GENA KENCAID v. STATE FARM MUTUAL AUTOMOBILE COMPANY, IAN MATTHEW NOCK and CITY OF HUNTINGTON WOODS
No. 367723
STATE OF MICHIGAN COURT OF APPEALS
March 11, 2025
UNPUBLISHED; Oakland Circuit Court LC No. 2022-195395-NI
Before: MURRAY, P.J., and K. F. KELLY and D. H. SAWYER*, JJ.
PER CURIAM.
In this case for excess economic and noneconomic damages, plaintiff appeals as of right from the order granting summary disposition to defendants Ian Nock and the City of Huntington Woods (the City) under
I. BACKGROUND
This case arises from a motor vehicle accident. In November 2020, Nock, an employee in the City‘s Department of Public Works, was driving his leaf-collection route using a City-owned
Plaintiff filed a complaint against defendants, alleging that Nock was liable for automobile negligence because he operated the City-owned vehicle in violation of the Michigan Vehicle Code,
Defendants subsequently filed two motions for summary disposition. In their first motion, defendants moved for partial summary disposition regarding plaintiff‘s claim for medical expenses. In their second motion, defendants moved for dismissal of plaintiff‘s claims based on governmental immunity, arguing that because plaintiff‘s complaint made “no reference to [governmental] immunity or any exception she claims would allow her suit to proceed,” and plaintiff did not previously amend her complaint despite the fact that defendants’ affirmative defenses and interrogatories alerted plaintiff to the issues within her complaint, her claims should be dismissed. Even if plaintiff pleaded a motor vehicle exception to governmental immunity, defendants contended that plaintiff‘s claims would still fail because she could not demonstrate that she suffered a bodily injury resulting from the negligent operation of a government-owned motor vehicle. In addition, defendants argued that plaintiff‘s alleged sprains and strains to her lower back and shoulder were not compensable because they did not constitute a serious impairment of an important body function under
In response, plaintiff argued that her claims should not be dismissed because although her complaint did “not literally include the words ‘governmental immunity’ or explicit reference to
Defendants replied to the response, and also responded to the motion to amend, requesting that the trial court deny plaintiff‘s motion because it was “made after undue delay and because Defendants’ dispositive motion demonstrates that no amendment would be justified.” Defendants also asserted that any amendment would be futile because plaintiff could not show that Nock negligently operated the City-owned vehicle, that she sustained a bodily injury resulting from the accident, or that she sustained a threshold injury.
Through a written opinion and order, the trial court granted defendants’ motion for summary disposition, dismissed their partial motion for summary disposition as moot, and denied plaintiff‘s request for summary disposition and plaintiff‘s motion to amend her complaint as futile, finding that plaintiff failed to plead in avoidance of governmental immunity. The trial court also found plaintiff‘s injuries “did not result from the Accident and sprains and strains do not satisfy the ‘bodily injury’ element of
Plaintiff moved for reconsideration under
II. STANDARDS OF REVIEW
The grant or denial of summary disposition is reviewed de novo. Glasker-Davis v. Auvenshine, 333 Mich. App. 222, 229; 964 NW2d 809 (2020). “The applicability of governmental immunity and the statutory exceptions to immunity” are also reviewed de novo. Moraccini v. Sterling Hts., 296 Mich. App. 387, 391; 822 NW2d 799 (2012). Although the trial court did not expressly state under which subsection it decided defendants’ motion, because the trial court considered evidence beyond the pleadings and resolution of this case turned on the applicability of governmental immunity to plaintiff‘s claims, we will review plaintiff‘s motion under
A motion for summary disposition under
may be raised on the ground that a claim is barred because of immunity granted by law. When reviewing a motion under
MCR 2.116(C)(7) , this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate. [Dextrom v. Wexford Co., 287 Mich. App. 406, 428-429; 789 NW2d 211 (2010) (citations omitted).]
III. AVOIDANCE OF GOVERNMENTAL IMMUNITY
Plaintiff argues that the trial court erred by granting summary disposition to defendants because she properly pleaded in avoidance of governmental immunity.
As a general rule, a governmental agency is immune from tort liability when it is “engaged in the exercise or discharge of a governmental function.”
