KREINER v FISCHER; STRAUB v COLLETTE
Docket Nos. 124120, 124757
Supreme Court of Michigan
Decided July 23, 2004
Rehearing denied post, 1201
471 Mich 109
Argued April 20, 2004 (Calendar Nos. 4, 5).
Daniel L. Straub brought an action in the Monroe Circuit Court against Phillip M. Collette and Teresa M. Heil-Wylie, seeking noneconomic tort damages under the no-fault act,
In an opinion by Justice TAYLOR, joined by Chief Justice CORRIGAN, and Justices YOUNG and MARKMAN, the Supreme Court held:
In Kreiner, although the plaintiff suffered an impairment after comparing his life before and after the accident, the nature and extent of that impairment did not affect his overall or broad ability to lead his normal life.
In Straub, given that the injury was not extensive, recuperation time was short, unremarkable, and virtually complete, and the effect of the injury on body function was not pervasive, the plaintiff‘s general ability to live his normal life was not affected.
- In order to be able to maintain an action for noneconomic tort damages under the no-fault act, the objectively manifested impairment of an important body function that the plaintiff has suffered must affect his general ability to lead his normal life. Determining whether the impairment affects a plaintiff‘s general ability to lead his normal life requires considering whether the plaintiff is for the most part able to lead his normal life. If he is generally able to do so, then his general ability to lead his normal life has not been affected by the impairment.
- The objectively manifested impairment of an important body function must affect the course of a person‘s life. Although 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 and he does not meet the serious impairment of body function threshold.
- In determining whether a plaintiff who alleges a serious impairment of body function as a result of a motor vehicle accident meets the statutory threshold for third-party tort recovery, a court must, first, determine that there is no factual dispute concerning the nature and extent of the person‘s injuries, or, if there is a factual dispute, that it is not material to the determination whether the person has suffered a serious impairment of body function. If the court so concludes, it may continue to the next step. Otherwise, it may not decide the issue as a matter of law. Second, if the court can decide the issue as a matter of law, it must determine if an important body function of the plaintiff has been
impaired and whether the impairment is objectively manifested. Where both answers are affirmative, the court must then decide if the impairment affects the person‘s general ability to lead his normal life by comparing the person‘s life before and after the accident as well as the significance of any affected aspects on the course of the person‘s overall life. Once this is identified, the court must engage in an objective analysis regarding whether any difference between the person‘s preaccident and postaccident lifestyle has actually affected the person‘s general ability to conduct the course of his normal life. - Among the factors that may be evaluated in determining whether the plaintiff‘s general ability to conduct the course of his normal life has been affected are the nature and extent of the impairment, the type and length of treatment required, the duration of the impairment, the extent of any residual impairment, and the prognosis for eventual recovery. Self-imposed restrictions based on real or perceived pain do not establish the extent of any residual impairment.
The decision of the Court of Appeals is reversed in Straub.
The decision of the Court of Appeals is reversed in Kreiner.
Justice CAVANAGH, joined by Justices WEAVER and KELLY, dissenting, stated that the definition of “serious impairment of body function” contained in
Straub satisfies the three elements and, therefore, the decision of the Court of Appeals should be affirmed. The majority errs in adding to the inquiry temporal limitations regarding the duration of the impairment, the type and length of treatment required, the extent of the residual impairment, and the prognosis for eventual recovery.
STATUTES - NO-FAULT ACT - SERIOUS IMPAIRMENT OF BODY FUNCTION.
Tort liability for serious impairment of body function requires an evaluation of the injury‘s effect on the plaintiff‘s general ability to lead his normal life, which requires a comparison of the plaintiff‘s lifestyle before and after the accident, but a minor change in how a person performs a specific activity does not alter the fact that the person is still generally able to perform the activity; an objective analysis of the plaintiff‘s actual capabilities and capacities is undertaken to determine the plaintiff‘s general ability to lead his normal life; the analysis requires evaluation of the nature and extent of the impairment, the type and length of treatment required, the duration of the impairment, the extent of any residual impairment, and the prognosis for eventual recovery; self-imposed restrictions based on real or perceived pain do not establish the extent of any residual impairment that affects the plaintiff‘s general ability to lead his normal life (
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by George T. Sinas), Cochran, Foley & Associates, P.C. (by Terry L. Cochran), and Cooper & Kirk, PLLC (by Charles J. Cooper, Hamish P.M. Hume, and Derek L. Shaffer), for plaintiff Kreiner.
Law Offices of Lawrence S. Katkowsky, P.C. (by Lawrence S. Katkowsky and Dondi R. Vesprini), for plaintiff Straub.
Garan Lucow Miller, P.C. (by Daniel S. Saylor, William J. Brickley, and Beth A. Andrews), for defendant Fischer.
Amici Curiae:
Gross, Nemeth & Silverman, P.L.C. (by Mary T. Nemeth), for the Auto Club Insurance Association in Kreiner.
Miller, Canfield, Paddock and Stone, P.L.C. (by Kevin J. Moody and Jaclyn Shoshana Levine), for the Coalition Protecting Auto No Fault.
Gross, Nemeth & Silverman, P.L.C. (by Mary T. Nemeth), for the Insurance Institute of Michigan in Straub.
