Jackson v. Nelson

• Citation: 252 Mich. App. 643,654 N.W.2d 604
• Decision Date: 13 November 2002
• Docket Number: Docket No. 227759.
• Parties: Debra L. JACKSON, Plaintiff-Appellee, v. Robert B. NELSON, Defendant-Appellant, and Ali Blaine-Hassan Lomax, Krista L. Ditmar, and Sarah A. Hardy, Defendants.
• Court: Court of Appeal of Michigan (US)

654 N.W.2d 604

252 Mich. App. 643

Debra L. JACKSON, Plaintiff-Appellee, v. Robert B. NELSON, Defendant-Appellant, and Ali Blaine-Hassan Lomax, Krista L. Ditmar, and Sarah A. Hardy, Defendants.

Docket No. 227759.

Court of Appeals of Michigan.

Submitted May 8, 2002, at Grand Rapids.

Decided August 27, 2002, at 9:05 a.m.

Released for Publication November 13, 2002.

R. Kevin Thieme, Grand Rapids, for Debra L. Jackson.

Straub, Seaman & Allen, P.C. (by Carol J. Wilson and Joseph R. Enslen), Grandville, for Robert B. Nelson.

Before: WILDER, P.J., and BANDSTRA and HOEKSTRA, JJ.

HOEKSTRA, J.

Robert B. Nelson (hereafter defendant) appeals of right from a judgment entered in favor of plaintiff following a jury trial in this third-party no-fault insurance action arising from an automobile accident in June 1996. On appeal, defendant alleges that the trial court's instructions to the jury erroneously stated the law regarding the threshold issue whether plaintiff established "serious impairment of body function." We agree, and thus reverse and remand for a new trial.

In this action, plaintiff sought noneconomic damages under the no-fault act, M.C.L. § 500.3135(1). Pursuant to M.C.L. § 500.3135(1), "[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." Although defendant admitted negligence, he maintained that plaintiff suffered no threshold injury, and thus was entitled to no relief.

Before the close of evidence in the jury trial, both plaintiff and defendant submitted to the trial court requested jury instructions. Concerning the threshold determination regarding a serious impairment of a body function, both parties requested that the trial court give the standard instruction found in SJI2d 36.11. Rather than give that instruction to the jury, the trial court presented its own instruction, based on its interpretation of the no-fault act. The trial court instructed the jury, in relevant part, as follows:

Now, under our law, a serious impairment of a body function—and I'm going to walk you through each piece of this—means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life. There are lots of pieces there.

Serious impairment of a body function means, number one, an objectively manifested impairment, number two, of an important body function, number three, that affects the person's general ability to lead his or her normal life.

An impairment is simply some limitation, some diminution or some other adverse affect on an important body function.

An impairment is objectively manifested, which the law requires, if that impairment can be verified in some way besides the person who says they have the impairment telling you. It's not the injury which has to be objectively manifested; it's the impairment which has to be.

But we're not talking about it has to show up on an x-ray or CAT scan, subject to palpation or sensation by a doctor, although any one of those things will make it an objective manifestation. As long as somebody else can satisfy themselves that the impairment is real by looking, seeing, whether it's a wince on a person's face or a slowness in their gait, the inability to do something, simply beyond them telling them, then it can be said to be objectively manifested.

After the trial court finished instructing the jury, plaintiff's counsel indicated satisfaction with the instructions, but defendant's counsel raised an objection to the instruction pertaining to serious impairment. Defendant's counsel asked the trial court to instruct the jury, consistent with SJI2d 36.11, that the impairment "must be a medically identifiable injury or condition that has a physical basis." The trial court responded:

Where in the statute does it say that? I know the instruction says it but not the statute, unless what's happened is everyone has jumped to the conclusion the statute reimplemented Cassidy, which it never did do at all, and is importing something in that the legislature isn't talking about. The impairment has to be objective, and you're saying the injury has to be so, too. If the legislature didn't say so, why should I?

* * *

I frankly have defined serious impairment just as it is in the statute, giving to its words just their ordinary, dictionary definitions. To the extent the standard jury instruction requires a medically identifiable injury, I believe it is in plain error because that is not what the statute requires.

