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### STATE OF MICHIGAN

COURT OF APPEALS

MYRTLE FLOSSIE MOORE,

Plaintiff-Appellant, UNPUBLISHED June 16, 2016

v No. 320246

Eaton Circuit Court

WILLIAM THOMAS SWAFFORD and COCACOLA REFRESHMENTS USA, INC., LC No. 12-000969-NI

Defendants-Appellees.

Before: B ORRELLO , P.J., and R ONAYNE K RAUSE and R IORDAN , JJ.

R IORDAN

, J. ( dissenting ).

I believe the trial court prope rly granted defendants’ motion for summary disposition. Therefore, I respe ctfully dissent.

Plaintiff, born in 1938, has a lengthy medical history. She h as a history of arthritis with chronic back pain, cancer of the spine, osteoarthritis, hiatal hernia, hypercholesteremia, hypertension, renal stones, anemia, diabetes, hypothyroidism, c ataracts, and radiation and chemotherapy for bone cancer, colon cancer, liver cancer, and s pinal cord cancer. Plaintiff also received medical treatment in 2006 for neck pain that radiated into her right shoulder, which included pain in the neck and right shoulder when she moved her right shoulder. As the majority concedes, plaintiff had a significant medical history showing m ultiple treatments and issues with her shoulder, back, and spine

At issue in this case is whether the plaintiff suffered a seri ous impairment as a result of the June 13, 2011 car accident. In that incident, plaintiff wa s rear-ended when stopped at a traffic light. Because her hands were on the steering wheel, s he believed her shoulder probably twisted from the impact. However , she declined transport to th e hospital after the accident.

After checking with her insurance agent, plaintiff went to the emergency room for shoulder pain. Her shoulder was x-rayed, although there was no swelling or bruising. She subsequently saw several doctors , including Dr. John Morgan, an orthopedic surgeon. She informed him that the pain in her right shoulder was caused by the accident. An MRI of her shoulder was taken, and demonstrated a 6-millimeter gap in the portion of her rotator cuff. Morgan concluded that she most likely tore her rotator cuff, ev en though the radiologist detected no evidence of a tear. Morgan diagnosed plaintiff with rotator cuff syndrome and shoulder impingement syndrome.-2- After continued treatment, including physical therapy and surg ery, plaintiff initiated this instant action against defendant s, seeking damages for nonecono mic losses under the no-fault act. MCL 500.3135(1). Defendants eventually moved for summary disposition, contending that there was no genuine issue of material fact regarding whether p laintiff suffered a serious impairment of a body function under the no-fault act. The tria l court granted defendants’ motion, and plaintiff now appeals.

Under the no-fault act, MCL 500.3101 et seq. , tort liability for noneconomic loss is limited to cases in which a plaintiff “has suffered death, seri ous impairment of body function, or permanent serious disfigurement” that was “caused by [the] owne rship, maintenance, or use of a motor vehicle.” MCL 500.3135(1). A “serious impairment of body function” requires proof of: “(1) an objectively manifested impairment (2) of an important b ody function that (3) affects the person’s general ability to l ead his or her normal life.” McCormick v Carrier , 487 Mich 180, 195; 795 NW2d 517 (2010); MCL 500.3135(5). Courts may determin e whether a person suffered a serious impairment of body function as a matter of l aw if (1) there is not a factual dispute concerning the nature and extent of the person’s injuri es, or (2) there is a factual dispute concerning the nature and extent of the person's injuries, but that dispute is not material to the determination of whether the person suffered a serious impairme nt of body function. MCL 500.3135(2)(a).

In the instant case, the trial court found that there was some factual dispute regarding the nature and extent of plaintiff’s injuries. Nonetheless, it con cluded that the dispute was not material to the determination of whether plaintiff suffered a s erious impairment of a body function. In other words, the trial court concluded that any i njury that may have incurred did not affect her general ability to live a normal life, which was the type of everyday living she had prior to the June 13, 2011 car accident.

The trial court did not err. Under McCormick , a plaintiff must show that an accidentrelated injury had “an influence on some of the person’s capaci ty to live in his or her normal manner of living.” 487 Mich at 202. This inquiry “necessarily requires a comparison of the plaintiff's life before and after the incident.” Id. See also Nelson v Dubose , 291 Mich App 496, 499; 806 NW2d 333 (2011) (“[T]he pla intiff has to show that the plaintiff's ability to lead a normal life has been affected by comparing the plaintiff’s life before and after the injury.”). The

McCormick Court noted three caveats: (1) th e plaintiff’s general ability to lead her pre-accident normal life need only be affected, not destroyed; (2) the focus is on whether the impairment affected the plaintiff’s ability to maintain her normal manner of living, not whether some of her manner of living has itself been affected; and (3) the impairme nt need not be permanent. Id. at

202-203.

The plaintiff testified that after the accident, she was able t o continue to live alone, even at her advanced age. No one came to live with her or to help w ith day-to-day activities. She continued to mow her lawn, cook, clean her own home, and sweep the floors. Some of her activities apparent ly were limited, such as washing walls, clim bing ladders, carrying groceries, or holding her grandchildren. Howev er, given plaintiff’s advanced age and extensive medical history before the auto accident , which included pain in her kn ees, shoulders, and neck, it cannot be said that her life before the accident was more active, in a ny material way, than it was after-3- the incident. See Nelson , 291 Mich App at 499. Plaintiff also continued to drive, agai n at her advanced age, although not as frequently.

In summary, when viewing the facts in a light most favorable to plaintiff, the evidence before us does not establish a genuine issue of material fact t hat plaintiff’s injuries affected her general ability to lead her normal life after the accident at i ssue.

Accordingly, I would find that the trial court properly granted summary disposition to

defendants. For thes e reasons, I dissent.

/s/ Michael J. Riordan