In her complaint, plaintiff did not expressly plead that she was bringing her claim under the motor vehicle exception to governmental immunity or cite to
Nevertheless, plaintiff did seek permission to amend her complaint, should the court conclude that it was not properly plead. We review the trial court‘s decision regarding plaintiff‘s motion to amend the pleadings for an abuse of discretion. Sanders v. Perfecting Church, 303 Mich. App. 1, 8-9; 840 NW2d 401 (2013). An abuse of discretion occurs when the trial court‘s decision falls outside the range of reasonable and principled outcomes, or when the trial court makes an error of law. Pioneer State Mut. Ins. Co. v. Wright, 331 Mich. App. 396, 405; 952 NW2d 586 (2020).
“A trial court should freely grant leave to amend a complaint when justice so requires.” Sanders, 303 Mich. App. at 9. However, a motion to amend may be denied for (1) undue delay, (2)
“Prejudice” within the meaning of
MCR 2.118(C)(2) does not mean the opposing party might lose on the merits or might incur some additional costs; rather, it means the opposing party would suffer an inability to respond that the party would not otherwise have suffered if the affirmative defense had been validly raised earlier. [Id. at 374-375 (quotation marks and citations omitted)]
In its order denying plaintiff‘s motion for reconsideration, the trial court stated that it could have denied plaintiff‘s motion to amend her complaint “for undue delay as set forth in the Nock Defendants’ Response.” And in that response, defendants argued that plaintiff‘s motion to amend should be denied for undue delay because plaintiff was aware that her complaint was deficient as early as November 2022, as defendants’ affirmative defenses and initial disclosures put plaintiff on notice of deficiencies within her complaint. Defendants contended that plaintiff waited nearly eight months to move to amend her complaint, after defendants had already filed their motions for summary disposition. But defendants never claimed that plaintiff‘s delay prejudiced them in any way or was the result of bad faith, nor did the trial court ever make such a finding. Thus, plaintiff‘s delay alone did not warrant denial of her motion to amend. See VHS of Mich., Inc., 337 Mich. App. at 374. And, given the facts of the accident, it would not have been futile for plaintiff to amend the complaint to properly allege a negligence claim under the motor vehicle exception. Accordingly, the trial court abused its discretion by denying plaintiff‘s motion to amend.
IV. CAUSATION
Plaintiff also argues that the trial court erred by granting summary disposition to defendants because there was a genuine issue of material fact whether her injuries were caused by the underlying motor vehicle accident.2
A governmental agency is generally immune from tort liability when it is “engaged in the exercise or discharge of a governmental function,”
Defendants argued, and the trial court agreed, that plaintiff could not meet the higher causation standard set forth in Robinson because she failed to present sufficient medical evidence showing that her injuries resulted from the underlying accident. But Robinson did not hold that medical evidence was necessary to satisfy the “resulting from” language of
Thus, to survive summary disposition, plaintiff was required, under
Although causation cannot be established by mere speculation, a plaintiff‘s evidence of causation is sufficient at the summary disposition stage to create a question of fact for the jury if it establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories, although other plausible theories may also have evidentiary support. [Id. (quotation marks and citations omitted).]
On the basis of the evidence presented, we conclude that there is a genuine issue of material fact regarding causation. Although plaintiff had a brief history of lower back and left shoulder pain, there is no evidence to indicate this was ongoing immediately before or at the time of the accident. Plaintiff reported feeling intense pain in her shoulder and back on the same day of the accident, and presented herself for medical treatment shortly thereafter. Plaintiff was referred for MRIs which revealed damage to her back and shoulder, for which she had to receive physical therapy and surgical interventions. Admittedly, her provider‘s affidavit did not explain how any of plaintiff‘s injuries were caused by the accident. Rather, her provider issued a blanket statement that plaintiff‘s shoulder was injured “in the manner in which she described[.]” Moreover, the affidavit did not address plaintiff‘s alleged back injuries. Because an affidavit consisting of conclusory allegations that are devoid of facts is insufficient to demonstrate that there is a genuine issue of material fact, see Quinto, 451 Mich. at 371-372, the affidavit does not create a question of fact regarding whether plaintiff‘s injuries were caused by the accident. However, the testimonial and medical record evidence created “a logical sequence of cause and effect” between the accident and plaintiff‘s injuries, Patrick, 322 Mich. App. at 617. Although defendants’ experts both agreed that plaintiff‘s injuries were not the result of a traumatic event, this does not defeat plaintiff‘s claim, rather, it demonstrates that there is a factual dispute regarding causation. As a result, the trial court erred by granting summary disposition to defendants.
