If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JAMIL BARASH,

Plaintiff-Appellant,

and

EUPHRATES PHYSICAL THERAPY AND 

REHAB, INC.,

Intervening Plaintiff,

UNPUBLISHED

June 23, 2022

v No. 357578

Macomb Circuit Court

JOSEPH J. KOLAR and DILISIO CONTRACTING, 

INC.,

LC No. 2018-009702-NF

Defendants-Appellees,

and

SAFECO INSURANCE COMPANY,

Defendant.

Before: LETICA, P.J., and K. F. KELLY and RIORDAN, JJ.

PER CURIAM.

Plaintiff appeals as of right from the order dismissing defendant, Safeco Insurance 

Company (Safeco),

1

in this third-party automobile negligence action. He challenges the trial 

court’s underlying order granting summary disposition to defendants, DiLisio Contracting, Inc. 

(DiLisio) and Joseph J. Kolar (Kolar) (hereinafter “defendants”), premised on the conclusion that 

 

1 Safeco was dismissed with prejudice. Additionally, Euphrates Physical Therapy and Rehab, 

LLC, intervened, but was later dismissed. They are not parties to this appeal.
-2-

plaintiff did not suffer a serious impairment of body function under Michigan’s no-fault act, 

MCL 500.3101 et seq., arising from defendants’ negligence. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

On July 25, 2016, plaintiff, then 76 years old, was waiting at a bus stop that was near the 

site of a construction zone. He was concerned that the bus driver would not see him because of 

the construction occurring in the area.2 Plaintiff walked into the street and stood there for 

approximately three minutes when he was hit by a tractor trailer (truck) owned by DiLisio and 

driven by Kolar. Specifically, Kolar did not see plaintiff behind the truck and placed the truck in 

reverse. The truck bumped into plaintiff, causing him to roll over, fall on his knees, and incur 

abrasions. Plaintiff informed the emergency department staff that “the truck barely bumped into 

him but he lost his balance and fell to the ground.” When transported to the hospital, plaintiff 

complained of pain to his left side and ribs, and the ambulance report indicated plaintiff had “no 

obvious injury” and was “ambulatory on scene[.]” Radiographic imaging taken in the emergency 

department immediately after the accident indicated various degenerative changes in plaintiff’s 

spine, but found no evidence of fracture or acute injury.

Plaintiff filed suit against defendants, asserting a claim of negligence against Kolar and 

claims of statutory liability for negligent operation of its vehicle and vicarious liability against 

DiLisio. Defendants moved for summary disposition under MCR 2.116(C)(10), asserting that 

plaintiff could not meet the threshold requirement of MCL 500.3135(1)3and demonstrate a serious 

impairment of an important body function. In support of the motion, defendants submitted three 

independent medical examinations (IMEs) which indicated that plaintiff had extensive 

degenerative problems before the accident and concluded that plaintiff’s complaints were not 

related to the accident, but to plaintiff’s preexisting conditions. It was alleged that plaintiff’s 

medical records following the accident did not support evidence of fracture but confirmed 

degenerative changes and arthritis in plaintiff’s complaint areas.

Defendants also submitted a surveillance video of plaintiff recorded in May 2019. This 

video showed plaintiff leaving his house, sorting his mail, and walking to a bus stop. As he waited 

for the bus for over thirty minutes, plaintiff walked near the area of the bus stop and did not stand 

in one place for an extended time period. Plaintiff did not appear to be in pain, strained, or labored 

as he walked, and his gait appeared relatively stable. He had no apparent difficulty boarding or 

exiting the bus. Defendants alleged plaintiff’s claimed impairments were not attributable to the 

 

2

In his deposition, plaintiff denied that he was asked to leave the area before the accident by the 

police. However, plaintiff admitted that he received a citation from the police arising from the 

accident, and he paid the fine. Indeed, the investigating detective issued a citation to plaintiff, 

concluding that plaintiff was at fault. Kolar was not issued a citation.

3 Plaintiff’s accident occurred on July 25, 2016, and his complaint was filed on September 19, 

2018. MCL 500.3135 was amended by 21 PA 2019 and 22 PA 2019, both effective June 11, 2019. 

The parties do not allege that the amendments have any application to this litigation. Accordingly, 

our reference to MCL 500.3135 is to the text in effect at the time of the accident and when the 

complaint was filed.
-3-

accident because plaintiff’s medical records indicated he suffered from the same ailments before

the accident. Indeed, before the accident, plaintiff purportedly required assistance with daily living 

and had difficulty with his balance.

