Michigan Supreme Court 

# Order
Lansing, Michigan
April 25, 2008 Clifford W. Taylor, Chief Justice
132385 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly
DOUGLAS D. JONES, Plaintiff-Appellee, Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 132385 COA: 268929 Wexford CC: 05-018785-NI KATHLEEN P. OLSON and TODD R. OLSON, Defendants-Appellants.

________________ _______________ __________/

On December 5, 2007, the Court heard oral argument on the application for leave to appeal the September 21, 2006 judgment of the Court of Appeals. On order of the Court, the application is ag ain considered. MCR 7.302(G)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the judgment of the Wexford Circuit Court gr anting the defendants’ motion for summary disposition. The circuit court properly found that the plaintiff was gen erally able to lead his normal life in spite of his injuries. Kreiner v Fischer , 471 Mich 109 (2004). The plaintiff’s injuries were substantia lly similar to those considered in Kreiner ’s companion

case, Straub v Collette

. Id

.

C AVANAGH , J., dissents and states as follows:

Because I continue to believe that Kreiner v Fischer , 471 Mich 109 (2004), was wrongly decided, I join Justice Weaver’s dissenting statem ent attached to the majority’s order. I concur with her opinion that Kreiner is a prime example of the judiciary’s gavel being used as the legislative pe n. Therefore, I would also grant leave in this case, so as to overrule Kreiner

. However, recognizing that my objec tions to the legal analysis in Kreiner are yet to be shared by a majority of th is Court, I write additionally because, even under that opinion’s flawed logic, the plain tiff in this case, Jones, presents a valid claim. I must also note my disagreement with this Court’s recently ev idenced proclivity for reaching out to overturn this state’s lower cour ts, especially when they diligentl y and faithfully apply this________________ _________________________________ ___________

________________ _________________________________ ___________ 2

Court’s binding precedent—as the Co urt of Appeals did in this case. 1

APPLICATION OF KREINER

The majority opinion in Kreiner expressed several platit udes that seem to have been ignored in the majo rity’s application of Kreiner to this case. Th e majority order in this case reinstates the grant of defendant’s motion for summary dis position by the circuit court, which held that Jones’s injury does not meet the statutory threshold of a “serious impairment of [a] body function,” MCL 5 00.3135 (1), (7). The majority order simplistically states th e basis for its holding: Jones’s “i njuries were substantially similar to those considered in Kreiner ’s companion case, Straub v Collette .” Ante at 1. The order contains no further discussion or analys is supporting or explai ning its conclusion. Under a fair reading of Kreiner , the legal and factual assertions of this short analysis are unsupportable.

First, the order’s legal pr oposition seems to contradict Kreiner ’s own language. Simply comparing a previous plai ntiff’s injuries to a subsequent plaintiff’s injuries is not consistent with Kreiner ’s requirement of a case-by-case analysis, Kreiner, supra at 134:

[I]n order to determine whether one has suffered a “serious impairment of body function,” the to tality of the circum stances must be considered, and the ultimate question that must be answered is whether the impairment “affects the person’s general ab ility to conduct the course of his or her normal life.” 19

19 We agree with the dissent that the “serious impair ment of body function” inquiry must “proceed[] on a case-by-cas e basis because the statute requires inherently fact-specific an d circumstantial determinations.” . . . Whether an impairment that precludes a person fro m throwing a ninety -five miles-an

hour fastball is a “serious impairme nt of body functio n” may depend on whether the person is a professional baseball player or an accountant who likes to play catch with hi s son every once in a while.

The majority order here seems to ignore th e above footnote by holding that because Jones’s injuries are substantially similar to the plaintiff’s in Straub , Jones’s injuries are insufficient. Essentially, the order holds that if the injury suffered by the “accountant

1 Indeed, the Court of Appe als in this case expressly applied Kreiner . I do not accept that the Court of Appeals is so inept as to misconstrue Kreiner ’s thorough, 26 -page opinion such that peremptory reversal by a on e-paragraph order suffices . In short, if Kreiner is so easily misunderstood, its precepts must deserve revision or clearer articulation. Yet, the majority order offers no further guidance on how to apply it.3

who likes to play catch with his son every once in a while” is insufficient, then “the professional baseball player” who suffers the same injury is likewise precluded from recovering noneconomic damages. Id . This is incorrect becau se, even assuming that Jones’s injuries were identical to Straub’s, J ones is entitled to an individual case-by-case evaluation of his injuries as they relate to his normal life, assuming Jones and Straub have different normal lives. Any other hol ding makes the above passage from Kreiner meaningless. Accordingly, desp ite my continued objection to Kreiner , if that opinion must be applied by the lower courts, I wo uld not change its ho lding through peremptory order by presupposing that Jones’s and St raub’s normal lives were identically affected by their injuries.

