for a recover noneconomic loss is fac- jury testimony by physician tual for the if there is sworn regularly diagnoses injuries indicating or treats closed-head neurological injury; testimony merely that there be a serious indicating diagnosis of closed-head brain or traumatic question (MCL is insufficient create a factual 500.3135[2][a][ii]; 24.13135[2][a][ü]). — — — 2. Insurance Impairment Body No-Fault Serious Function Per- Disfigurements — manent Serious Questions of Law. person A court can decide as a matter of law that a has or has not impairment body permanent function seri- Rickerson Court disfigurement if it is no-fault act finds there no under the ous or, injury, concerning dispute if and extent of factual the nature dispute concerning and extent of the the nature there a factual dispute whether is not material to the determination that the permanent disfig- impairment function or sustained; judgment be entered without no urement has been [a]). [a]; 24.13135(2] findings (MCL 500.3135(2] MSA such (by Mychalowych G. Mark Haliw, and Siciliano Chiesa), plaintiff. for (by Gregory E. & Associates C. Rabaut
James Hoelscher), for the defendant. P.J., JJ.
Before: Sawyer Cavanagh, Collins, Churchman, Marie P.J. Plaintiff DeAnn Collins, father, William Church- minor, her next friend right appeals as from the trial court’s order man, granting denying sum- of its order reconsideration *3 mary disposition to defendant Erik Arthur Rickerson. part proceedings. affirm and remand further in for We brother, and her David Lee DeAnn Churchman injured pedes in minor, a a Churchman, also were Eleven-year-old DeAnn suf trian-automobile accident. injury. DeAnn, a David and with fered complaint against father next friend filed their (defendant), the driver of the automobile Rickerson Broughton, Frank accident, involved in the John discovery, defendant the owner of that vehicle.1 After summary disposition under MCR moved for plaintiffs 2.116(C)(10) on had not satis the basis recovery requirements for fied threshold damages Michi- set forth 3135 of noneconomic subsequently complaint that did not filed an amended Plaintiffs any against Broughton. claims include
Opinion of the Court gan’s seq.; act, no-fault MCL 500.3101 et MSA seq., regard 24.13101et with to either child’s claims. injured Michigan’s plaintiff act, Under no-fault in an automobile accident recover noneconomic losses only impairment death, if he has suffered serious body permanent disfigurement. function, or serious 500.3135(1); 24.13135(1). MCL MSA The version applies provides § 3135 that in this case2 plaintiff impairment whether the has suffered serious body permanent disfigurement function or serious for is the court as a to decide matter of law if there dispute regard exists no factual nature injuries, plaintiff’s and extent of the or, where there is dispute, dispute such a factual is not material to the determination whether the has suffered impairment permanent serious function or disfigurement. 500.3135(2)(a)(i) (ii); MCL 24.13135(2)(a)(i) (ii). Legislature MSA cre specific provision, ated a however, for situations injury. where the sustained a closed-head 500.3135(2)(a)(ii); pro 24.13135(2)(a)(ii) MCL pertinent part, vides, as follows: However, for a closed-head of fact for jury allopathic osteopathic if a created licensed physician diagnoses regularly or treats closed-head injuries testifies under oath that there abe argued With to DeAnn’s claims, defendant that, below there was while evidence that she suf- injury, plaintiffs’ expert fered a closed-head own *4 2 Legislature 3135, 222, 28, § amended 1995 PA effective March injuries January 1996. the Because in this case occurred 1997, applies. the amended version the of Court neuropsychologist that and found evaluated DeAnn any, injury minimal, if itself with her had resolved argued lasting that further effects. Defendant residual Lemer, D.O., examined Laran affidavit of attorneys, request that her stated DeAnn at the post disor- traumatic stress DeAnn sustained “had brain and traumatic der closed-head injury,” had that DeAnn did not state but neurological injury required § disposition summary granted first
The trial court Regarding to David’s claims.3 defendant with § claims, the court noted DeAnn’s recently to include the closed-head amended published exception law was no case that there interpreting on the concluded, The court that section. language plain Ler statute, that Dr. basis of the attesting ner’s to DeAnn’s affidavit although § it because did not meet the 3135 threshold provided diagnosis, made no mention of the seri it granted sum The court then
ousness of maiy disposition claims, of DeAnn’s dismissed subsequently plain prejudice, denied case with tiffs’ motion for reconsideration. “plaintiff”)argues appeal, (hereafter DeAnn
On improperly her claims the trial dismissed court applied incorrectly interpreted because it grant 3135(2)(a)(ii). We review a trial court’s Spiek Dep’t summary disposition novo. de denial Transportation, 337; 572 NW2d Statutory (1998). is matter of law construction Rd Co Bd Co well. Oakland we review de novo as regarding David’s were dismissal of claims No issues court’s appeal. raised on *5 App
228
240
223
Mich
Opinion of the Court
&
Michigan Property
Casualty Guaranty
Comm’rs v
Ass’n,
590, 610;
456 Mich
575 NW2d
(1998).
