Byer v. Smith
| Decision Date | 19 November 1984 |
| Docket Number | 11,71229,Nos. 10,Docket Nos. 71113,s. 10 |
| Parties | , 53 USLW 2289 Gerald Louis BYER, Plaintiff-Appellant, v. Thomas Arthur SMITH, Defendant-Appellee. Phillip INCARNATI, Plaintiff-Appellee and Cross-Appellant, v. Michael W. SAVAGE, Defendant-Appellant and Cross-Appellee. Calendar |
| Court | Michigan Supreme Court |
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiff-appelalnt, in No. 71113.
Glime, Daoust, Wilds, Rusing & Widlak by George S. Cabot, Mount Clemens, for defendant-appellee in No. 71113.
Dice, Sweeney, Sullivan, Feikens, Hurbis & Foster, P.C. by Jack E. Vandermale, Detroit, for plaintiff-appellee and cross-appellant in No. 71229.
Dickinson, Mourad, Brandt, Hanlon & Becker by Charles T. McCutcheon, Jr., Gromek, Bendure & Thomas by John A. Lydick, Detroit, for defendant-appellant and cross-appellee, in No. 71229.
The no-fault automobile liability act abolishes tort liability for noneconomic loss unless the physical injury is as severe as death, permanent serious disfigurement, or serious impairment of body function. 1 The question presented is whether a person who is seriously impaired in body function may recover damages for pain and suffering and other sequelae of the injury after the impairment is no longer serious. We hold that he may.
In both Byer and Incarnati, the juries were instructed in accordance with the decision of the Court of Appeals in Rusinek v. Schultz, Snyder & Steele Lumber Co., 98 Mich.App. 380, 296 N.W.2d 262 (1980), rev'd in part on other grounds, 411 Mich. 502, 309 N.W.2d 163 (1981), that a plaintiff was entitled to recover noneconomic damages only for the period in which he suffered a serious impairment of body function and that a plaintiff was not entitled to recover damages for a period beyond which he suffered such a serious impairment.
The question presented cannot arise where the injury suffered is death or permanent serious disfigurement. One may, however, recover from a serious impairment of body function.
The defendants point to the language of subsection 2(b) of Sec. 3135 2 which states that damages for noneconomic loss are recoverable only "as provided and limited in subsection (1)", stating the "serious impairment" threshold, and argue that the act thus provides in terms that "serious impairment" is a continuing limitation as well as a threshold. The plaintiffs respond that serious impairment is a hurdle not a floor.
Either construction of the act is consistent with the Legislature's purpose of barring any recovery whatsoever for noneconomic loss unless the injury is serious and of relieving the courts of the burden of litigation where the injury is not serious. Once the plaintiff establishes serious impairment, he may maintain an action for noneconomic loss. The tort measure of damages requires the factfinder to make a prediction regarding future damages. There can thus be only one lawsuit and only one assessment of damages. There is not a separate assessment of damages from time to time as in, say, a workers' compensation case based on the claimant's current state of recovery from his injuries. Refusing to allow recovery for sequelae after an injury has ceased to be serious would not reduce the number of lawsuits or the burden of litigation.
Nor do we find the linguistic argument persuasive. "Serious impairment of body function" functions as a limitation if construed as simply a threshold and as not intended to serve a larger purpose.
It is our understanding that the Legislature's purpose in establishing the criteria of death, permanent serious disfigurement, and serious impairment of body function, was simply to weed out from the tort system claims for injuries less severe than the criteria. The Legislature might have gone further, and the serious impairment language could indeed be construed to bring about such a result. But no other state has enacted a continuing limitation of the kind that the defendants contend the Michigan Legislature enacted.
Automobile no-fault acts generally provide that death and serious disfigurement are tort liability thresholds. Many of the acts contain medical expense thresholds. Many require some type of permanent injury. 3 The Uniform Motor Vehicle Accident Reparations Act provides for tort recovery where the noneconomic damages exceed a stated limitation, "but only if the accident causes death, significant permanent injury, serious permanent disfigurement, or more than 6 months of a complete inability of the injured person to work in an occupation". The commentary states that "[t]he thrust of this paragraph is to preserve tort actions for noneconomic detriment only for persons who have suffered very serious injury". 4 (Emphasis added.) The model act proposed by Professors Keeton and O'Connell in their influential work exempted no-fault insureds from tort liability unless either the pain and suffering exceeded $5,000 or other damages exceeded $10,000; the commentary states that "in cases of more severe injury, the tort action is preserved, but the recovery is reduced by these same amounts." 5 (Emphasis added.)
It thus appears that under both model acts, on which the Michigan act was based, the criteria for determining whether a tort action can be maintained seeks, as does the Michigan act, to preserve tort liability where the injury is serious or severe. Neither model act and no state act seeks to guard against recovery in tort for sequelae suffered after the injury ceases to be serious or severe.
Recognizing the force of the defendant's argument, we believe that while Michigan's unique "serious impairment of body function" terminology could, on that basis, be construed as a continuing limitation, it is more likely that the Legislature had no such larger purpose in mind and did not intend to enact a limitation on tort liability that functions other than, as under the model acts and other state acts, as a threshold.
In Incarnati, there is another issue. The trial judge allowed the plaintiff, on the third day of trial, to correct the transcript of a doctor's deposition to change the word "inconsistent" to "consistent". The Court of Appeals held that the error should have been discovered by the plaintiff by reviewing the transcript during the nearly two-year period that intervened between the taking of the deposition and the trial, and that plaintiff's failure to do so constituted a failure to exercise due diligence and, under the court rule, 6 "the transcript mistake should have been deemed waived." 7
We do not understand the court rule as barring a trial judge from allowing a transcript error to be corrected at anytime, even in those cases where in the exercise of "due diligence" the error might have been earlier discovered. Cf. ...
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