OPINION OF THE COURT
TAYLOR, J. In these consolidated cases, we granted leave to appeal to consider whether plaintiffs satisfy the “serious impairment of body function” threshold set by the no-fault insurance act in order to be able to maintain an action for noneconomic tort damages. See
Before 1973, actions seeking damages for injuries resulting from motor vehicle related accidents proceeded, for the most part, pursuant to common-law accident principles in Michigan‘s courts. However, with the enactment of the no-fault act, 1972 PA 294, effective October 1, 1973, the Legislature abolished tort liability generally in motor vehicle accident cases and replaced it with a regime that established that a person injured in such an accident is entitled to certain economic compensation from his own insurance company regardless of fault. Similarly, the injured person‘s insurance company is responsible for all expenses incurred for medical care, recovery, and rehabilitation as long as the service, product, or accommodation is reasonably necessary and the charge is reasonable.
Following enactment of the no-fault act, Governor Milliken requested of this Court an advisory opinion regarding the act‘s constitutionality. We issued such an opinion in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), holding that the significant wording of the statute—“serious impairment of body function” and “permanent serious disfigurement“—provided standards sufficient for legal interpretation. We also held that the fact-finding related to these standards was within the province of the jury rather than a judge.
This Court next addressed the no fault act in Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). We held that the act was a proper exercise of the police power and that the legislative scheme did not offend either the due process or equal protection guarantees of the Michigan Constitution. We did, however, find the rate-making procedure of the act unconstitutional and allowed the Legislature eighteen months to correct it. As our subsequent order in Shavers demonstrates, the
The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses. The Legislature believed this goal could be most effectively achieved through a system of compulsory insurance, whereby every Michigan motorist would be required to purchase no-fault insurance or be unable to operate a motor vehicle legally in this state. Under this system victims of motor vehicle accidents would receive insurance benefits for their injuries as a substitute for their common-law remedy in tort.
... The act‘s personal injury protection insurance scheme, with its comprehensive and expeditious benefit system, reasonably relates to the evidence advanced at trial that under the tort liability system the doctrine of contributory negligence denied benefits to a high percentage of motor vehicle accident victims, minor injuries were overcompensated, serious injuries were undercompensated, long payment delays were commonplace, the court system was overburdened, and those with low income and little education suffered discrimination. [402 Mich 578-579].4
Six years later, after the phrase “serious impairment of body function” and other phrases in the act, such as “permanent serious disfigurement,” had been placed
At least two reasons are evident concerning why the Legislature limited recovery for noneconomic loss, both of which relate to the economic viability of the system. First, there was the problem of the overcompensation of minor injuries. Second, there were the problems incident to the excessive litigation of motor vehicle accident cases. Regarding the second problem, if noneconomic losses were always to be a matter subject to adjudication under the act, the goal of reducing motor vehicle accident litigation would likely be illusory. The combination of the costs of continuing litigation and continuing overcompensation for minor injuries could easily threaten the economic viability, or at least desirability, of providing so many benefits without regard to fault. If every case is subject to the potential of litigation on the question of noneconomic loss, for which recovery is still predicated on negligence, perhaps little has been gained by granting benefits for economic loss without regard to fault. [Cassidy, supra at 500.]
Further, the Court rejected its Advisory Opinion conclusion that juries should find facts and held that trial judges were to decide, as a matter of law, whether the plaintiff had suffered a serious impairment of body function when there was no factual dispute about the nature and extent of the plaintiff‘s injuries, or when
Yet, four years after Cassidy was decided, and interestingly after four new justices joined the Court, in
This resolution produced sufficient dissatisfaction to the extent that eventually, in 1995, a bill was placed before the Legislature to reform the 1972 act. As enacted, the bill was 2 1/2 pages long. The relevant goal of the 1995 bill was “to modify tort liability arising out of certain accidents.” Notably, the bill amended only
an objectively manifested impairment of an important body function that affects the person‘s general ability to lead his or her normal life. [
MCL 500.3135(7) .]
Plaintiffs and their proponents argue that after 1995 it is only necessary to show that there has been an impairment of an important body function that, in some way, influences, touches or otherwise affects the plaintiff‘s lifestyle, regardless of degree. If some effect has been demonstrated, the new legislative test is satisfied, regardless of the extent of the effect. (Emphasis added).9
Defendants and their amicis, on the other hand, contend that a plaintiff must demonstrate not simply
II. FACTS AND PROCEEDINGS BELOW
A. STRAUB V COLLETTE
Daniel Straub injured three fingers on his nondominant hand when his motorcycle collided with an automobile on September 19, 1999. He suffered a broken bone in his little finger and injured tendons in his ring and middle fingers. Straub underwent outpatient surgery on September 23, 1999, to repair the tendons. No medical treatment was required for the broken bone. He wore a cast for about one month following surgery to assist the healing of the tendons. He also took prescription pain medication for about two weeks following the surgery and completed a physical therapy program.
About two months following the surgery, Straub‘s doctor noted that Straub‘s injuries were healing nicely. Around the same time, Straub returned to work as a cable lineman for a cable television company, initially working twenty to twenty-five hours a week, but returning to full-time work about three weeks later, on December 14, 1999. He testified at his deposition that since returning to work, he was able to perform all his job duties, but sometimes with discomfort. In addition, he testified that until late December 1999, he had difficulty doing household chores, such as washing dishes, doing yard work, and making property repairs. He was also unable to operate his archery shop during the hunting season in the fall of 1999. Operating his shop required him to repair bows, make arrows, and process deer meat. In mid-January 2000, however, he was able to resume playing bass guitar in a band that performed on weekends. By the time of Straub‘s depo-
Straub filed an action in circuit court to recover noneconomic damages under the no-fault act. The trial court granted defendants’ motion for summary disposition, finding that Straub‘s injuries relate only to “extrinsic” considerations such as playing guitar and processing deer meat, and thus did not meet the threshold of “serious impairment of body function.”