Second, the order’s one-sentence analys is erroneously contends that Jones’s injuries “were substantially similar to” Straub’s. Ante at 1. This is patently incorrect.

As described in Kreiner , Straub

injured three fingers on his nondominant hand when his motorcycle collided with an automob ile on September 19, 1999. He suffered a broken bone in his little finger and injured te ndons in his ring a nd middle fingers. Straub underwent outpatient surgery on September 23, 1999, to repair the tendons. No medical treatment was re quired for the broken bone. He wore a cast for about one month following surgery to assist the healing of the tendons. He also took prescription pain medica tion for about two weeks following the surgery and comple ted a physical therapy program.

About two months following the su rgery, Straub’s doctor noted that Straub’s injuries were healing nicely. Around the same time, Straub returned to work . . . , initially worki ng [part time], but ret urning to full

time work about three w eeks later, on December 14, 1999. . . . [H]e testified that until late December 1999 , he had difficulty doing household chores, such as washing dishes, doing yard work, and making property repairs. He was also unable to operat e his archery shop du ring the hunting season in the fall of 1999. Operati ng his shop required him to repair bows, make arrows, and process deer meat. In mid-January 2 000, however, he was able to resume playing bass gu itar in a band th at performed on weekends. By the time of Straub’s deposition, he coul d perform all the activities in which he had engaged befo re the accident, although he was still unable to completely straighten his middl e finger. He was also still unable to completely close his left hand, which decreased his grip strength. [ Kreiner

, supra at 122-123.]

Jones’s injuries are demonstrably differen t from Straub’s. Th ey lasted longer,4

were qualitatively different, and were physically different. 2

In August 2003, Jones was injured in a car accident th at was caused by defendant, Olson. After the accident, Jones was taken to a hospital when he comp lained of neck and back pain, among several oth er less-severe injuries. He was released from the hospital after 9 to 10 hours. Eventua lly, Jones was diagnosed with having fractured vertebra in his neck (at C-7), for which he was fitted with a “C-collar” for two months. Also, MRI scans revealed disc bulges in his neck at C6-7 and C5-6 levels. The neck and back injuries were caused by him hitting his head on the window pylon in his car.

Jones continued seeing a neurologist through January 2004 for treatment of his neck and back injuries. As of November 2003, he was complaining of persistent pain in his neck with radiating numbne ss into his shoulders and arm s. By January 2004, he reported continued neck and back pain with decreased rotation and move ment of both, but denied radiating numbness. From Janu ary 2004 to February 2004, he underwent physical therapy, with good res ults. From the accident until February 12, 2004, he had not been medically released to return to work, which entailed pouring and setting up cement walls. On February 12 , he was released to restart work for only three hours a day for two days a week. This lim ited schedule was increased to full time within two to four weeks after the initia l work restart date (approxi mately early April 2004).

During the entire six months Jones was off work, he was una ble to do several activities that he normally did in his pre-accident life. 3 Those activities included hunting, snowmobiling, playing softball, doing yard work, and taking long walks with his girlfriend (which he commonly did four or five nights a week). Also, during the first two months after the accident, Jones was unable to be intimate with his girlfriend, dress himself, feed himself, drive a car, or take his son to sc hool. Since early or mid-March 2004, when he regained full-tim e work status, Jones has re sumed all pre-a ccident work activities and pre-accident no rmal life activities.

