Order Michigan Supreme Court

Lansing, Michigan 

December 12, 2008 Clifford W. Taylor,

 Chief Justice 

135778 & (70) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

ROBERT E. BENEFIEL, Robert P. Young, Jr. 

Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 135778 

 COA: 273664 

Livingston CC: 05-021742-NI 

AUTO-OWNERS INSURANCE COMPANY, 

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the motion for leave to file a brief amicus curiae is 

GRANTED. Leave to appeal having been granted and the briefs and oral arguments of 

the parties having been considered by the Court, we hereby VACATE the December 27, 

2007 judgment of the Court of Appeals and REMAND this case to the Livingston Circuit 

Court for further proceedings not inconsistent with this order. The Court of Appeals 

properly reversed the Livingston Circuit Court’s grant of summary disposition for the 

defendant because there remain disputed issues of fact. Viewing the evidence in the light 

most favorable to the plaintiff, the defendant has failed to show that, as a matter of law, 

the plaintiff cannot establish a serious impairment of body function. See MCL 

500.3135(7); Kreiner v Fischer, 471 Mich 109 (2004). For that reason, we REVERSE 

the September 25, 2006 order of the Livingston Circuit Court that granted summary 

disposition to the defendant. 

The remainder of the Court of Appeals analysis is faulty, however, because it is 

improperly premised on the plaintiff’s “normal life” as it existed prior to his first 

accident. The Court of Appeals wrongly concluded, as a matter of law, that the plaintiff 

established a serious impairment of body function. A plaintiff who has suffered 

successive injuries bears the burden of proving that his current injury was caused by the 

subsequent accident (and not by some independent occurrence). See Richman v City of 

Berkley, 84 Mich App 258, 263 (1978); M Civ JI 36.11 and 36.15. Therefore, the 

plaintiff must prove that his preexisting impairment is temporary in order to have his preimpairment lifestyle considered as his “normal life.” It follows that, in this situation, the 

plaintiff must show either that his preexisting impairment was exacerbated or that his 
 

2 

recovery was prolonged as a result of the subsequent accident for which he seeks 

noneconomic damages. Furthermore, this subsequent impairment must meet the statutory 

threshold in order for the plaintiff to recover noneconomic damages. Accordingly, we 

VACATE the entire Court of Appeals opinion.

 YOUNG, J. (concurring). 

I concur in the order. I write separately only to point out that, contrary to Justice 

Cavanagh’s statement, causation is necessarily intertwined with the serious impairment 

inquiry under MCL 500.3135, because such an inquiry requires a preliminary finding 

with regard to the permanence or non-permanence of the plaintiff’s preexisting injury. 

Justice Cavanagh would allow a court to consider causation only after determining 

whether the plaintiff’s combined injuries meet the serious impairment threshold. This 

would allow a plaintiff who has suffered an earlier, permanent injury that itself amounts 

to a serious impairment of body function (such as the amputation of a leg) to recover 

noneconomic damages for any injury caused by a subsequent accident, however minor 

those actual injuries are. Such a result is inconsistent with the no-fault statutory scheme, 

which allows plaintiffs to recover noneconomic damages when the injuries caused by the 

defendant’s negligence meet the serious impairment threshold. Even the Court of 

Appeals acknowledged that a plaintiff is not entitled to use a preexisting, permanent 

injury to reach the serious impairment threshold. Benefiel v Auto-Owners Ins Co, 277 

Mich App 412, 419-420 (2007). Accordingly, I concur in the entirety of this Court’s 

order.

 CAVANAGH, J. (concurring in part and dissenting in part). 

I agree that we should affirm the Court of Appeals reversal of the trial court’s 

grant of summary disposition for the defendant because the plaintiff has presented 

questions of fact concerning whether his current injury meets the statutory threshold for a 

serious impairment of a bodily function under MCL 500.3135(7) and regarding whether 

any such serious impairment was caused by the second accident. I also agree that the 

Court of Appeals erred in holding that plaintiff established a serious impairment as a 

matter of law. Thus, I too would remand to the trial court for further proceedings. 

However, I do not agree that, in a multiple accident scenario, a plaintiff must 

prove that his preexisting impairment is not permanent in order for his lifestyle before 

that preexisting impairment to be included in his “normal life” evaluation. MCL 

500.3135(7). 