The Court of Appeals reversed, holding that, between the date of the accident and mid-January 2000, Straub‘s injuries affected his “general ability to lead his normal life,” and, thus, Straub satisfied the serious impairment threshold. Straub v Collette, 254 Mich App 454, 459; 697 NW2d 178 (2002). The Court reasoned that Straub was unable to play bass guitar in his band for approximately four months after the accident and that, before the accident, he performed almost every weekend and practiced several times each week. It also concluded that four months was a significant amount of time during which Straub was unable to play the guitar. The panel further reasoned that Straub was unable to engage in full-time employment for about three months. The Court concluded that, for a limited amount of time, Straub‘s injuries affected his general ability to lead his normal life, “particularly his ability to perform musically and to work.” Id.
Thereafter, defendants filed an application for leave to appeal in this Court. On June 12, 2003, this Court entered an order vacating the judgment of the Court of Appeals and remanding this case to the Court of Ap-
On remand, the Court of Appeals again reversed. Straub v Collette (On Remand), 258 Mich App 456; 670 MW2d 725 (2003). The Court again concluded that Straub‘s injuries affected his ability to play the guitar and to work. The Court determined that Straub‘s injuries affected his ability to perform household tasks and to operate his archery shop. Thus, the Court of Appeals concluded that Straub‘s injuries affected his ability to lead his normal life, “given the work and tasks that he performed before the accident....” Id. at 463. We subsequently granted leave to appeal. 469 Mich 948 (2003).
B. KREINER V FISCHER
On November 28, 1997, plaintiff Kreiner was injured in an automobile accident. Four days after the accident he visited his family doctor, complaining of pain in his lower back, right hip, and right leg. The doctor ordered x-rays and cortisone injections for pain. Kreiner returned to his doctor three days later and complained that the pain was persisting. The doctor administered another cortisone injection and prescribed physical therapy and pain medication.
When Kreiner complained that his pain continued six weeks after the accident, his doctor referred him to a neurologist, Karim Fram, M.D., who conducted an electromyography (EMG)10 that revealed mild nerve irritation to the right fourth lumbar (l4) nerve root in Kreiner‘s back and degenerative disc disease with
Kreiner returned to Dr. Fram in May 1998 complaining of pain radiating from the back of his right thigh and right calf, which pain was aggravated by bending over and either sitting or standing for any length of time. Dr. Fram prescribed pain medication and a continued program of back and muscle strengthening exercises. In August 1998, after Kreiner returned and complained of constant lower back pain aggravated by climbing, bending over, pushing, and pulling, Dr. Fram prescribed a three-week physical therapy course. In October 1998, Dr. Fram again prescribed an anti-inflammatory medication and home exercises.
Dr. Fram‘s notes reveal that plaintiff visited him in August 1999 for a follow-up examination. At that time, Kreiner was still complaining of continuous pain in his lower back and of right leg pain radiating to the lower extremities on the right side. Standing, lifting, climbing a ladder, and staying in one position for a long time tended to aggravate the pain. Dr. Fram advised Kreiner to continue the home exercises, to use a back support during daily activity, to avoid lifting objects over fifteen pounds, and to refrain from excessive bending or twisting. Dr. Fram also prescribed a mild muscle relaxant. Kreiner subsequently stopped treating with any physician and stopped taking medications.
Before and after the accident, Kreiner worked as a self-employed carpenter and construction worker performing home remodeling, such as building decks, doing
In October 1998, Kreiner filed a complaint against Fischer, seeking noneconomic damages under
While somewhat restricted, the Plaintiff in this case is able to engage in lifting, bending, twisting, and standing that is required by his job. Furthermore, he continues to engage in his favorite recreational activity which is hunting.
Based on these facts, Plaintiff is hard-pressed to show how his alleged impairment is serious enough to affect his normal life.
Further, the Court finds that under the factors enumerated in Harris [v Lemicex, 152 Mich App 149; 393 NW2d 559 (1986)], the claimed injury is not serious. Here, Plaintiff‘s treatment is limited to wearing a back support garment and taking muscle relaxants and painkillers. He has not been actually physically disabled at any time, and the duration of his injury is intermittent.
Finally, his own doctor has stated that there is a chance that the damaged root will heal completely.
For these reasons, the Court finds as a matter of law the impairments for which Plaintiff claims he suffers from do not impinge in any real sense in his ability to lead a normal life. Therefore, he is not entitled to maintain this action in tort against the Defendant under the No-Fault Statute,
MCL 500.3135(1) .
