Kern v. Blethen-Coluni, Docket No. 210869.

• Decision Date: 22 June 2000
• Docket Number: Docket No. 210869.
• Citation: 612 N.W.2d 838,240 Mich. App. 333
• Parties: Denise Renee KERN, individually and as next friend for Matthew Scott Trusty, Plaintiffs-Appellants, v. John Lawrence BLETHEN-COLUNI, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

612 N.W.2d 838

240 Mich. App. 333

Denise Renee KERN, individually and as next friend for Matthew Scott Trusty, Plaintiffs-Appellants, v. John Lawrence BLETHEN-COLUNI, Defendant-Appellee.

Docket No. 210869.

Court of Appeals of Michigan.

Submitted February 9, 2000, at Detroit.

Decided March 24, 2000, at 9:15 a.m.

Released for Publication June 22, 2000.

Caputo Brosnan, P.C. (by Harold A. Perakis), Warren, for the plaintiffs.

Harvey Kruse, P.C. (by Francis H. Poretta and Denise L. Winiarski), Troy, for the defendant.

Before: METER, P.J., and RICHARD ALLEN GRIFFIN and OWENS, JJ.

RICHARD ALLEN GRIFFIN, J.

On May 18, 1996, an accident involving an automobile and a pedestrian occurred at a Royal Oak intersection. On that date, nine-year-old plaintiff Matthew Scott Trusty was attempting to cross the intersection with his bicycle when defendant John L. Blethen-Coluni, while operating his automobile, turned left into the intersection, striking and injuring the young pedestrian.

As a result of the collision, plaintiff sustained a displaced and somewhat comminuted and oblique fracture of his right femur. Plaintiff was hospitalized for six days (four in traction) and underwent surgery for the installation of an external fixator attached to the outside of his right femur by four pins drilled into the bone. Plaintiff wore the fixator for eleven weeks, during which time he was incapable of walking. During this eleven-week period, plaintiff was either carried, used a wheelchair, or "hobbled" on his other leg. Plaintiff missed three weeks of school because of his hospitalization and initial surgery. On August 5, 1995, plaintiff underwent a second surgery, during which the fixator device and four pins were removed. Thereafter, plaintiff gradually returned to walking and other normal activities of a nine-year-old boy.

I

Through his next friend, Denise R. Kern, plaintiff filed a complaint on July 26, 1996, seeking noneconomic damages for his alleged threshold injuries of serious impairment of body function and permanent serious disfigurement. By mistake, mutual to the parties and the court, the case was submitted to the jury regarding all issues including whether plaintiff sustained a threshold injury. This was an error of law because plaintiff's complaint was filed exactly 120 days after March 28, 1996, and therefore the 1995 amendments of the no-fault act (1995 PA 222) were operative. See M.C.L. § 500.3135(2); MSA 24.13135(2). In light of the absence of objection, we review for plain error. MRE 103(d). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). See also Wischmeyer v. Schanz, 449 Mich. 469, 483, 536 N.W.2d 760 (1995).

At trial, the jury received inconsistent jury instructions that set forth both SJI2d 36.01 (the repealed standards of DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 [1986]) and SJI2d 36.11 (the purported standards of 1995 PA 222). During its deliberations, the jury expressed confusion regarding the law it should apply in deciding whether plaintiff sustained a threshold injury. A handwritten note from the jury foreman to the trial judge states:

We are having a hard time qualifying #4 with respect to "serious impairment of a body function." Can we have a dictionary and/or some additional counseling on this issue? [Emphasis in original.]

Following the dictates of DiFranco, the trial court offered no additional guidance to the jury:

1) Dictionary— no.

2) You have received all of the court's instruction— please consider as a whole.

Sometime later, the jury rendered the following verdict:

Question No. 1: Was the defendant negligent?

Answer: Yes.

Question No. 2: Was the plaintiff injured?

Answer: Yes.

Question No. 3: Was the defendant's negligence a proximate cause of plaintiff's injury?

Answer: Yes.

Question No. 4: Did the plaintiff's injury result in serious impairment of a body function or permanent serious disfigurement?

Answer: No.

