DiFranco v. Pickard

• Decision Date: 10 February 1987
• Docket Number: Docket Nos. 74692,74867,75299 and 75811,75263
• Citation: 427 Mich. 32,398 N.W.2d 896
• Parties: Thomas DiFRANCO, Plaintiff-Appellant, v. Maurice H. PICKARD, Defendant-Appellee. Douglas BURK, Plaintiff-Appellant, v. David WARREN, Defendant-Appellee. Roderick Bruce PAUPORE, Plaintiff-Appellant, v. Betty A. ROUSE and Yvonne Johnson, Personal Representative of the Estate of Gerald D. Rouse, jointly and severally, Defendants-Appellees. Frederick KUCERA, Plaintiff-Appellant, v. Mark Richard NORTON, Defendant-Appellee. Harley ROUTLEY, Plaintiff-Appellant, v. Gregory Robert DAULT, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 896

398 N.W.2d 896

427 Mich. 32

Thomas DiFRANCO, Plaintiff-Appellant, v.Maurice H. PICKARD, Defendant-Appellee.

Douglas BURK, Plaintiff-Appellant, v.David WARREN, Defendant-Appellee.

Roderick Bruce PAUPORE, Plaintiff-Appellant, v.Betty A. ROUSE and Yvonne Johnson, Personal Representative

of the Estate of Gerald D. Rouse, jointly and

severally, Defendants-Appellees.

Frederick KUCERA, Plaintiff-Appellant, v.Mark Richard NORTON, Defendant-Appellee.

Harley ROUTLEY, Plaintiff-Appellant, v.Gregory Robert DAULT, Defendant-Appellee.

Docket Nos. 74692, 74867, 75263, 75299 and 75811.

Supreme Court of Michigan.

Argued Jan. 16, 1986.

Decided Dec. 23, 1986.

Rehearing Denied Feb. 10, 1987.

[427 Mich. 36] Robert C. Vandenbroucke, Berkley, for plaintiff-appellant, dIfranco.

[427 Mich. 37] Lee E. Halsey, Mount Clemens, for defendant-appellee, Pickard.

Eggenberger, Eggenberger, McKinney & Weber, P.C. by William D. Eggenberger, Detroit, for Amicus Curiae State Farm Mutual Insurance Co.

Philip C. Dean, East Lansing, for plaintiff-appellant, Burke.

Fraser Trebilcock Davis & Foster, P.C., Lansing, for defendant-appellee, Warren.

Clancey & Price, P.C. by Philip A. Clancey, Traverse City, for plaintiff-appellant, Paupore.

Bensinger, Combs & Cotant, P.C. by Richard G. Bensinger, Gaylord, for defendants-appellees, Rouse.

Clancey & Price, P.C. by Philip A. Clancey, Traverse City, for plaintiff-appellant, Kucera.

Read & Griffin by Douglas J. Read, Traverse City(Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh, Detroit, of counsel) for defendant-appellee, Norton.

Law Offices of Norman C. Halbower, P.C., Muskegon, James K. Oslund, for plaintiff-appellant, Routley.

Bensinger, Combs & Cotant, P.C. by Richard G. Bensinger, Gaylord, for defendant-appellee, Dault.

Michigan Trial Lawyers Association by Thomas H. Hay, Anderson, Hay & Wonch, P.C., Lansing, for amicus curiae.

CAVANAGH, Justice.

Section 3135(1) of Michigan's no-fault automobile insurance law ¹ permits a person injured in a motor vehicle accident to recover damages for noneconomic loss from a negligent owner or operator of a motor vehicle only if the person suffered death, serious impairment of body function, or permanent serious disfigurement:

"A person remains subject to tort liability 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 permanent serious disfigurement."M.C.L. Sec. 500.3135(1);M.S.A. Sec. 24.13135(1).

In each of these five cases, the plaintiff attempted to recover noneconomic damages by alleging that he had suffered a serious impairment of body function.Applying the rules articulated in Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22(1982), the Court of Appeals held in each case that the plaintiff had not incurred sufficiently serious injuries to meet the threshold requirements of Sec. 3135(1).

Determining whether a person sustained a serious impairment of body function is a multifaceted problem.Since Cassidy was decided, the Court of Appeals has published approximately forty opinions on the subject.Some of these opinions have reached conflicting legal and factual conclusions.Since Sec. 3135(1) limits noneconomic damages which are ordinarily recoverable in a tort cause of action, we must determine the parameters of those limitations with reference to the Legislature's intent, as expressed in the statutory language and legislative history.The conclusions we reach must then be articulated in a workable set of rules for the bench and bar.With these goals in mind, we have reviewed Sec. 3135(1), Cassidy, and the cases interpreting them, and hold as follows:

1) The question whether the plaintiff suffered a serious impairment of body function must be submitted to the trier of fact whenever the evidence would cause reasonable minds to differ as to the answer.This is true even where there is no material factual dispute as to the nature and extent of the plaintiff's injuries.