In opposition to defendants’ motion, plaintiff claimed that he suffered a serious impairment 

of body function from the accident, which was objectively manifested and apparent in his imaging 

tests taken after the accident. Plaintiff submitted deposition testimony that he walked and rode his 

bike for long distances before the accident, but could no longer do so. Additionally, he asserted 

that he was no longer able to meet with friends to play cards because of his shaking hands. Plaintiff 

alleged that he obtained treatment after the accident for injuries to his shoulders, neck, back, knees, 

and hands. He had surgery on both knees after the accident. Plaintiff’s daughter also testified that 

plaintiff was unable to leave the house without his cane and walk following the accident.

The trial court granted defendants’ motion for summary disposition. The trial court 

examined plaintiff’s extensive medical records before and after the accident and noted plaintiff’s 

imaging studies did not reveal any acute injury to either knee until 2018. The trial court further 

cited to the imaging of plaintiff’s shoulders, back, and neck which showed only degenerative 

changes after the accident, and that plaintiff received in-home physical therapy before the accident. 

Plaintiff’s need for assistance with daily living before the accident was also referenced. 

Ultimately, the trial court concluded that plaintiff did not establish a genuine issue of material fact 

regarding whether he suffered an objectively manifested impairment arising from the accident.

Plaintiff moved for reconsideration, attaching additional medical records to his motion 

showing he sought treatment within weeks of the accident. Plaintiff submitted that the trial court 

ignored the objective changes in plaintiff’s imaging studies before and after the accident. 

Furthermore, plaintiff claimed that he was an “eggshell plaintiff,” because he suffered from 

degenerative body changes in the years preceding the accident. The trial court denied plaintiff’s 

motion for reconsideration and declined to consider additional evidence that was available, but not 

submitted, in opposition to the dispositive motion. Nonetheless, the trial court reaffirmed that this 

evidence did not meet the threshold for serious impairment because it failed to demonstrate “any 

changes in [p]laintiff’s conditions following the accident.” Plaintiff appeals.

II. STANDARD OF REVIEW

A trial court’s ruling on a motion for summary disposition is reviewed de novo. Houston 

v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). Summary disposition is 

appropriate under MCR 2.116(C)(10) where there is “no genuine issue as to any material fact, and 

the moving party is entitled to judgment or partial judgment as a matter of law.” 

MCR 2.116(C)(10). When reviewing a motion for summary disposition challenged under 

MCR 2.116(C)(10), the court considers the affidavits, pleadings, depositions, admissions, and 

other admissible documentary evidence then filed in the action or submitted by the parties in the 

light most favorable to the nonmoving party. MCR 2.116(G)(4), (G)(5); Buhl v City of Oak Park, 

507 Mich 236, 242; 968 NW2d 348 (2021). We review the trial court’s decision on a motion 

for reconsideration for an abuse of discretion. St John Macomb Oakland Hosp v State Farm Mut 

Auto Ins Co, 318 Mich App 256, 261; 896 NW2d 85 (2016). The trial court abuses its discretion 

when its decision falls outside the range of reasonable and principled outcomes. Id.
-4-

III. ANALYSIS

Plaintiff contends that the trial court erred in granting defendants’ motion for summary 

disposition because the evidence, when viewed in a light most favorable to plaintiff, presented a 

genuine issue of material fact addressing whether plaintiff suffered an objectively manifested 

impairment. We disagree.

“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.” MCL 500.3135(1). 

“Serious impairment of body function” is defined as “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(5). The question whether an injured party has suffered a serious impairment 

presents a question of law for the court if there is no factual dispute surrounding the nature and 

extent of the person’s injuries or any factual dispute is immaterial to determining whether the 

standard was met. MCL 500.3135(2)(a); McCormick v Carrier, 487 Mich 180, 190-191; 795 

NW2d 517 (2010).

The plain and unambiguous language of the statute contains three requirements that are 

necessary to establish a serious impairment of body function: “(1) an objectively manifested 

impairment (2) of an important body function that (3) affects the person’s general ability to lead 

his or her normal life.” McCormick, 487 Mich at 194-195. “Objectively manifested” is “an 

impairment that is evidenced by actual symptoms or conditions that someone other than the injured 

person would observe or perceive as impairing a body function.” Id. at 196. The term 

“impairment” relates to the impact of damage that arises from an injury. Id. at 197. When 

addressing impairment, the focus is not on the injuries, but on how the injuries affected a particular 

body function. Id. A plaintiff must introduce evidence demonstrating a physical basis for his 

subjective complaints of pain and suffering, and this showing generally requires medical 

documentation. Id. at 198. Important body function refers to a function of significance and will 

vary depending on the person. Id. at 199. Therefore, the inquiry regarding an important body 

function is “an inherently subjective inquiry that must be decided on a case-by-case basis, because 

what may seem to be trivial body function for most people may be subjectively important to some, 

depending on the relationship of that function to the person’s life.” Id.