First, this new lack-of-permanency element is wholly absent from the statute’s 

text. The statute simply does not include a lack-of-permanency element as an exception 

to the general “normal life” analysis. On the contrary, the statute simply states that a 
 

3 

“‘serious impairment of body function’ [is] an objectively manifested impairment of an 

important body function that affects the person’s general ability to lead his or her normal 

life.” Id. Accordingly, the serious impairment analysis focuses on the plaintiff’s “normal 

life.” One’s normal life is not limited to the narrow temporal snapshot directly before the 

accident. Nor is one’s normal life limited to his life after a prior permanent injury. 

Instead, one’s normal life includes a broader factual analysis than the majority order 

suggests in this case.1

 Accordingly, I respectfully dissent because I continue to refuse to 

take part in this Court’s proclivity for using the judicial pen to insert terms and 

definitions into the no-fault act.2 

Second, the majority’s order wrongly conflates the distinct questions of serious 

impairment and causation. I recognize that, in a multiple accident scenario, an injury 

from a later accident may not equate to a serious impairment because a claimant’s 

injuries from earlier accidents were not sufficiently aggravated by the second accident. 

But, that scenario implicates an issue of causation, rather than one of serious impairment. 

Causation and serious impairment are distinct issues. Indeed, the serious 

impairment question focuses on a particular injury’s effect on the claimant’s normal life. 

This involves a totality-of-the-circumstances analysis of many subjective indicia of the 

injury’s effect on the claimant’s entire normal life: medical history, work history, and 

recreational-activity history.3

 This stands in stark contrast to the causation analysis, 

which is a simple objective evaluation of what factual differences in person A’s life are 

legally attributable to person B’s actions. The causation question is very limited in scope 

and it does not include extensive qualitative analysis. 

1

 The majority in this case has accepted as much in Kreiner v Fischer, 471 Mich 109 

(2004), in stating that “the effect of the impairment on the course of a plaintiff’s entire 

normal life must be considered,” id. at 131, and that the “[the evaluation includes] 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 plaintiff’s overall life,” id. at 

132-133. Furthermore, “we merely require that the whole life be considered in 

determining what satisfies this threshold . . . .” Id. at 133 n 16 (emphasis in original). 

2

 See Kreiner, supra at 147-149 (Cavanagh, J., dissenting). 

3

 See Kreiner, supra at 131, stating: 

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. 
 _________________________________________ 

 

 

 

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In sum, the serious impairment question concerns whether the injury meets the 

statutory threshold, whereas the causation question simply determines if the applicable 

accident caused the injury. While it is true that both questions look at the claimant’s life 

before and after the applicable accident, they are inherently different in both scope and 

analysis. Accordingly, it is wrong to meld the two. But that is exactly what the majority 

order does by adopting a lack-of-permanency element in the serious impairment analysis. 

In essence, this new lack-of-permanency element holds that if a claimant has a permanent 

injury, then the claimant’s “normal life” analysis must not include consideration of his 

life before the permanent injury. This wrongly makes a causation conclusion dispositive 

on the distinct question of serious impairment. If a defendant wishes to argue that his 

actions (or his insured’s actions) did not cause claimant’s injuries because the claimant 

already had those injuries (whether they be permanent or not), that is a causation 

argument—not a serious impairment argument.4 

Finally, I continue to believe that Kreiner was wrongly decided. But I realize that 

a majority of this Court continues to believe otherwise. Accepting this, I seriously 

question Kreiner’s efficacy as a clarion statement describing what does, or does not, 

establish a serious impairment. Here, as in other post-Kreiner cases, the majority order 

simply cites Kreiner’s rule and then adds an element that was wholly absent from that 

decision.5 Kreiner simply does not include a lack-of-permanency element in its 

comprehensive serious impairment analysis. Hence, this new element is the latest edition 

of this Court’s changing application of the statute under a fabricated application of 

Kreiner. I must note that the majority order in this case validates my earliest reservations 

about Kreiner, a case in which I observed that “[t]oday’s decision [Kreiner] serves as a 

chilling reminder that activism comes in all guises, including so-called textualism.” Id. at 

157 (Cavanagh, J., dissenting).

 WEAVER and KELLY, JJ., join the statement of CAVANAGH, J. 

4

 Intuitively, when there is a permanent preexisting injury, many defendants will be 

successful in arguing that a claimant’s current injuries are unchanged by the latest 

accident. To be sure, those defendants are entitled to dismissal, but their success rests on 

a lack of causation, not an absence of serious impairment. 

5

 See, e.g., Jones v Olson, 480 Mich 1169, 1169-1173 (2008) (Cavanagh, J., dissenting). 

1211 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

December 12, 2008 

 Clerk