Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis,

J ustices 

# Order

October 26, 2010

141212

LISA A. CHASE, Plaintiff,

and

JEFFREY M. CHASE, Plaintiff-Appellee,

v SC: 141212 COA: 289680 Macomb CC: 2 007-003979-NI SUSAN B. POMILIA and ALYSSA K. POMILIA Defendants-Appellants,

and

GEORGE M. DEMAR and CARL F. DEFILIPPO III, Defendants-Appellees.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the May 18, 2010 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the question pr esented should be reviewed by this Court prior to the completion of the proceedings or dered by the Court of Appeals.

C ORRIGAN , J. ( concurring ).

I concur in the order denying leave because the conclusion of the Court of Appeals majority—that plaintiff’s injuries were suffi cient to satisfy the tort threshold in MCL 500.3135(7)—likely would not constitute clear error under this Court’s subsequent opinion in McCormick v Carrier, 487 Mich ___ (2010). But I reiterate my disagreement

with McCormick for the reasons expressed by Justice M ARKMAN ’s dissent in that case, which I joined. Further, I agr ee with the trial court and the Court of Appeals dissent that plaintiff’s injuries here clearly do not satis fy the plain language of MCL 500.3135(7),

which I think was corr ectly interpreted in Kreiner v Fischer , 471 Mich 109 (2004).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.

_______________________________________ __ Clerk October 26, 2010

d1018 2

The automobile no-fau lt act permits a person injured in an automobile accident to sue in tort only if the injury caused by the accident constitu tes a “serious impairment of body function,” which means “an objectively manifested impairment of an important body function that affects th e person’s general ability to liv e his or her normal life.” MCL 500.3135(7). Here plaintiff claimed that the accident aggravated preexisting back pain and depression. But, in the words of the dissenting Court of Appeals opinion:

The record in this case is full of undi sputed evidence that the trajectory of plaintiff’s normal life has not been aff ected by the automobile accident. As the trial court noted in its opinion, we ll before the accident in this case, plaintiff had been determined di sabled by the Social Security Administration. In his application fo r those benefits, which were largely based upon a psychological disability, plai ntiff indicated that he could not do virtually all the things he now claims he coul d not do because of the accident. For instance, for many years before the ac cident plaintiff had not worked, golfed, fished, boated, or even done many household chores. Indeed, he admittedly stay ed in his bedroom on an d off for many days, in large part because of his depression. His same life pattern continued after the accident, albeit with some more pain. [ Chase v Pomilia, unpublished opinion per curiam of the Court of Ap peals, issued May 18, 2010 (Docket No. 289680), dissenti ng opinion of Murray, J., p 2.]