The Court of Appeals reversed the trial court‘s decision. Kreiner v Fischer, 251 Mich App 513; 651 NW2d 95 (2002). The Court determined that the trial court erred by finding that Kreiner‘s impairment was not “serious enough” because
On appeal, this Court peremptorily vacated the Court of Appeals decision and remanded for consideration regarding “whether plaintiff‘s impairment affects his general ability to lead his normal life.” 468 Mich 885 (2003). This Court‘s order stated:
The issue here is whether plaintiff satisfies the “serious impairment of body function” threshold set by the no-fault insurance act in order to be able to maintain an action for noneconomic tort damages. See
MCL 500.3135(1) . The no-fault act,MCL 500.3135(7) , defines “serious impairment of body function” as “an objectively manifested impairment of an important body function that affects theperson‘s general ability to lead his or her normal life.” The circuit court granted defendant‘s motion for summary disposition, concluding that plaintiff‘s impairment is not “serious enough” to meet the tort threshold. The Court of Appeals reversed, concluding that plaintiff is not required to show that his impairment “seriously” affects his ability to lead his normal life in order to meet the tort threshold. The Court of Appeals then concluded that, if the facts as alleged by plaintiff are true, his impairment has affected his general ability to lead his normal life. In our judgment, both the circuit court and the Court of Appeals erred. Although a serious effect is not required, any effect does not suffice either. Instead, the effect must be on one‘s general ability to lead his normal life. Because the Supreme Court believes that neither of the lower courts accurately addressed this issue, the case is remanded to the Court of Appeals for it to consider whether plaintiff‘s impairment affects his general ability to lead his normal life. [468 Mich 885 (2003) (emphasis in original).]
On remand, the same panel of the Court of Appeals again reversed the trial court‘s decision. Kreiner v Fischer (On Remand), 256 Mich App 680; 671 NW2d 95 (2003). The Court of Appeals stated that this Court‘s order did not change in any significant manner the panel‘s analysis in its previous opinion. The panel reiterated a large portion of its previous analysis because this Court had vacated the prior opinion. The Court of Appeals then agreed with this Court‘s order that, under
III. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of summary disposition. American Federation of State, Co & Muni Employees v Detroit, 468 Mich 388, 398; 662 NW2d 695 (2003). Similarly, questions of statutory interpretation are reviewed de novo. In re MCI, 460 Mich 396, 413; 596 NW2d 164 (1999).
IV. ANALYSIS
In construing statutes we examine the language the Legislature has used. That language is the best indicator of the Legislature‘s intent. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).
A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
The issue in these consolidated cases is whether plaintiffs have suffered a “serious impairment of body function.”
an objectively manifested impairment of an important body function that affects the person‘s general ability to lead his or her normal life.
In order to be able to maintain an action for noneconomic tort damages under the no-fault act, the “objectively manifested impairment of an important body function” that the plaintiff has suffered must affect his “general ability” to lead his normal life. Determining whether the impairment affects a plaintiff‘s “general ability” to lead his normal life requires considering whether the plaintiff is “generally able” to lead his normal life. If he is generally able to do so, then his general ability to lead his normal life has not been affected by the impairment.
Random House Webster‘s College Dictionary (1991) defines “general” as “considering or dealing with broad, universal, or important aspects.” “In general” is defined as “with respect to the entirety; as a whole.” Id. “Generally” is defined as “with respect to the larger part; for the most part.” Id. Webster‘s New International Dictionary defines “general” as “the whole; the total; that which comprehends or relates to all, or the chief part; a general proposition, fact, principle, etc.;—opposed to particular; that is, opposed to special.” Accordingly, determining whether a plaintiff is “generally able” to lead his normal life requires considering whether the plaintiff is, “for the most part” able to lead his normal life.
In addition, to “lead” one‘s normal life contemplates more than a minor interruption in life. To “lead” means, among other things, “to conduct or bring in a particular course.”13 Given this meaning, the objectively manifested impairment of an important body function
The starting point in analyzing whether an impairment affects a person‘s “general,” i.e., overall, ability to lead his normal life should be identifying how his life has been affected, by how much, and for how long. Specific activities should be examined with an understanding that not all activities have the same significance in a person‘s overall life. Also, minor changes in how a person performs a specific activity may not change the fact that the person may still “generally” be able to perform that activity.
From all the above we deduce several principles that a court must consider in determining whether a plaintiff who alleges a “serious impairment of body function” as a result of a motor vehicle accident meets the statutory threshold for third-party tort recovery. The following multi-step process is meant to provide the lower courts with a basic framework for separating out those plaintiffs who meet the statutory threshold from those who do not.
First, a court must determine that there is no factual dispute concerning the nature and extent of the per
Second, if a court can decide the issue as a matter of law, it must next determine if an “important body function” of the plaintiff has been impaired. It is insufficient if the impairment is of an unimportant body function. Correspondingly, it is also insufficient if an important body function has been injured but not impaired. If a court finds that an important body function has in fact been impaired, it must then determine if the impairment is objectively manifested. Subjective complaints that are not medically documented are insufficient.
If a court finds that an important body function has been impaired, and that the impairment is objectively manifested, it then must determine if the impairment affects the plaintiff‘s general ability to lead his or her normal life. 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 following nonexhaustive list of objective factors may be of assistance in evaluating whether the plaintiff‘s “general ability” to conduct the course of his normal life has been affected: (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 impairment17, and (e) the prognosis for eventual recovery.18 This list of factors is not meant to be exclusive nor are any of the individual
V. APPLICATION TO STRAUB
We are satisfied that there is no material factual dispute regarding the nature and extent of Straub‘s injuries. Thus, it is proper to determine whether he sustained a serious impairment of body function as a matter of law.
First, we find that Straub‘s injuries to his nondominant hand (a closed fracture, open wounds, tendon injuries to two fingers, and a quarter-size wound on the palm) constituted an impairment of an important body function that was objectively manifested.
Thus, the issue is whether the impairment affected his general ability to live his life. In determining whether Straub‘s general, overall ability to lead his
The Court of Appeals considered an additional month of work “disability” because Straub did not return to his weekend job as a bass guitar player until mid-January 2000. Straub estimated that over a four-month period he had to miss fifteen to twenty club dates.