In his motion for a new trial, plaintiff's counsel first advised the trial court that 1995 PA 222 applied to this case and therefore the trial court should rule as a matter of law whether plaintiff's injuries exceeded the no-fault tort threshold. The trial court denied the motion, concluding

[the court] finds that the issue of whether plaintiff sustained a serious impairment of body function or a permanent serious disfigurement was properly submitted to the jury and furthermore that the jury appropriately reviewed and considered the evidence and determined that plaintiff's injuries did not meet the threshold of serious impairment or disfigurement. Therefore, this Court finds that the jury verdict was not against the great weight of the evidence or contrary to law and plaintiff's motion for a new trial must be denied.

Plaintiff now appeals. We reverse and remand. We hold that plaintiff's femur fracture is a serious impairment of body function as a matter of law. We remand for a new trial on the issue of plaintiff's damages. Additionally, because the appellate record is inadequate for our review de novo of plaintiff's claim of permanent serious disfigurement, we remand for a ruling by the trial court and a new trial on damages if the court finds threshold disfigurement.

II

By enacting 1995 PA 222, the Legislature amended our no-fault automobile insurance act in a number of important respects. Pertinent to this appeal, the Legislature overturned the Supreme Court's DiFranco decision by codifying the tort threshold injury standards of Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22 (1982), overruled by DiFranco, supra.

One of the major changes of the legislation was to make the determination of threshold injury (serious impairment of body function or permanent serious disfigurement) an issue of law rather than an issue of fact. Considerations of greater uniformity and predictability of the law were argued by the supporters of the legislation:

Putting the determination of whether the threshold has been met into the hands of the judge (as a matter of law) makes sense for several reasons.... It will produce more uniformity in decisions by allowing judges to construct [sic] the statute rather than juries, which are more likely to vary in attitude based on geography or even one jury to the next. Further, the phrase in question is not commonly used, so juries are not likely to have a clear sense of its meaning. [House Legislative Analysis, HB 4341, December 18, 1995, p. 3.]

The above legislative analysis¹ echoes the concerns articulated by the Cassidy Court:

We believe several considerations are instructive in determining whether the threshold requirement of "serious impairment of body function" is primarily a phrase presenting a fact question for the trier of fact, or a phrase requiring judicial definition as a matter of law. First, it is not a term commonly used, for which juries would have a clear sense of the intended meaning....

Second, and important especially in conjunction with the first factor, one of the important reasons behind the no-fault act was to reduce litigation in automobile accident cases. Considering that the phrase involved is unspecific and one concerning which reasonable minds can usually differ regarding specific applications, if the interpretation of the phrase is a matter to be left to the trier of fact, a trial would in most instances be required to determine whether the threshold requirements have been met....

Third, we cannot believe that the Legislature, when limiting the continued existence of traditional tort liability to certain specified exceptions, intended that the limits which they created would vary according to the specific jury impaneled or the specific part of the state in which a case was to be tried. Although the requirement of serious impairment of body function lacks specificity, uniformity in its application is to some extent attainable through statutory construction by the appellate courts. Unlike traditional tort litigation where differing views among differing juries are generally acceptable, the question whether tort immunity attaches is not a question which we believe the Legislature intended to leave as primarily a question for the trier of fact. [Cassidy, supra at 501-502, 330 N.W.2d 22.]

Before the no-fault act amendments, the Supreme Court held in DiFranco, supra at 38, 398 N.W.2d 896: "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." In changing the law in response to DiFranco, the Legislature returned the determination of threshold injury to the trial judge as it existed under Cassidy.

The Legislature's concern with the unpredictability of jury determinations regarding the no-fault tort threshold is aptly demonstrated in the present case. The jury's confusion regarding the phrase "serious impairment of body function" is documented in the jury's inquiry to the court asking for a dictionary "and some additional counseling on the issue." Among other instructions, the jury was advised that "the terms `serious,' `impairment,' and `body function' have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage." This instruction contained in SJI2d 36.01 is incorrect in the context of cases governed by 1995 PA 222. The legislative analysis for the bill not only repeats the Cassidy standards, it also emphasizes them:

That means making the determination of whether the threshold for a lawsuit has been met a question of law for a judge to decide and not for a jury. And it means that the term "serious impairment of body function" would once again refer to "an objectively manifested

...