Cassidy v. McGovern

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-2507
• Citation: 86 Mich.App. 321,272 N.W.2d 644
• Parties: Leo T. CASSIDY and Ardith M. Cassidy, Plaintiffs-Appellants, v. Terrance McGOVERN, Peter H. Seaton, and Seaton Industries, Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees. 86 Mich.App. 321, 272 N.W.2d 644
• Court: Court of Appeal of Michigan — District of US

Page 644

272 N.W.2d 644

Leo T. CASSIDY and Ardith M. Cassidy Plaintiffs-Appellants, v. Terrance McGOVERN, Peter H. Seaton, and Seaton Industries Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees.

Docket No. 77-2507.

86 Mich.App. 321, 272 N.W.2d 644

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 324] John D. Hayes, Traverse City, for plaintiffs-appellants.

Gillett & Carpenter by Jack Carpenter, Petoskey, for defendants-appellees.

Before D. E. HOLBROOK, Jr., P. J., and BASHARA and MAHER, JJ.

PER CURIAM.

The concurrence/dissent adequately states the facts in this case and satisfactorily disposes of most of the issues facing us. We differ on two points, however. Plaintiffs in this case argue that the trial court erred in refusing to include in its instructions the holding of McKendrick v. Petrucci, 71 Mich.App. 200, 247 N.W.2d 349 (1976). As our brother does, we reject plaintiffs' argument basically because a "trial court does not err in refusing to charge as to a particular party's theory of another case". But in discussing McKendrick, we must not de-emphasize the language concerning "particular body function". While the language is not part of the holding of the case, it does have a significance which our brother seems to deny.

The choice of the words "particular body function" was not inadvertent: the McKendrick court interpreted the statute as not requiring impairment of the total body function, E. g., through a life-sustaining organ such as the heart or liver. The Court chose the word "particular" to suggest that impairment of one specific body function comes within the ambit of the statute. The very [86 MICHAPP 325] nature of the impairment at issue in McKendrick, tendonitis of the biceps tendon of plaintiff's right arm, implies that the Court was referring to a particular body function, not simply "body function". Although not the holding of the case, we believe it is one of its important implications and should not be obscured.

On a second issue we differ more fundamentally with our brother. Plaintiff argued that as a matter of law he satisfied the threshold requirement of the no-fault act for serious impairment of bodily function. He therefore moved for a directed verdict. In denying the motion, the trial judge stated:

"Mr. Hayes (plaintiffs' attorney), the McKendrick case defeats your argument. It is very clear in the McKendrick case that the Court has decided that the issue of serious impairment of body function is a fact question for the jury, and your motion is denied."

McKendrick does Not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder. In Vitale v. Danylak, 74 Mich.App. 615, 254 N.W.2d 593 (1977), this Court, consistent with McKendrick, allowed a trial judge to rule by summary judgment that plaintiff's injuries (a stiff neck) did not, as a matter of law, meet the standard of serious impairment of body function. The Vitale Court stated that no specific "permissible limits" had been drawn but that the Court was of the opinion that "if any class of cases could approach such limitation, the case at bar must be included in that class".

Just as there is a class of cases, of which Vitale is representative, in which the trial court can rule as a matter of law that plaintiff's injury is so minor that it fails to reach the threshold, so there [86 MICHAPP 326] is a class of cases in which, as a matter of law, the threshold of serious impairment is reached by the very nature of the injury, i. e., reasonable minds could not differ on the question of whether the threshold is met. In such a case, the trial judge should not give the issue to the jury for determination.

The trial judge in the instant case used an erroneous standard. He thought, because of a misinterpretation of McKendrick, that he was forced to send the issue to the jury. He did not perceive that McKendrick does not foreclose the possibility of the court determining as a matter of law that the threshold was reached. In denying plaintiffs' motion for a directed verdict, the judge here was unaware of this alternative.