751
statutory
primary goal
interpretation is to
give
ascertain and
effect to the
Legisla-
intent of the
ture.
v
Club
Ass’n,
27;
Turner Auto
Ins
Mich 22,
448
Petroleum,
The no-fault generally act is to be liber- construed ally it because is remedial nature. Putkamer Corp Ins America, Transamerica Mich Court of the (1997). con- this rule of However, NW2d683 631; 563 apply payment of bene- to the is intended to struction injured parties, were to benefit intended fits to adoption legislation. Id. Where no-fault from the broadly appropriate, should be construed the act Corp, coverage. Ins McMullenv Motors effectuate (1993). One of the 102, 107; NW2d 38 adopting legislation specific purposes of no-fault partially of first- abolish remedies in favor tort *6 tort-remedy by party creating benefits the insurance 24.13135.Ste- 500.3135; at found MCL threshold phens NW2d Dixon, 541; 536 755 449 (1995). § 3135 is not Thus, a liberal construction of warranted. argues plain language first that under the
Plaintiff plaintiff diagnosed with statute, a who is a of the injury automatically § the meets closed-head Leg- disagree. case, If that were the We the threshold. testimony required not have a islature would plaintiff neurological injury, had sustained required testimony simply that a would have but injury. Indeed, had sustained a closed-head a injury “may damage ranges cause closed-head profound.” eds, al., 3 Olendorf et from mild to (Farmington Encyclopedia Hills, Medicine Gale give 1999), p Thus, Research, 1349. Mich: Gale injury,” phrase we to the “serious effect injury provision that the closed-head must conclude plain- requires diagnosis a that a more than a closed-head tiff has sustained diagnosis argues even a further that if Plaintiff satisfy sufficient to is not testimony requirements, Dr. Lemer’s threshold injury” satis- had sustained “a traumatic brain DeAnn Court substantively, fied was, the statute because it testi- mony may neurologi- that she have suffered serious injury. Again, disagree. Although cal we the statute in “serious,” does not define Law Black’s Dic- tionary when “serious,” defines used describe an “dangerous; potentially accident, as illness resulting consequences in death or other severe . . . .” Dictionary p (7th ed), Accordingly, Black’s Law plain language requires of the statute some indica- by providing testimony tion the doctor that the Here, severe. neither diagnosis injury” of “traumatic brain nor literal interpretation necessarily words those indicates neurological injury that the suffered DeAnn be “serious.” injury may
Traumatic brain be classified mild, moderate, or severe. D. Kushner, M.D., See “Mild Injury: Understanding Traumatic Brain Toward Mani- festations and Treatment,” 158 Archives of Internal 1998). (Aug, diagnosis Medicine 1617 Indeed, even injury spec- of mild traumatic brain include “a range trum of manifestations that can from transient *7 symptoms ongoing disabling problems.” mild to Id. presented only diagnosis Thus, when with a of “trau- injury,” position matic brain a trial court is not in a to injury know whether that was serious. Furthermore, descriptive phrase, even if considered as a “traumatic injury” necessarily imply brain does not that a neuro- logical be serious. Medical Dorland’s Dic- tionary “pertaining defines “traumatic” as to, occur- ring causing as result of, or trauma.” Dorland’s Dictionary (28th ed). dictionary Medical The same injury, phys- defines “trauma” as “a wound or whether the Court literally, Interpreted psychic.” then, the Id.4 ical or simply injury” phrase describes brain “traumatic injury, trauma, or resulted the brain. to presented to the the affidavit from it is clear