2) In deciding motions for, and reviewing orders granting or denying, summary disposition, directed verdict and judgment notwithstanding the verdict, the court must view the evidence in the light most favorable to the nonmoving party and determine:

a) whether a material factual dispute exists as to the nature and extent of the plaintiff's injuries, and

b) whether reasonable minds could differ regarding whether the plaintiff had sustained a serious impairment of body function.

If the threshold issue was properly submitted to the trier of fact, its findings generally should not be disturbed.

3) The Legislature did not intend to limit recovery of noneconomic damages to the catastrophically injured.The "serious impairment of body function" threshold is a significant, but not extraordinarily high, obstacle to recovering such damages.

4) The impairment need not be of the entire body function or of an important body function.Section 3135(1) bars recovery of noneconomic damages to those persons who suffered minor injuries, or injuries which did not seriously impair the ability of the body, in whole or in part, to function.

5) The "general ability to live a normal life" test will no longer be used to determine whether the plaintiff suffered a serious impairment of body function.

6) The "serious impairment of body function" threshold contains two inquiries:

a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

b) Was the impairment of body function serious?The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function.Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment.

7) In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.An impairment need not be permanent to be serious.

8) When the threshold question is submitted to the jury, it should be instructed as to the two-fold nature of the "serious impairment of body function" threshold, and the factors to be considered in determining seriousness.

9) Section 3135(1) and Cassidy require the plaintiff to prove that his noneconomic losses arose out of a medically identifiable injury which seriously impaired a body function.The interpretation of Cassidy 's "objectively manifested injury" requirement adopted in Williams v. Payne, 131 Mich.App. 403, 346 N.W.2d 564(1984), is rejected.

10) To the extent that the above holdings are new or inconsistent with Cassidy, our decision applies to the five cases before us as well as to: (1) currently pending appeals in which an issue concerning the proper interpretation of the statutory phrase "serious impairment of body function" has been raised, (2) trials in which a jury is instructed after the date of this decision, and (3)cases in which summary disposition is entered after the date of this decision.

I.HISTORY OFSec. 3135(1)

Approximately one-quarter of the states have enacted no-fault automobile insurance laws.²The basic feature of these acts is compulsory motor vehicle insurance, which permits the insured to recover benefits directly from his insurer, regardless of fault, for certain economic losses sustained as a result of a motor vehicle accident.³In return, the injured person's common-law right to recover damages from the negligent owner or operator of the motor vehicle in a tort action is limited.⁴No-fault laws were designed to remedy the shortcomings of the traditional tort recovery system--overcompensation of minor injuries, under-compensation of serious injuries, long payment delays, over-burdened court systems, and discrimination against those with low income and little education.Cassidy, 415 Mich. at 498-499, 330 N.W.2d 22;Shavers v. Attorney General, 402 Mich. 554, 578-579; 267 N.W.2d 72(1978), cert. den. sub nom.Allstate Ins. Co. v. Kelley, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303(1979).

One of the most controversial aspects of these laws are the limitations often placed on the injured person's right to recover damages for pain and suffering, mental anguish, inconvenience, and loss of consortium from the negligent owner or operator.Some states place no restrictions on the ability to recover damages for these noneconomic losses.⁵The remaining states, including Michigan, permit recovery only where the injuries sustained are sufficiently serious.⁶

The precursor of Michigan's no-fault act, S.B. 782, was introduced on June 2, 1971.⁷Section 35 would have abolished all tort liability for bodily injury and property damage, regardless of the injuries sustained, except under very limited circumstances.⁸A substitute bill was recommended by the Senate Committee on Commerce on May 30, 1972, ⁹ and adopted by the Senate.The new tort liability provision was substantially different than that proposed in the original bill.

Senator Faxon proposed several amendments to the provision limiting recovery of noneconomic damages to those who sustained certain injuries.He proposed, but later withdrew, an amendment which would have inserted after "death" the following threshold injuries:

"permanent serious impairment of body function, permanent serious disfigurement or medical bills in excess of $5000.00."¹⁰

Senator Faxon proposed two other amendments to the threshold requirements:

"permanent, major, or extensive disability of body function, permanent loss of mental competency, or medical bills in excess of $5000.00;"

"permanent serious disfigurement or an injury which is so extraordinarily severe as to render the legal remedy therefor under this statute inadequate."

Neither amendment was adopted.¹...