“[T]he aggravation or triggering of a preexisting condition can constitute a compensable 

injury.” Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009). Despite the 

existence of a preexisting condition, recovery may be allowed if the trauma caused by the accident 

triggered symptoms from that condition. Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 

(2000). However, a causal connection between injuries may be too attenuated in light of the 

passage of time and intervening events. See e.g., McPherson v McPherson, 493 Mich 294, 298-

299; 831 NW2d 219 (2013).

In granting summary disposition, the trial court concluded that plaintiff failed to 

demonstrate an objectively manifested impairment as a matter of law. Indeed, the parties did not 

dispute the nature of plaintiff’s impairments. However, plaintiff submits that the trial court failed 

to recognize that either the accident caused plaintiff’s impairments or plaintiff’s preexisting 

impairments were exacerbated by the accident. Nonetheless, plaintiff was required to demonstrate 
-5-

whether an objectively manifested impairment was “caused by his or her ownership, maintenance, 

or use of a motor vehicle.” MCL 500.3135(1).

A review of plaintiff’s medical records reveals that he suffered from extensive medical 

complaints dating back to the early 1990s, and plaintiff reported the same complaints to his 

shoulder, back, neck, and knees following the accident. Treatments that he received prior to the 

accident, such as physical therapy, were also administered after the accident. However, although 

some of the medical reports reflected that plaintiff reported his involvement in a pedestrianvehicular accident, there was no commensurate determination by the treating physicians that the 

condition plaintiff experienced was caused by or preexisting and aggravated as a result of the 

accident. That is, plaintiff failed to present medical evidence to support the exacerbation of 

preexisting conditions. In contrast, defendants submitted three IMEs all indicating plaintiff’s 

impairments were not the result of the accident, but of degenerative diseases. Defendants’ IMEs 

also rejected the argument that plaintiff’s impairments were exacerbated by the accident. One 

examiner concluded that plaintiff likely suffered contusions from being bumped by the truck, but 

found that, “[a]ll of the diagnoses related to the motor vehicle accident, contusions and abrasions 

have resolved and are no longer supported by objective findings.” In October 2017, this examiner 

further concluded that there was no treatment needed for injuries sustained as a result of the 

accident in question. In contrast, the MRI results upon which plaintiff relied to show the 

exacerbation of his medical conditions after the accident were taken three years after the accident, 

and after plaintiff suffered additional falls and injuries.

Plaintiff’s reliance on imaging test results from three years after the accident showing 

impairments ignores the impact of the passage of time and intervening events on injury and 

causation. See McPherson, 493 Mich at 298-299. Plaintiff failed to correlate his impairments to 

the accident as opposed to degenerative issues necessarily exacerbated by the passage of time, 

particularly when plaintiff suffered various falls and injuries between the accident and the imaging 

on which he relies.

In response to defendants’ motion for summary disposition, plaintiff was required to 

provide the trial court with evidence to create a genuine issue of material fact regarding serious 

impairment, and failed to do so. When opposing a motion for summary disposition, a party must 

present more than conjecture and speculation to meet the burden of providing evidentiary proof to 

establish a genuine issue of material fact. Meisner Law Group, PC v Weston Downs Condo Ass’n, 

321 Mich App 702, 723; 909 NW2d 890 (2017). “Mere speculation or conjecture is insufficient 

to establish reasonable inferences of causation.” Sniecinski v Blue Cross & Blue Shield of Mich, 

469 Mich 124, 140; 666 NW2d 186 (2003). Plaintiff did not provide any testimony to refute the 

opinions of defendants’ experts, and failed to introduce any evidence, which could attribute 

plaintiff’s impairments, new or exacerbated, to the accident. Simply put, plaintiff failed to present 

documentary evidence to support that his medical conditions or the aggravation of existing medical 

conditions was caused by the ownership, maintenance, or use of a motor vehicle as opposed to 
-6-

degeneration caused by the aging process. The trial court did not err in granting defendants’ 

motion for summary disposition.4

Affirmed.

/s/ Anica Letica

/s/ Kirsten Frank Kelly

/s/ Michael J. Riordan

 

4 Plaintiff also alleged that the trial court rendered subjective findings of fact addressing the impact 

of plaintiff’s injuries on his life and inappropriately applied an incorrect standard to the objective 

manifestation of injury inquiry. Our review of the trial court’s decision does not comport with 

plaintiff’s argument. Rather, the trial court examined and summarized plaintiff’s medical records 

and deposition testimony then concluded that this evidence failed to correlate plaintiff’s 

impairments or aggravation of injuries to the accident. Finally, plaintiff does not separately contest 

the trial court’s denial of his motion for reconsideration and reaffirmance of the grant of summary 

disposition.