While injury, neurological suffered a DeAnn court that trial requires contain testi- must § the affidavit mony a serious have interpreting injury. Again, statutes when every give possible, to effect far as must, as we phrase, supra Valley at Foods, word. Sun clause, and nothing affidavit, Lemer’s in Dr. is there 237. Because degree substantively, literally to indicate either satisfy injury, to was not sufficient find that it we requirement § further We note of 3135. the threshold legislative supported that this conclusion history § that the amended which indicates 3135, to raise or was intended statute version of that strengthen House See Legisla- no-fault threshold. Analysis, 1995. 18, 4341, HB December tive argues affidavit did even if the next that Plaintiff provision satisfy the closed-head not summary disposition precluded because she including presented from an affidavit evidence, neuropsychologist from the hos- records and medical pital accident, suffi- after the she was treated where of fact cient to raise impairment whether she sustained argument Although in the made this function. response motion for sum- defendant’s trial court any mary disposition, make did not the trial court Dictionary as Similarly, defines “traumatic” Medical Stedman’s trauma,” defines “trauma” “[Relating “[a]n to or caused Dictionary ed), p (26th physical Medical or mental.” Stedman’s *8 App
Opinion of the Court findings with regard plaintiff to whether sustained a impairment body of Rather, function. simply court found that because the affidavit was satisfy insufficient exception closed-head 3135(2)(a)(ii), § defendant was entitled to summary disposition with plaintiffs claims.
The language of 3135
does not indicate, however,
closed-head
exception provides
exclusive manner
plaintiff
which a
who has suf-
fered a
closed-head
may establish a factual dis-
pute precluding summary disposition. In the absence
of an affidavit
that satisfies the
exception,
may establish a
question
factual
under the broader
language set forth in subsections
3135(2)(a)(i)
(ii), which,
above, provide
noted
injured
whether an
person has suffered serious
impairment
body
function
is a
for the
court unless the court finds that
is no factual
“[t]here
dispute concerning the nature and extent of the per-
son’s injuries,” or, if the court finds that there is such
a factual dispute,
“dispute
is not material
to the
determination as to
person
whether the
has suffered
impairment
body
function . . . .” This
Court has recently held that a trial court cannot
determine
whether a
has suffered a serious
impairment
function and enter judgment
favor of a defendant as a matter of law without first
making the factual
findings required under subsec-
tions
3135(2)(a)(i)
(ii). May v Sommerfield, 239
197, 202;
Plaintiffs
*9
We disa-
the motion for reconsideration.
denying
in
court’s decision con-
Court reviews
trial
This
gree.
an
for
abuse
motion for reconsideration
curring
Co,
Ins
Cason v Auto Owners
181 Mich
discretion.
An abuse of dis-
(1989).
Generally, restricting without the discretion of rehearing which court, or reconsideration a motion for by court, merely presents ruled on the same issues implication, expressly will not be reasonable either palpable moving party granted. must demonstrate parties have been which court and the misled error disposition of the motion must that a different and show result from correction of the error. reconsideration, plaintiff argued
In motion for origi- Dr. Lemer’s that the trial court misunderstood Plaintiff included nal and was thus misled. affidavit Dr. Lemer, a second affidavit from with the motion with closed- posttraumatic stress disorder stating injury are, by then- injury and traumatic brain head injuries, and that very nature, neurological DeAnn had sustained of discretion in the
However, we can find no abuse
that rests on
denial of a motion for reconsideration
testimony
presented
have been
the first
could
Wayne
Co
Charbeneau
argued.
issue was
time the
Hosp,
General
App 730, 733;
Mich
Opinion by Cavanagh, J. part proceed- Affirmed in and remanded for further ings opinion. consistent this We instruct the trial findings fifty- court to file its with this Court within days opinion. six of the date of this We retain jurisdiction.
Sawyer, J., concurred.
(concurring
part
dissenting
J.
Cavanagh,
part').
May
Pursuant to
v Sommerfield, 239 Mich
(1999),
197, 202;