A review of these facts demonstrates that Jones’s injury is different from Straub’s. In sum, Straub broke his little finger and injured two ot hers, which caused him to be unable to work and do home maintenance for slightly ov er two months. Whereas, Jones broke his neck and strained hi s back, which rendered him al most completely dependent on his family for two months and unable to work or enjoy recreational activities for a total of six months. The only thing remotel y similar, much less “substantially similar,”

2 While I agree with Justic e Weaver’s recitation of the facts regarding Jones’s injuries, they bear reiterating to note their differences from Straub’s injuries.

3 Despite discussions of whether Jones’s current employer had work fo r him during this entire 6-month period, the fact remains that Jones was indisputably, medically unable to perform his profession for any employer during the entire period.5

regarding Straub’s and Jones’s injuries is th at they were both caused by a car accident. Other than that, they are factua lly distinguishable, which is of great legal import in Kreiner ’s case-by-case analysis.

Finally, if the two cases encompassed in Kreiner are usable by wa y of comparison, it is unclear why Straub’s injuries are applicab le here, while Kreine r’s are not. Moreover, the order does not explain whether only St raub’s injuries can be used in such a comparative analysis. I would not leave the lower courts with such little guidance. Nonetheless, assuming that there is some ba sis for only comparing J ones’s injuries with Straub’s, Jones’s injury meets Kreiner ’s threshold test.

Therefore, while retaining my continued disagreement with Kreiner , I would not disturb the Court of Appeals holding that Jone s’s claim meets the stat utory threshold of a “serious impairment of [a] body functio n,” as defined by the majority in Kreiner and the editors of Random House Webster’s College Dictionary (1991). Kreiner

, supra at 130.

I dissent.

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

W EAVER , J., dissents and states as follows:

Every law-abiding car owner in Michigan who has obedie ntly, as required by law, purchased no-fault automobile insurance with the expectation of be ing able to recover damages for serious impairment of bodily f unction in the unfortunate event of serious injury should know about this case.

By importing the concept of permanency of in jury into MCL 50 0.3135—a concept that is nowhere referenced in the text of the statute—the ma jority of four (Chief Justice Taylor, and Justices Corrigan, Young, and Markman), in Kreiner v Fischer , 471 Mich 109 (2004), actively and judicially legislated a permanency and temporal requirement to recover noneconomic damages in au tomobile accident cases. The Kreiner interpretation of MCL 500.3135 is an unrestrained misuse and abuse of the power of interpretation masquerading as an exercise in follo wing the Legislature’s intent.

I dissent from the majority of four’s reversal of the judgment of the Court of Appeals in this case because the majo rity’s analysis a nd application of Kreiner v Fischer continues the misinterpretation of MCL 5 00.3135. Alth ough the Court of Appeals reached the right result, I wo uld grant leave to appeal to correct the majority’s misinterpretation of MCL 500.3135 in Kreiner.

I. Facts of Jones v Olson6

On August 1, 2003, the plaintiff, Doug las Jones, was west bound on M-115 when the defendant, Kathleen Olson, pulled out directly in front of the plaintiff’s vehicle. The defendant’s car hit the front right side of th e plaintiff’s car. The plaintiff sustained injuries and complained of head and neck pain. The pl aintiff was taken to Mercy Hospital after the accident. Doctors diagnosed the plainti ff with a fractured vertebrae in his neck and fitted him with a C-collar. The plaintiff was released after 9 to 10 hours and was advised to consult a neurologist.

The plaintiff continued to complain of persistent neck and shoulder pain and numbness in his shoulders and arms. A magnetic resonance imaging report of the plaintiff’s spine showed disc bu lges at the C6-7 and C5-6 le vels. The plai ntiff continued to see his neurologist and underwent physical therapy sessions through February 2004. In March 2004, the pl aintiff returned to work full-tim e where he helped pour and set cement walls.

The plaintiff testified that during the months that he was unable to work, he was also unable to hunt, go snow mobiling, play softball, do y ard work, or take long walks with his girlfriend—activities he enjoyed before the accident. Fu rther, the plaintiff stated that for the first few months after the acci dent, he had difficulty dressing and feeding himself. He also required the help of his mother, grandmother, and girlfriend to prepare his son for school in th e mornings. Plaintiff testified that he was able to return to work and resume all normal activities in March 2004.