Straub‘s treatment consisted of having his wounds sutured, wearing a cast, and taking antibiotics and pain medication. Four days after the accident, outpatient surgery was performed on the fingers and palm. The treatment was not significant or long-term. Within two months, the fracture and surgical wounds had healed. There were two sessions of physical therapy. At that point, Straub discontinued all medical treatment. Plaintiff estimated he was ninety-nine percent back to normal by mid-January 2000. Given that Straub‘s injury was not extensive, recuperation was short, unremarkable, and virtually complete, and the effect of the injury on body function was not pervasive, we conclude
VI. APPLICATION TO KREINER
We are satisfied that there is no factual dispute that is material to the determination whether Kreiner suffered a serious impairment of body function.21 Thus, it is appropriate to determine as a matter of law whether he experienced a serious impairment of body function.
First, we find that Kreiner‘s medically documented injuries to his lower back, right hip, and right leg constitute an impairment of an important body function that was objectively manifested.
Thus, the issue is whether the impairment affected his general ability to lead his life. We find that Kreiner‘s
Kreiner states that he can no longer stand on a ladder for longer than twenty minutes, can no longer lift anything over eighty pounds, and was forced to limit his workday to six hours because he can no longer work eight-hour days. Kreiner does not contend, however, that these limitations prevent him from performing his job. He also has difficulty walking more than a half mile without resting and can no longer hunt rabbits, although he continues to hunt deer.
Looking at Kreiner‘s life as a whole, before and after the accident, and the nature and extent of his injuries, we conclude that his impairment did not affect his overall ability to conduct the course of his normal life.22 While he cannot work to full capacity, he is generally able to lead his normal life. A negative effect on a particular aspect of an injured person‘s life is not sufficient in itself to meet the tort threshold, as long as the injured person is still generally able to lead his normal life. Considered against the backdrop of his preimpairment life, Kreiner‘s postimpairment life is not so different that his “general ability” to conduct the course of his normal life has been affected.23
Because Kreiner failed to establish that his impairment affected his general ability to conduct the course of his normal life, he did not satisfy the “serious impairment of body function” threshold for recovery of noneconomic damages. Accordingly, the trial court properly granted summary disposition of Kreiner‘s lawsuit.
VII. RESPONSE TO THE DISSENT
It must be pointed out that the dissent‘s approach leads to the rather dismaying conclusion that the intent of the Legislature in 1995 was, in effect, to pull down the no-fault temple and produce an auto insurance catastrophe for the state‘s drivers. That is, the dissent concludes that the 1995 amendment, despite no words to this effect, was designed, as the thrust of his argument makes clear, to undermine the great compromise (no-fault benefits in return for limited tort remedies) that all previous Supreme Court decisions have recognized as existing in the no-fault legislation and that is an indispensable requirement to make no-fault viable. We decline to join him in this calculated exercise predicated on what we believe is a studied ignorance of what the Legislature intended.
VIII. CONCLUSION
In both of the cases before us the trial courts granted summary disposition for defendants because the courts
The decision of the Court of Appeals is reversed in Straub.
The decision of the Court of Appeals is reversed in Kreiner.
CORRIGAN, C.J., and YOUNG and MARKMAN, JJ., concurred with TAYLOR, J.
CAVANAGH, J. (dissenting). In these cases, this Court is called upon to interpret
I. RULES OF STATUTORY INTERPRETATION
Questions of statutory interpretation are questions of law, which this Court reviews de novo. In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). “The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Id. at 411. To this end, this Court abides by the governing principle that the first step in determining the Legislature‘s intent is to examine the language of the statute itself. Id. “If the statute is unambiguous on its face, the Legislature will be presumed to have intended the meaning expressed, and judicial construction is neither required nor permissible.” Id.
MCL 500.3135
For a cause of action for damages pursuant to subsection (1) filed on or after July 26, 1996, all of the following apply:
(a) The issues of whether an injured person has suffered serious impairment of body function or permanent serious disfigurement are questions of law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the person‘s injuries.
(ii) There is no factual dispute concerning the nature and extent of the person‘s injuries, but the dispute is not material to the determination as to whether the person has suffered a serious impairment of body function or permanent serious disfigurement.
Pursuant to the plain and unambiguous language of
The question becomes, however, who decides whether a particular plaintiff has satisfied the tort threshold where there is a factual dispute concerning
Important to the resolution of these cases is the statutory definition of “serious impairment of body function.”
A. OBJECTIVELY MANIFESTED
The clear import of the “objectively manifested” requirement is that the impairment must be observable or identifiable in order for the impairment to satisfy the first prong of the legislative definition. “Objective” means “1. Of or having to do with a material object as distinguished from a mental concept. 2. Having actual existence or reality. 3. a. Uninfluenced by emotion, surmise, or personal prejudice. b. Based on observable phenomena; presented factually . . . .” The American Heritage Dictionary, Second College Edition (1982).
B. OF AN IMPORTANT BODY FUNCTION
Once it is determined that the impairment is objectively manifested, the trial court or jury must then decide whether an important body function is impaired. “Important” means “[m]arked by or having great value, significance, or consequence.” Id. Importance or value is necessarily a subjective inquiry—what may be important to one individual may not be as important or valuable to another. As such, the Legislature plainly intended the second prong of the analysis to be subjective in nature, in contrast to the first prong.1 Thus, the “of an important body function” analysis does not lend itself to any judicial line drawing, and the utilization of nonexhaustive factors is unwarranted.