The objective component here must be of the impairment. Maybe the legislature misspoke, but I don't believe so and, even if I did, it would be judicial error to tell the legislature that they didn't get it right. It is the impairment which must be objectively manifested, nothing more.

* * *

With regard to this medically identifiable injury, the standard jury instruction is, in my opinion, just plain wrong and, therefore, I'm not obligated to give it.

Consequently, the trial court gave no corrective instruction. After deliberations, the jury returned a verdict in plaintiff's favor, finding, among other things, that plaintiff had sustained an injury that meets the threshold for "serious impairment of body function" as defined in the jury instructions. Subsequently, the trial court entered judgment in plaintiff's favor.

Because defendant contested at trial whether plaintiff suffered an objectively manifested impairment, and argued, consistent with the standard instruction, that plaintiff's injuries did not meet the test because they were not medically identifiable, the trial court's decision regarding the instruction was significant to defendant. On appeal, defendant challenges the trial court's instruction as being an incorrect statement of the law and faults the trial court for significantly deviating from the standard instruction.¹

With respect to claims of instructional error, this Court recently has stated the standard of review:

On appeal, claims of instructional error are generally reviewed de novo. Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000), but see Hilgendorf v. St. John Hosp. & Medical Center Corp., 245 Mich.App. 670, 694-695, 630 N.W.2d 356 (2001). However, in a civil case, when requested by a party, a standard jury instruction must be given if it is applicable and accurately states the law. MCR 2.516(D)(2); Pontiac School Dist. v. Miller, Canfield, Paddock & Stone, 221 Mich.App. 602, 622, 563 N.W.2d 693 (1997). In that instance, the determination whether an instruction is accurate and applicable based on the characteristics of a case is in the sound discretion of the trial court and is reviewed for an abuse of discretion, Stevens v. Veenstra, 226 Mich.App. 441, 443, 573 N.W.2d 341 (1997); Williams v. Coleman, 194 Mich.App. 606, 623, 488 N.W.2d 464 (1992), while a determination based on a legal issue is a question of law reviewed de novo, Hilgendorf, supra at 694 695, 630 N.W.2d 356. [Ewing v. Detroit, 252 Mich.App. 149, 173, 651 N.W.2d 780 (2002).]

"Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury." Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). Reversal is not required unless the failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Case, supra; Ewing, supra.

In determining whether the trial court in the present case erred in crafting its own instruction concerning "serious impairment of body function" instead of providing the standard jury instruction on this point, we note that the phrase "serious impairment of body function" has a history of jurisprudential significance. Much of the development of this law was set forth in our Supreme Court's decision in DiFranco v. Pickard, 427 Mich. 32, 40-50, 398 N.W.2d 896 (1986), and need not be repeated at length here, but we begin, in brief, with that history as it relates to the issue presented in this case.

With our Legislature's adoption of no-fault automobile insurance, Michigan limited the right to recover noneconomic damages for a person injured as a result of a negligent owner or operator of a motor vehicle. To recover, the person must meet the threshold in M.C.L. § 500.3135(1), which depicts three different possibilities, including "serious impairment of body function." Originally, the no-fault act did not define that phrase, and thus the courts of this state endeavored to give structure and meaning to the concept. The two most noteworthy cases that addressed the issue are Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22 (1982), and DiFranco, supra.

The operative language of Cassidy most relevant to the issue presented here was the finding that a claim must be based on "objectively manifested injuries." Cassidy, supra at 505, 330 N.W.2d 22. In Williams v. Payne, 131 Mich.App. 403, 409, 346 N.W.2d 564 (1984), this Court interpreted the holding of Cassidy to mean that injuries based on subjective statements of pain experienced by the injured person that cannot be medically measured do not meet the threshold, holding the plaintiff to a "medically measurable" standard. However, our Supreme Court rejected that medical measurement test in DiFranco, supra at 40, 74, 398 N.W.2d 896. Instead, the DiFranco Court stated that cases based on subjective complaints or the symptoms of injury that are supported by an expert's diagnosis can support a claim of "serious impairment of body function." Id. at 74-75, 398 N.W.2d 896. According to the DiFranco Court, "[t]he `serious impairment of body function' threshold requires the plaintiff to prove that his noneconomic losses arose out of a medically identifiable injury which seriously impaired a...