Michigan Supreme Court 

# Order

Lansing, Michigan

December 12, 2008 Clifford W. Taylor,
Chief Justice

135778 & (70) Michael F. Cavanag h

Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n ROBERT E. BENEFIEL, Robert P. Young, Jr. Stephen J. Markman, Plaintiff-Appellee, J ustices

v SC: 135778

COA: 273664 Livingston CC: 05-021742-NI AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellant.

________________ _________________________/

On order of the Court, the motion for l eave to file a brief amicus curiae is GRANTED. Leave to appeal ha ving been granted and the br iefs 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 cas e to the Livingston Circuit Court for further proceedings not inconsistent with this order. The Court of Appeals properly reversed the Livingston Circuit C ourt’s grant of summary disposition for the

defendant because there remain disputed issues of fact. Vi ewing the evidence in the light most favorable to the plaintiff, the defendant ha s failed to show that, as a matter of law, the plaintiff cannot establish a serious im pairment 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 Living ston Circuit Court that granted summary disposition to the defendant.

The remainder of the Court of Appeals an alysis is faulty, however, because it is improperly premised on the pl aintiff’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 provi ng that his current injury was caused by the subsequent accident (and not by some independe nt 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 impair ment is temporary in order to have his pre

impairment lifestyle considered as his “normal lif e.” It follows that, in this situation, the plaintiff must show either that his preexist ing impairment was exacerbated or that his2

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 rec over noneconomic damages. Accordingly, we VACATE the entire Court of Appeals opinion.

Y OUNG , J. ( concurring ).

I concur in the order. I write separately only to point out that, contrary to Justice Cavanagh’s statement, causati on 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-perm anence 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 im pairment threshold. This would allow a plaintiff who has suffered an ear lier, permanent injury that itself amounts to a serious impairment of body function (suc h 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 re sult is inconsistent with th e no-fault statutory scheme, which allows plaintiffs to recover no neconomic damages when the injuries caused by the defendant’s negligence meet the serious im pairment 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.

C AVANAGH , 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 defenda nt because the plaintiff has presented questions of fact concerning whether his curr ent injury meets the st atutory threshold for a serious impairment of a bodily function under MCL 500.3135(7) an d regarding whether any such serious impairment was caused by th e second accident. I also agree that the Court of Appeals erred in holding that plai ntiff 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 multip le 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 elemen t is wholly absent from the statute’s text. The statute simply does not include a la ck-of-permanency elem ent as an exception to the general “normal life” analysis. On th e contrary, the statute simply states that a3

“‘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 an alysis focuses on the plaintiff’s “normal

life.” One’s normal life is not limited to the na rrow 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 sufficie ntly 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 contra st to the causation analysis, which is a simple objective eval uation of what factual differe nces in person A’s life are legally attributable to person B’s actions. Th e causation question is very limited in scope

and it does not include extens ive 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 im pairment 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 th e plaintiff’s life before and after the accident as well as the significance of any affect ed 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 whethe r an impairment affects a person’s “general,” i.e., overall, ability to l ead his normal life should be identifying how his life has been affected, by ho w much, and for how long. Specific

activities should be examin ed with an understanding that not all activities have the same significance in a person’s overall life._______________________________________ __ 4

In sum, the serious impairment questi on concerns whether the injury meets the statutory threshold, whereas th e causation question simply de termines if the applicable accident caused the injury. While it is true that bot h 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 wr ong to meld the two. But that is exactly what the majority order does by adopting a lack-o f-permanency element in the serious impairment analysis. In essence, this new lack-of-p ermanency 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 inju ry. This wrongly makes a ca usation 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 cont inues 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 th e statute under a fabricated application of

Kreiner . I must note that the major ity order in this case validat es 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-c alled textualism.” Id . at 157 (Cavanagh, J., dissenting).

W EAVER and K ELLY , JJ., join the statement of C AVANAGH , J.

4 Intuitively, when th ere i s a permanent preexisting injury, many defendants will be successful in arguing that a claimant’s cu rrent injuries are unchanged by the latest accident. To be sure, those de fendants 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

December 12, 2008

Clerk