For example, suppose a person is injured in a motor vehicle accident and, as result, the person is unable to fully manipulate her pinky finger to some degree. To an “average” person, the ability to fully extend or bend her pinky finger may not be important. But suppose the person injured in the motor vehicle accident is Roger Clemens (and he loses the zip on his fastball), or B. B. King (and he can no longer play guitar in the same fashion), or Annika Sorenstam (and she loses the distance on her drives). For these individuals, the ability to manipulate their pinky finger is important. Therefore,
C. THAT AFFECTS THE PERSON‘S GENERAL ABILITY TO LEAD HIS OR HER NORMAL LIFE
Central to the resolution of these cases is the proper interpretation of the third prong of the Legislature‘s definition of “serious impairment of body function.” “Affect” means “[t]o have an influence on; bring about a change in.” American Heritage Dictionary, supra. “General” means:
1. Relating to, concerned with, or applicable to the whole or every member of a class or category. 2. Affecting or characteristic of the majority of those involved; prevalent: a general discontent. 3. Being usually the case; true or applicable in most instances but not all. 4. a. Not limited in scope, area, or application: as a general rule. b. Not limited to one class of things: general studies. [Id. (emphasis in original).]
“Able” means “having sufficient power, skill, or resources to accomplish an object [sic, objective].” Merriam-Webster Online Dictionary, <http://www.m-w.com> (accessed June 21, 2004). Thus, the Legislature requires that the impairment have an influence on most, but not all, of the person‘s capacity “to lead his or her normal life.”
The last phrase in the statutory definition of “serious impairment of body function” inevitably contemplates a subjective inquiry. The phrase “his or her normal life” requires a court to compare a particular plaintiff‘s life before and after the impairment. Further, a person‘s “normal” life is unavoidably relative and, thus, inherently subjective. Because such an endeavor proceeds on a case-by-case basis and each particular plaintiff‘s ability to lead his own normal life is uniquely individual
In sum, the third prong of the serious impairment of body function analysis requires a reviewing court to compare the plaintiff‘s pre- and post-accident life and determine whether the impairment has an influence on most, but not all, of the plaintiff‘s capacities to lead his preaccident lifestyle.2
III. THE LEGISLATURE‘S STATED TEST
On the basis of the foregoing, the unambiguous statute sets forth the following test. The first step in the serious impairment of body function analysis is to determine whether there is a factual dispute concerning the nature and extent of the person‘s injuries and, if there is a factual dispute, whether the dispute is material to the serious impairment of body function issue.
If there is no factual dispute concerning the nature and extent of the person‘s injuries, a question of law is presented for the trial court.
If there is a factual dispute concerning the nature and extent of the person‘s injuries, but the dispute is not material to adjudging whether the person has suffered a serious impairment of body function, a question of law is presented for the trial court.
If there is a factual dispute concerning the nature and extent of the person‘s injuries and the dispute is
Once this initial determination is made, the second step is to decide whether the Legislature‘s statutory definition has been fulfilled. Under the plain and unambiguous language of
The Legislature‘s statutory definition does not lend itself to any bright-line rule or imposition of nonexhaustive list of factors. Instead, the “serious impairment of body function” inquiry proceeds on a case-by-case basis because the statute requires inherently fact-specific and circumstantial determinations. The Legislature recognized that what is important to one is not important to all, a brief impairment may be devastating whereas a near permanent impairment may have little effect. The Legislature avoided drawing lines in the sand and so must we.
IV. APPLICATION OF THE LEGISLATURE‘S STATED TEST
A. STRAUB V COLLETTE
Because there is no factual dispute regarding the nature and extent of plaintiff Straub‘s injuries, the existence of a serious impairment of body function is determined as a matter of law.
The second prong of the serious impairment of body function analysis is satisfied where the impairment is to a body function that Straub considers valuable. According to Straub‘s testimony, the injury to his hand was to an important body function. Straub relied on the use of his hand to work as a cable lineman, play guitar in his band, operate his bow shop during deer season, and perform household and personal tasks. Thus, because Straub‘s use of his hand was related to important body functions, the second prong of
Central to the resolution of this case is whether the third prong of the serious impairment analysis has been met; namely, whether the injury to his hand affected Straub‘s general ability to lead his normal life. Under the undisputed facts in this case, I believe that Straub‘s injury had an influence on most, but not all, of Straub‘s capacity to lead his unique preaccident lifestyle.
Straub was able to work as a cable lineman before the motor vehicle accident, but could not perform that work following the accident. Further, before the injury, Straub played in a band that practiced three or four times a week and played at clubs almost every weekend. After the accident, Straub could not play his guitar. Before the accident, Straub would operate his bow shop during deer season, but, as a result of the motor vehicle accident, he could not operate his shop during the 1999 season. Finally, Straub had difficulty performing house
The majority reaches a contrary conclusion because it imposes additional requirements on Straub that the Legislature never envisioned. The majority places great weight on the fact that
Straub‘s injury was not extensive, recuperation was short, unremarkable, and virtually complete, and the effect of the injury on body function was not pervasive . . . . There is no medical evidence that Straub has any residual impairment or that the course of Straub‘s life has been affected. The temporary limitations Straub experienced do not satisfy the statutory prerequisites. [Ante at 135-136 (emphasis added).]