The defendant refused to pa y the plaintiff noneconomic damages. The plaintiff filed suit for damages with the Wexford Circuit Court. The defendant moved for summary disposition, asserting th at the plaintiff had failed to establish a genuine issue of material fact regarding wheth er he suffered a serious impairme nt of bodily function. The circuit court granted the defen dant’s motion for summary di sposition, and the plaintiff appealed. The Court of Ap peals reversed the circuit cour t and remanded the case for trial. Unpublished opinion p er curium, issued September 21, 2006 (Docket No. 268929).

The majority of four now reverses the Cour t of Appeals judgment by order, stating that the plaintiff’s injuries in this case are substantially simi lar to the inju ries considered in Kreiner’ s companion case, Straub v Collette.

With all due respect, I disagree with the majority’s interpreta tion and a pplication of MCL 500.3135 in this case, just as I did in Kreiner when joining Justice Cavanagh’s dissent

. 471 Mich at 139.

II. MCL 500.3135 and Kreiner v Fischer

MCL 500.3135 states in pertinent part:7

(1) A person remains subject to tort liability for none conomic loss caused by his or her ownership, ma intenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.

* * * (7) As used in this section, “serious impairment of body function” means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.

In Kreiner v Fischer the majority in correctly interpreted MCL 500.3135 and created a test for determining when a person injured in an automobile accident can recover noneconomic damages. The major ity outlined a seemingly reasonable three-part
test:

1. Determine that there is no factua l dispute concerning the nature and extent of the person’s injuries; or, if there is a factual dispute, that it is not material to the determina tion whether the person has suffered a serious impairment of body function. See Kreiner at 131, 132.

2. If a court can decide the issue as a matter of law, the court must next determine if an important bodily f unction of the plaintiff has been impaired. See Kreiner at 132. The injury must be objectively manifested. Id

. 3. If a court finds an objectively manifested impairment of an important bodily function, the c ourt must then determine whether the impairment affects the plaintiff’s general ability to lead his or her normal life. Id. A “multifaceted inquiry” into the plaintiff’s lifestyle before and after the acc ident will determ ine whether the plaintiff’s “general ability ” to lead his or her life has been affected. The majority’s interpretation an d application of MCL 500.3135 in Kreiner is flawed. The first two prongs in the majority’s judicially created test are reasonable and derive from the language of MCL 500.3135. However, the third prong of the test, the determination of whether some one’s “general ability” to lead his or her life has been affected, is flawed. The major ity of four interpreted the phrase “general ability” in MCL 500.3135 to mean that a plaintiff ca nnot recover noneconomic damages for serious impairment of bodily function unless the impairment affects his or her life for an undefined and extended period of time—a re quirement never mentioned in the text of MCL 500.3135.

The Kreiner majority invoked selective dictiona ry definitions to outline a test to determine when a person’s “gen eral ability” to lead his or her life is affected. The Kreiner majority stated:8

Random House Webster’s College Dictionary (1991) defines “general” as “considering or dealing with broad, un iversal, or important aspects.” “In general” is defined as “with respect to the entirety; as a whole.” Id. “Generally” is defined as “w ith respect to the larger p art; for the most part.” Id

. Webster’s New International Dictionary defines “general” as “the whole; the total; that whic h comprehends or relates to all, or the chief part; a general proposition, fact, principle, etc.;—opposed to particular; that is, opposed to special.” A ccordingly, determining whether a plaintiff is “generally able” to lead his normal life requires considering whether the plaintiff is, “for the most part” able to lead his normal life. [ Kreiner, supra

, 471 Mich at 130.] In reaching the conclusion that a plaintiff’s “general ability” to lead his or her life is affected only if he or she is unable to “for the most p art” lead a normal life, the Kreiner majority selectively chose one definition of “general” among the many definitions available. More importantly, the Kreiner majority exalted the chosen definition as the only possible definition to determine what “general ability” under MC L 500.3135 means; according to the Kreiner analysis, the Legislature coul d not have meant “general ability” to mean anything other than “for the most part.”

