-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

RACHEL SMITH,

Plaintiff-Appellant, UNPUBLISHED April 13, 2017

v No. 329285
Genesee Circuit Court ONTAIS JENKINS JOHNSON, MONIQUE NICOLE SMITH, PROGRESSIVE MICHIGAN
INSURANCE COMPA NY, and WEST BEND MUTUAL INSURANCE COMPANY, LC No. 13-101299-NI

Defendants-Appellees.

Before: S TEPHENS , P.J., and S HAPIRO and G ADOLA , JJ.

G ADOLA

, J

. ( dissenting ).

In this action for non-economic damages under the no-fault act , MCL 500.3101 et seq., the trial court granted summary disposition to defendant insure rs pursuant to MCR 2.116(C)(10) finding that plaintiff had failed to establish a genuine issue of material fact with respect to whether the injuries she allegedly sustained in an automobile a ccident affected her general ability
to lead her normal life. Because I disagree with the conclusio n of the majority opinion that the trial court incorrectly reache d this decision, I respectfully d issent.

This case arises from a motor vehicle accident that occurred o n June 10, 2011. Plaintiff was a passenger in a car driven by her husband; their car was p roceeding through an intersection when it was hit by another vehicle. Neither the owner nor the driver of the other car was insured and consequently, plaintiff br ought this action against defenda nt insurers for uninsured motorist
benefits.

Plaintiff has a history of chronic back and neck pain and inca pacity resulting from those conditions. In 2009, she began to r eceive regular medical care to address her symptoms of neck and back pain, cervical radicul opathy, anxiety, and sleeplessne ss; plaintiff related these symptoms to a 2006 vehicle accident. Plaintiff continued to re ceive care for her back and neck pain from her treating physicia n throughout 2010, and into 2011 . In March 2011, an EMG showed “cervical paraspinal dene rvation with radiculopathy at C 5-C6 roots.” An MRI showed cervical spondylosis. Her treati ng physician excused her from work from April 18, 2011 to April 29, 2011 due to “severe neck and shoul der pain on both sides.”-2- On April 25, 2011, plaintiff began treating with a new physici an for “bilateral back, neck, leg and arm pain” which plaintiff contended was exacerbated by “exercising, sitting, standing, walking, bending, pushing, pulling, squatting, lying down and c oughing.” At that time, plaintiff asserted that as a result of her pain she could not do her job as a preschool teacher, nor could she engage in housework, yard work, or other daily activities. Pla intiff testified that although in the past she had participated in recreational activities such as mo torcycling, bowling, tennis, basketball, and track, she stopped these activitie s after her b ack pain necessitated her being excused from work. Plaintiff’s new physician excused her from work for six weeks ending on June 6, 2011, and on May 25, 2011, extended the time off work f or three more months.

The accident occurred on June 10, 2011. After the accident, p laintiff continued to treat with her physician for back pain, and also attended physical th erapy. The therapist’s records from her June 28, 2011 appointment report that plaintiff’s “rec ent pain was begun in February 2011 and since has not improved,” but make no mention of the Ju ne 10, 2011 accident. Plaintiff now contends that she has serious impairment of body function a rising from the June 10, 2011 accident and seeks non-economic damages as a result.

Under the no-fault act, “[a] person remains subject to tort li ability 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 per manent serious disfigurement.” MCL 500.3135(1). A serious impairment of body function is defi ned by the act 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). Our Supreme Court has described this as a three-pronged test in which the person asse rting the claim must establish “(1) an objectively manifested impai rment (2) of an important body f unction 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). When there is no factual dispute reg arding the nature and extent of the plaintiff’s injuries material to determining when these thr eshold standards are met, the threshold question of whether a plaintiff has suffered a seriou s impairment of body function is a question of law for the trial court. Id. at 193.

In this case, for purposes of the motion for summary dispositi on, the parties dispute only whether plaintiff established th e third prong of the test, that is, whether the injuries allegedly arising from the June 10, 2011 accident affect her general abil ity to lead her normal life. That determination requires a comparison of plaintiff’s life before and after the incident in question.

Id . at 202. To prevail, plaintiff must demonstrate that some of her general ability to live in her normal manner has been affected, not that some of her normal ma nner of living has itself been
affected. Id . at 202. “General” as used in the statute modifies “ability.” Id . at 202. As explained in McCormick , “‘general’ does not refer to only one specific detail or part icular part of a thing, but, at least some parts of it.” Id . at 201. The inquiry is subjec tive and case specific, and does not require a specific temporal showing or a “quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.” Id . at 203.

In this case, the majority opinion concludes that the trial co urt erred by focusing on the causation of plaintiff’s limitati ons rather than upon the subje ctive nature of plaintiff’s life before and after the accident. I disagr ee. The trial court record de monstrates that the trial court was clearly focused on the third prong of the McCormick test. The trial court properly compared-3- plaintiff’s life before the June 10, 2011 accident to her life after the accident and determined that plaintiff had failed to present e vidence creating a genuine iss ue of material fact regarding whether her injuries allegedly arising from the accident affect her general ability to lead her normal life. Before the June 10, 2011 accident, plaintiff repo rted to her doctor that her pain was exacerbated by “exercising, sitting, standing, walking, bending , pushing, pulling, squatting, lying down and coughing.” Plaintiff informed her doctor that she cou ld not do her job as a preschool teacher, nor could she do housework, yard work, or “daily activ ities.” She was unable to engage in her previous recreational activities. Before the June 10, 2 011 accident, plaintiff had been restricted from work, and on May 25, 2011, plaintiff’s treating physician excused plaintiff from
work for three additional months.

After the June 10, 2011 accident, plaintiff contended that she could not return to her job, could not do housework or yard wo rk, could not participate in r ecreational activities, and needed assistance with daily activities such as basic hygiene. Compar ing plaintiff’s life before the June 10, 2011 accident to her life after the accident, there is virt ually no difference in her general ability to lead her normal life. The only difference is that p laintiff contends that she now needs assistance with basic hygiene and getting out of bed, whereas b efore the accident she stated that she could not perform “daily act ivities” but did not specifical ly define the activities to include hygiene and getting out of bed. These differences do not const itute an appreciable change in plaintiff’s general abil ity to lead her normal life.

Because our analysis must focus upon plaintiff’s general ability to lead her normal life, and because there is virtually no difference in plaintiff’s lif e after the accident from before the accident, plaintiff failed to show that there was a genuine iss ue of material fact on the threshold question of whether her general ability to lead her normal life was affected by any injuries allegedly sustained in the June 10, 2011 accident. Plaintiff t herefore is not legally entitled to
recover from the uninsured motor ist, and defendant insurers wer e entitled to summary disposition. I there fore would affirm.

/s/ Michael F. Gadola