However, the clear language of
Moreover, the majority disregards the principles of statutory interpretation that it claims to follow. For example, in construing the term “lead” in convenient isolation, the majority states, “To ‘lead’ means, among other things, ‘to conduct or bring in a particular course.’ . . . Given this meaning, the objectively manifested impairment of an important body function must affect the course of a person‘s life. Accordingly, the affect of the impairment on the course of a plaintiff‘s entire normal life must be considered.” Ante at 130-131 (citation omitted and emphasis added). Additionally, the majority further asserts that the impairment “must be of sufficient duration to affect the course of a plaintiff‘s life.” Id. at 135. In what is best described as tortured logic, the majority has seen fit to impose a temporal requirement teetering on the brink of permanency into the unambiguous statute. Because the statute does not define “serious impairment of body function” with respect to permanency, or any temporal factor for that
It is evident that the amount of time Straub was injured drives the majority‘s result. A fair reading of the majority opinion seems to indicate that if Straub‘s injuries were of a more permanent nature, the majority may be inclined to find that the requirements of
While this roughly four-month serious impairment of body function may appear to be at odds with the stated
B. KREINER V FISCHER
Because there is a factual dispute concerning the nature and extent of plaintiff Kreiner‘s injuries and such a dispute is material to the serious impairment of body function issue, a question of fact is presented. Kreiner is a self-employed construction worker and carpenter. Additionally, Kreiner engages in recreational hunting. After the motor vehicle accident, Kreiner claimed he could no longer work eight-hour days, was unable to stand on a ladder longer than twenty minutes, could no longer perform general roofing work, was unable to lift heavy items, could no longer walk more than one-half mile, and could no longer hunt rabbits.
Defendant attempted to submit videotapes to the trial court that allegedly demonstrate that Kreiner‘s injuries do not affect his life to the degree that Kreiner claims. Additionally, in its brief to this Court, defendant argues that these videotapes show Kreiner climbing up and down extension ladders, driving nails, tearing off siding, reaching, lifting, and crawling on a roof. In initially remanding this case, the Court of Appeals directed the trial court to consider the admissibility of the videotape offered by defendant to determine whether there are material issues of fact regarding Kreiner‘s claims relative to the effects of his injuries. Kreiner v Fischer, 251 Mich App 513, 519; 651 NW2d 433 (2002), vacated and remanded 468 Mich 885 (2003). Thus, there is a factual dispute that is material to the
Kreiner‘s injuries were observable and identifiable. The injury to Kreiner‘s back was observable and verified by magnetic resonance imaging and electromyography examinations. Because the injury was objectively manifested, the first prong of
The third prong of the statutory definition of “serious impairment of body function” is satisfied if the impairment has an influence on most, but not all, of Kreiner‘s capacity to lead his preaccident lifestyle. In resolving this issue, I find the reasoning of the Court of Appeals on remand to be persuasive.
We find that one‘s general ability to lead his or her normal life can be affected by an injury that impacts the person‘s ability to work at a job, where the job plays a significant role in that individual‘s normal life, such as in the case at bar. Employment or one‘s livelihood, for a vast majority of people, constitutes an extremely important and major part of a person‘s life. Whether it be wrong or right, our worth as individuals in society is often measured by our employment. Losing the ability to work can be devastating; employment, regardless of income issues, is important to a sense of purpose and feeling of vitality. For those working a standard forty-hour work week, a quarter of their lifetime before retirement is devoted to time spent on the job. An
injury affecting one‘s employment and ability to work, under the right factual circumstances, can be equated to affecting the person‘s general ability to lead his or her normal life. For many, life in general revolves around a job and work. It would be illogical to conclude that where a person loses the ability to work because of an injury resulting from a motor-vehicle collision, after being gainfully employed, the person‘s life after the accident, in general, would be unaffected. [Kreiner v Fischer (On Remand), 256 Mich App 680, 688-689; 671 NW2d 95 (2003).]
Moreover, the panel noted, “Here, there was documentary evidence presented by plaintiff that his ability to walk, undertake certain physical movements, and engage in recreational hunting was limited by the injury. These limitations along with plaintiff‘s alleged employment limitations, if true, indicate that plaintiff suffered a serious impairment of body function under
In support of its conclusion that Kreiner did not satisfy
Implicit in the majority‘s rationale is the idea that a person has not suffered a serious impairment of body function unless that person is absolutely precluded from engaging in their particular preaccident lifestyle and the impairment lasts the length of the person‘s life. Stated differently, it is not enough that Kreiner can only function at seventy-five percent of his preaccident work ability, because the majority would conclude that Kreiner must not be able to work at all.5 It is not enough that Kreiner is limited in his lifting, bending, twisting, and standing, because the majority would conclude that Kreiner must not be able to lift, bend, twist, and stand at all.6 The majority would conclude that it is not enough that Kreiner cannot hunt rabbits, because Kreiner can hunt deer. The majority would conclude that it is not enough that Kreiner can no longer walk one-half mile, because Kreiner can still walk.
Such an all-or-nothing approach is not supported by the unambiguous text of the statute. Moreover, it is evident that the indivisible sum of the affected lifestyle activities mentioned above leads to the logical conclusion that Kreiner‘s injuries had an influence on most, but not all, of his capacity to lead his preaccident life. It is equally evident that the majority uses the facts of the
Despite the majority‘s assertions to the contrary, its application of its stated test in Kreiner demonstrates that it believes that every aspect of a person‘s life must be affected in order to satisfy the tort threshold, and the effects must last the course of the plaintiff‘s entire normal life. For example, the majority concludes that the term “general” in
whether a plaintiff is “generally able” to lead his normal life requires considering whether the plaintiff is, “for the most part” able to lead his normal life.