We therefore remand to the trial court with instructions to the judge that McKendrick does not force him in all circumstances to send the issue of serious impairment to the jury. He should recognize that he may grant a directed verdict for plaintiffs, if the nature of Leo Cassidy's injury was such as to meet the threshold of serious impairment as a matter of law.

BASHARA, Judge, concurring in part, dissenting in part.

Plaintiffs appeal from a jury verdict of no cause for action. The suit arose from a claim, under the no-fault act, ¹ for damages sustained in an automobile collision. Plaintiff Leo Cassidy sustained complete breaks in both bones of his lower right leg, as well as other contusions and abrasions. Just prior to trial, defendants admitted [86 MICHAPP 327] fault, reserving for trial only the issues of threshold liability and damages. Plaintiffs raise several issues, which will be dealt with Seriatim.

I

Plaintiffs claim the jury was misled and misinformed about the threshold tort requirement of the no-fault act. They argue that defendants' argument and medical testimony showing that "serious impairment" requires permanency was erroneous. They also contend that the trial court's instructions to the jury were not couched in statutory language but instead employed the objectionable phrase "serious impairment of a body function and/or permanent serious disfigurement".

A review of the record reveals that when the jury returned for further instructions, the trial judge clarified any ambiguity as to whether serious impairment of body function requires permanency. He indicated that impairment need only be serious, whereas disfigurement must be permanent and serious.

In Krisher v. Duff, 331 Mich. 699, 711, 50 N.W.2d 332, 339 (1951), the Supreme Court stated:

" * * * it is not necessarily error to refuse to mention the existence of the statute provided the judge states the law as embodied in the statute."

See also Lepley v. Bryant, 336 Mich. 224, 57 N.W.2d 507 (1953).

Plaintiffs failed to object to defense counsel's allegedly improper argument, thereby precluding appellate review in the absence of a manifest injustice. In view of the trial court's clarification of the issues for the jury, I find no manifest injustice.

[86 MICHAPP 328] Finally, I would also reject plaintiffs' argument that the trial court erred in refusing to include in its instructions the holding of McKendrick v. Petrucci, 71 Mich.App. 200, 247 N.W.2d 349 (1976). The McKendrick Court concluded that the trial court erred in granting summary judgment on the grounds that plaintiff did not suffer serious impairment of body function by virtue of tendonitis in his right arm.

However, the "particular body function" language used in McKendrick does not appear to be the holding of the Court. The words were used only as an analogy relating to the existence of a material issue of fact relating to summary judgment. The Court clearly appeared to be distinguishing between impairment and Serious impairment.

A trial court does not err in refusing to charge as to a particular party's theory of another case. This is so especially where the theory may be ambiguous or inapplicable. Nowicki v. Suddeth, 7 Mich.App. 503, 152 N.W.2d 33 (1967).

While the trial court's initial instruction as to the threshold for serious impairment of body function may have been ambiguous, when the record is viewed as a whole, no reversible error was committed.

II

Plaintiffs contend the trial judge erred in refusing to advise the jury that defendants had limited immunity because they acquired and maintained proper security for payment. Further, that it was an abuse of discretion to instruct the jury to disregard any consideration of insurance.

[86 MICHAPP 329] M.C.L. § 500.3030; M.S.A. § 24.13030 ² does not appear to have been repealed by the no-fault act. That act provides that no reference be made to an insurer or to the question of carrying insurance during trial.

Even if the statute were considered to have been impliedly repealed by the no-fault act, mention of insurance coverage could be precluded based on the common law, Broitman v. Kohn, 16 Mich.App. 400, 168 N.W.2d 311 (1969). See also Heuss v. Rockwell Standard Corp., 495 F.2d 1207 (C.A. 6, 1974).

In the case at bar, the existence of defendants' liability insurance was totally irrelevant to the threshold damage issues. Consequently, the trial court's refusal to allow any reference thereto was not erroneous.

III

I likewise find no error in the trial court's refusal to allow photographic evidence of the vehicles involved subsequent to the collision. The evidence had little relevance, since serious damage to an automobile does not always mean serious damage to its occupants. Considering the danger of undue prejudice, the...