V. EXCESS ECONOMIC DAMAGES
Plaintiff also contends that the trial court erred by holding that she was not entitled to proceed on her claim for excess economic damages under
There are different standards a plaintiff must meet when seeking third-party noneconomic damages compared to economic damages:
MCL 500.3135(1) , (2), and (3)(b) allow third-party tort actions for noneconomic damages if the death, serious impairment of body function, or permanent serious disfigurement threshold is met, whileMCL 500.3135(3)(c) allows for third-party tort actions for certain kinds of economic damages, specifically [d]amages for allowable expenses, work loss, and survivor‘s loss . . . in excess of the daily, monthly, and 3-year limitations contained in the sections applicable to those three types of no-fault benefits. Therefore, we hold that a plaintiff may bring a third party tort action for economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or emotional distress damages, against a governmental entity if the requirements underMCL 500.3135 have been met. [Hannay v. Dep‘t of Transp., 497 Mich. 45, 76; 860 NW2d 67 (2014) (quotation marks and citations omitted).]
Accordingly, plaintiff correctly asserts that nothing in the plain language of
VI. SERIOUS IMPAIRMENT OF AN IMPORTANT BODY FUNCTION
For her last argument, plaintiff asserts that the trial court erred by granting summary disposition to defendants because there was a genuine issue of material fact whether she sustained a serious impairment of an important body function as a result of the accident.
Governmental agencies are “liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner . . . .”
“A ‘serious impairment of body function’ is defined by
With regard to the first requirement, an objectively manifested impairment is one “that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.” McCormick v. Carrier, 487 Mich. 180, 196; 795 NW2d 517 (2010). What is important is ” ‘whether the impairment is objectively manifested, not the injury or its symptoms.’ ” Patrick, 322 Mich. App. at 606, quoting McCormick, 487 Mich. at 197. While mere subjective complaints of pain and suffering are insufficient to establish an impairment, evidence of a physical basis for that pain and suffering may be introduced to show that the impairment is objectively manifested. McCormick, 487 Mich. at 198. With regard to the second requirement, the focus is on whether the body function “has great value, significance, or consequence,” and the relationship of that function to the person‘s life must be considered. Id. at 199. Relevant to this case, a plaintiff‘s use of her back and shoulder are considered important body functions. See Chumley v. Chrysler Corp., 156 Mich. App. 474, 481; 401 NW2d 879 (1986); Williams v. Medukas, 266 Mich. App. 505, 508-509; 702 NW2d 667 (2005). Lastly, with regard to the third requirement, the impairment affects the person‘s ability to lead a normal life if it has “an influence on some of the person‘s capacity to live in his or her normal manner of living.” McCormick, 487 Mich. at 202. This is also a subjective inquiry that does not require a “quantitative minimum as to the percentage of a person‘s normal manner of living that must be affected.” Id. at 202-203.
The record shows that two days after the accident, plaintiff presented at the emergency room complaining of back and left shoulder pain. Plaintiff‘s MRI of her spine showed she had disc bulges, a herniation, and annular tears. The MRI of plaintiff‘s left shoulder showed she had several tears, tendinosis, a mild osteophyte of her inferior glenoid, and adhesive capsulitis. Plaintiff‘s physical therapist observed that she had restricted range of motion in her spine and muscle weakness in her upper extremities. In March 2021, plaintiff underwent a diagnostic arthroscopy to repair three tears within her shoulder. During a follow-up visit, plaintiff‘s physician reported that she still had difficulty moving her shoulder and exhibited signs of new onset adhesive capsulitis. Although defendants’ expert reported that plaintiff “could not have sustained an injury exceeding a soft tissue strain to the spine,” reading the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact whether she sustained a threshold injury. Plaintiff‘s medical records demonstrate that there was evidence of a physical basis for her pain. See McCormick, 487 Mich. at 198. Additionally, plaintiff‘s testimony that she was unable to attend to her daily hygiene needs or drive for about 14 months after the accident is sufficient to demonstrate a question of fact as to whether her ability to lead her normal life was impaired. Accordingly, the trial court erred by finding there was no genuine issue of material fact that plaintiff sustained a threshold injury under
The trial court‘s order granting defendants’ motion for summary disposition is reversed in part, and affirmed in part; the order denying plaintiff‘s motion to amend is reversed; and the case is remanded for further proceedings. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ David H. Sawyer