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[T]he effect of the impairment on the course of a plaintiff‘s entire normal life must be considered. Although 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 and he does not meet the “serious impairment of body function” threshold. [Id. at 130, 131 (emphasis added).]
The majority further states, “we merely require that the whole life be considered in determining what satisfies [the] threshold . . . .” Id. at 133 n 16 (emphasis added).
The term “general” as used in
Similarly, in its attempt to effectively raise the statutory threshold, the majority‘s actual application of its test seeks to revive Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), in full. In Cassidy, this Court previously held that the “serious impairment of body function” threshold was satisfied where the injury affects “the person‘s general ability to live a normal life.” Id. at 505 (emphasis added). Later, in DiFranco v Pickard, 427 Mich 32, 66; 398 NW2d 896 (1986), this Court found that standard flawed because “there is no such thing as ‘a normal life.‘” (Emphasis added.) In 1995, the Legislature amended the no-fault act and set forth its own definition of “serious impairment of body function.”
The majority claims that in 1995 the Legislature was “[a]pparently cognizant” of the DiFranco Court‘s repudiation of Cassidy‘s “a normal life” standard. Ante at 121 n 7. The majority further states:
[T]he Legislature, in the 1995 act, requires that the impairment affect “the person‘s general ability to lead his or her normal life.” (Emphasis added.) It is then clear that, harkening to the DiFranco Court‘s guidance that there is no objectively “normal life,” the Legislature modified the entirely objective Cassidy standard to a partially objective and partially subjective inquiry. [Id. at 121.]
In construing
However, the majority merely pays lip service to its own construction and fails to actually compare Kreiner‘s pre- and post-accident life. Kreiner framed the
The plain and unambiguous language set forth by the Legislature simply requires that the impairment affect a person‘s general ability to lead his normal life. Unlike the majority, I prefer to simply apply
V. RESPONSE TO THE RESPONSE TO THE DISSENT
I am cognizant of the overall purpose of the no-fault scheme. Further, I am aware that my view may be perceived as an invitation to increased litigation; but this is the logical byproduct of the unambiguous words chosen by the Legislature. Any apparent tension be-
The majority suggests that my approach is sacrilegious to the “no-fault temple” and is an exercise predicated on “studied ignorance.” Ante at 138. While admittedly unaware that I was required to worship the no-fault insurance gods, I believe that my “studied ignorance” is more properly labeled as “judicial restraint.” If ignorance comes from applying this unambiguous statute as written and not substituting my own view for that of the Legislature, I must say that ignorance is bliss. If so-called wisdom comes from rewriting this unambiguous statute to comport with my own preference on how the statute should be written and applied, in this instance I must choose “ignorance.”
Today‘s decision serves as a chilling reminder that activism comes in all guises, including so-called textualism.
VI. CONCLUSION
Under accepted principles of statutory interpretation, a plain and unambiguous statute should speak for itself. We should not casually read anything into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute. Because the majority departs from this premise, I must respectfully dissent. Rather, I would apply
WEAVER and KELLY, JJ., concurred with CAVANAGH, J.
Notes
The majority poses the following question which I believe is indicative of the difference between the majority and the dissent in this case:“It has been said of one such plan that the practical effect of the adoption of personal injury protection insurance is to afford the citizen the security of prompt and certain recovery to a fixed amount of the most salient elements of his out-of-pocket expenses * * *. In return for this he surrenders the possibly minimal damages for pain and suffering recoverable in cases not marked by serious economic loss or objective indicia of grave injury, and also surrenders the outside chance that through a generous settlement or a liberal award by a judge or jury in such a case he may be able to reap a monetary windfall out of his misfortune.”
Does the dissent really believe that an impairment lasting only a few moments has the same effect on a person‘s “general ability to lead his or her normal life” as an impairment lasting several years or that an impairment requiring annual treatment has the same effect on a person‘s “general ability to lead his or her normal life” as an impairment requiring daily treatment? [Ante at 133 n 18.]
In response, I must note that the statutory threshold is evaluated on a case-by-case basis and under the majority‘s rationale none of the majority‘s hypothetical plaintiffs is likely to meet the threshold. The majority would effortlessly conclude that interrupting several years out of, for example, forty is a minor interruption. This is precisely the reason why this Court should avoid reading additional temporal requirements into the unambiguous statute.
Moreover, my interpretation of
The majority notes that “[d]espite his limitations, Kreiner‘s tax returns revealed that 1998 was his highest income-earning year, including several years before the injuries occurred.” Id. at 126 n 12. However, such an assertion ignores the idea that Kreiner claims to have been working at seventy-five percent of his preaccident ability. If Kreiner‘s claims are true, Kreiner may have earned twenty-five percent more that year. Thus, I do not find Kreiner‘s 1998 tax returns dispositive.... impairment of body function is better understood as referring to important body functions....
We believe that the Legislature intended an objective standard that looks to the effect of an injury on the person‘s general ability to live a normal life....
Another significant aspect of the phrase “serious impairment of body function” is that it demonstrates the legislative intent to predicate recovery for noneconomic loss on objectively manifested injuries. Recovery for pain and suffering is not predicated on serious pain and suffering, but on injuries that affect the functioning of the body....
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... [W]e conclude that an injury need not be permanent to be serious. Permanency is, nevertheless, relevant. (Two injuries identical except that one is permanent do differ in seriousness.) [Id. at 504-506.]
Although a serious effect is not required, any effect does not suffice either. Instead, the effect must be on one‘s general ability to lead his normal life. [Emphasis in original.]