Such an interpretation is faulty and unreasonable. The Kreiner majority did not consider, nor did it discuss, other definitions of “general,” and the consequences of applying those definitions in interpre ting MCL 500.3135. For example, the American Heritage Dictionary (2004) defines “general,” among other things, as “not limited in scope, area, or application; Not limited to or dealing with one class of things; diversified.” Under this definition, MCL 50 0.3135 can be interpret ed to mean that a person’s “general ability” to lead his or her life is affected if any part of the life is affected , without limitations in scope, area, or ap plication. This interpretation is diametrically opposed to the Kreiner majority’s interpretation of “general ability,” and yet it derives from the same source: a dicti onary definition of th e word “general.”

The above exampl e illustrates the Kreiner majority’s error in using a selective dictionary definition as the be-all-and-end-all source for de termining what a particular word means within a statute. A dictionary is defined, among other things, as “a reference book containing an alphabetical list of wo rds, with informati on given for each word, usually including meanings, pronunci ation, and etymology; a glossary.” American Heritage Dictionary (2004). A dictionary is meant to be a reference , not an exhaustive source for all etymological information.

In the legal context, using a dictionary to unwaveringly det ermine the legislative intent behind a statute is nothing more than barely hidden judicial ac tivism. Instead of determining the true intent behind a statute, a majority of the Cour t can now simply agree upon a single dictionary definition, taken from among many dictionary definitions, as the9

controlling definition for the statute. Worse, given the expansive nature of dictionary definitions where all possible, sometimes cont radictory, definitions are listed, a majority can pick and choose a definitio n that is most appealing to the majority’s own point of view, even if a chosen definition defies common sense.

For all intents and purposes, the Kreiner majority held that un less a person “for the most part” can no longer live his or her life, he or she cannot recover noneconomic damages under MCL 500.3135. The only way a person can no longer “for the most part” live his or her life is if the “overall or broad ability” to “con duct the course of his life” is affected. While paying lip s ervice to the contrary, the Kreiner majority faction in essence held that a plaintiff cannot recover noneconomic damages for serious impairment of bodily function unless the impairment affects his or her life ad infinitum.

As Justice Cavanagh correctly stated in his dissent in Kreiner , “nothing in the plain text of MCL 500.3135(7) suggests that the Legislature intended temporal limitations or permanency be considered when making the ‘s erious impairment of body function’ determination.” Kreiner v Fischer

, supra at 149. By importing the concept of permanency of injury into MCL 500.3135—a concep t that is nowhere referenced in the statute—the Kreiner majority actively and judicially legislated an additional requirement for obtaining noneconomic damages in automobile accident cases.

III.

The majority’s brief order rel ying on the faulty analysis in Kreiner in this case merely states that the plainti ff’s injuries are “substantially si milar to those considered in Kreiner ’s companion case, Straub v Collette .” Ante at 1. Regardless of whether the injuries are the same in kind or different, the plaintiff’s ge neral ability to lead his life after the accident was affected. As noted by the Court of Appeals:

Plaintiff’s general ability to lead his normal life was put entirely on hold for the first two months after the accident, and returned only gradually over the following four mont hs. Plaintiff’s lifestyle before the injury was dramatically different from his lifesty le for the six months after the accident. Following the Kreiner Court’s dictate that an injury need not be permanent to constitute a serious impair ment, we hold that where, as here, an injury entirely disrupt s a person’s ability to lead his normal life, the fact that the person eventually recovers does not preclude rec overy for that injury. [ Jones v Olson

, supra , slip op at 2.] Additionally, it is irrelevant whether the facts of the pres ent case are similar to the facts in Straub v Collette , because the majority’s anal ysis of MCL 500.3135 in Kreiner is flawed and should be revisited. The Kreiner majority judicially created a new_______________________________________ __ 10

requirement for recovery of non economic damages that is not found in the text of the MCL 500.3135.

I dissent from the majority’s reversal of the judgment of the Court of Appeals in this case because I disagree with the majority’s anal ysis and application of Kreiner v Fischer . Although the Court of Ap peals correctly determined that the plaintiff’s general ability to conduct the course of his normal life has been affected as a result of his injuries, as required to recover noneconomic damages under MCL 500.3135, I would grant leave to appeal to reconsider the majority’s interpretation of MCL 500.3135 in Kreiner v Fischer

.

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

t0416 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.
April 25, 2008
Clerk