370 N.W.2d 15 | Mich. Ct. App. | 1985
PAGE
v.
CLARK
Michigan Court of Appeals.
Thurswell, Chayet & Weiner (by Janet M. Brandon), for plaintiff.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Ernest R. Bazzana and James Raftery), for defendants.
Before: V.J. BRENNAN, P.J., and CYNAR and J.W. FITZGERALD,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court's finding that, as a matter of law, plaintiff had not suffered a serious impairment of body function, based on which the court granted defendants' motion for summary judgment.
Plaintiff raises three issues on appeal, none of them meritorious.
Plaintiff first argues that the trial court should not have ruled on defendants' motion for summary judgment because discovery was not complete. Since plaintiff failed to argue this in the trial court, we are precluded from considering it on appeal. Moreover, plaintiff had already obtained and submitted a report by the treating physician. For purposes of a motion for summary judgment, discovery need not be complete; the question is *699 merely whether further discovery stands a fair chance of uncovering factual support for the litigant's position. Kortas v Thunderbowl & Lounge, 120 Mich App 84, 87; 327 NW2d 401 (1982). Neither plaintiff nor the doctor's report gives any indication that the doctor would testify that plaintiff's injuries were more serious than stated in the report.
Plaintiff next argues that summary judgment was inappropriate because a factual dispute existed regarding the nature and extent of plaintiff's injuries. To the contrary, defendants' attorney explicitly stated at the hearing on summary judgment, "We are not disputing the nature and extent of the plaintiff's treatment". Defendants argued instead that plaintiff's injury, as reported in medical records, was not a serious impairment of body function as a matter of law. The dispute in this case is not the factual question of the extent of plaintiff's injuries, but rather the legal question of whether those injuries amount to a serious impairment.
The determination of whether a plaintiff has suffered a serious impairment of body function so as to maintain an action in tort under the Michigan no-fault act is to be made by the trial court as a matter of law. Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983). The injuries need not be permanent to be considered serious, but they must be objectively manifested. Id. Injuries which do not prevent a plaintiff from performing tasks related to employment, or which do not interfere with the general ability to live a normal life, do not constitute serious impairment of body function. Braden v Lee, 133 Mich App 215, 219; 348 NW2d 63 (1984); Guerrero v Schoolmeester, 135 Mich App 742, 750; 356 NW2d 251 (1984).
*700 Plaintiff in this case claimed "whiplash" injuries which caused the wearing of a cervical collar, limited range of motion of his neck and head, and his absence from work for three months. Plaintiff's treating physician reported that, right after the automobile accident, plaintiff had a tremendous amount of spasm and tenderness in his neck muscles, and movement of his neck was extremely restricted. Three months later, the doctor pronounced "a nearly 100 percent resolution of the problem".
We do not think the trial court erred in finding that plaintiff had not suffered a serious impairment of body function as required by the no-fault act. Summary judgment was proper in this case.
Affirmed.
NOTES
[*] Retired Supreme Court Justice, sitting on the Court of Appeals by assignment.
