Mccormick v. Carrier, No. 136738

CourtSupreme Court of Michigan
Writing for the CourtCAVANAGH, J.Weaver, J. (concurring).Hathaway, J. (concurring).Markman, J. (dissenting).
PartiesRODNEY MCCORMICK, Plaintiff-Appellant, v LARRY CARRIER, Defendant, and ALLIED AUTOMOTIVE GROUP, INC., indemnitor of GENERAL MOTORS CORPORATION,Defendant-Appellee.
Decision Date31 July 2010
Docket NumberNo. 136738

RODNEY MCCORMICK, Plaintiff-Appellant,

No. 136738

Supreme Court

FILED JULY 31, 2010



The issue in this case is the proper interpretation of the "serious impairment of body function" threshold for non-economic tort liability under MCL 500.3135. We hold that Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), was wrongly decided because it departed from the plain language of MCL 500.3135, and is therefore overruled.

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We further hold that, in this case, as a matter of law, plaintiff suffered a serious impairment of a body function. Accordingly, we reverse and remand the case to the trial court for proceedings consistent with this opinion.


This case arises out of an injury that plaintiff, Rodney McCormick, suffered while working as a medium truck loader at a General Motors Corporation (GM) plant.1 Plaintiffs job mainly consisted of assisting in the loading of trucks, which required climbing up and around trucks and trailers, standing, walking, and heavy lifting. He generally worked nine-to ten-hour shifts, six days a week.

On January 17, 2005, a coworker backed a truck into plaintiff, knocking him over, and then drove over plaintiffs left ankle. Plaintiff was immediately taken to the hospital, and x-rays showed a fracture of his left medial malleolus.2 Plaintiff was released from the hospital that day, and two days later metal hardware was surgically inserted into his ankle to stabilize plaintiffs bone fragments. Plaintiff was restricted from weight-bearing activities for one month after the surgery and then underwent multiple months of physical therapy. The metal hardware was removed in a second surgery on October 21, 2005.

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At defendant's request, plaintiff underwent a medical evaluation with Dr. Paul Drouillard in November 2005. He indicated that plaintiff could return to work but was restricted from prolonged standing or walking. On January 12, 2006, the specialist who performed plaintiff's surgeries cleared him to return to work without restrictions. The specialist's report noted that plaintiff had an "excellent range of motion," and an x-ray showed "solid healing with on [sic] degenerative joint disease of his ankle."

Beginning on January 16, 2006, plaintiff returned to work as a medium truck loader for several days, but he had difficulty walking, climbing, and crouching because of continuing ankle pain. He requested that his job duties be restricted to driving, but defendant directed him to cease work.

Defendant required plaintiff to undergo a functional capacity evaluation (FCE) in March 2006. The FCE determined that plaintiff was unable to perform the range of tasks his job required, including stooping, crouching, climbing, sustained standing, and heavy lifting. This was due to ankle and shoulder pain, 3 a moderate limp, and difficulty bearing weight on his left ankle. The report stated that plaintiffs range of motion in his left ankle was not within normal limits and that difficulty climbing and lifting weights had been reported and observed.

In May 2006, Dr. Drouillard examined plaintiff again and reported that plaintiff could return to work. Dr. Drouillard's report stated that plaintiff complained of ankle and

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foot pain, but the doctor found "no objective abnormality to correspond with his subjective complaints." In June 2006, plaintiff also underwent a magnetic resonance imaging (MRI) test, which showed some postoperative scar and degenerative tissue formation around his left ankle. At plaintiff's request, another FCE was performed on August 1, 2006, which affirmed that plaintiff could return to work without restriction and was capable of performing the tasks required for his job. The report stated that plaintiff complained of "occasional aching" and tightness in his ankle, but it did not appear to be aggravated by activities such as prolonged standing or walking. It also noted that plaintiff's range of motion in his left ankle was still not within normal limits, although it had improved since the March 2006 FCE.

Plaintiff returned to work on August 16, 2006, 19 months after he suffered his injury. He volunteered to be assigned to a different job, and his pay was not reduced. He has been able to perform his new job since that time.

On March 24, 2006, plaintiff filed suit, seeking recovery for his injuries under MCL 500.3135. In his October 2006 deposition, plaintiff testified that at the time of the incident, he was a 49-year-old man and his normal life before the incident mostly consisted of working 60 hours a week as a medium-duty truck loader. He stated that he also was a "weekend golfer" and frequently fished in the spring and summer from a boat that he owns. He testified that he was fishing at pre-incident levels by the spring and

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summer of 2006, but he has only golfed once since he returned to work.4 He stated that he can drive and take care of his personal needs without assistance and that his relationship with his wife has not been affected. He stated that he has not sought medical treatment for his ankle since January 2006, when he was approved to return to work without restriction. He further testified that his life is "painful, but normal," although it is "limited," and he continues to experience ankle pain.

The trial court granted defendant's motion for summary disposition on the basis that plaintiff had recovered relatively well and could not meet the serious impairment threshold provided in MCL 500.3135(1). The Court of Appeals affirmed, with one judge dissenting. McCormick v Carrier, unpublished opinion per curiam of the Court of Appeals, issued March 25, 2008 (Docket No. 275888). The majority held that, under Kreiner, plaintiffs impairment did not affect his ability to lead his normal life because he is able to care for himself, fish and golf, and work at the same rate of pay. The dissent disagreed, arguing that two doctors had determined that the impairment would cause

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problems over plaintiff's entire life and his employer had determined that he could not perform his work duties, the main part of his "normal" life.

After initially denying leave to appeal, this Court granted plaintiff's motion for reconsideration, vacated its prior order, and granted the application for leave to appeal. McCormick v Carrier, 485 Mich 851 (2009).


This Court reviews a motion for summary disposition de novo. In re Smith Trust, 480 Mich 19, 23-24; 745 NW2d 754 (2008). The proper interpretation of a statute is a legal question that this Court also reviews de novo. Herman v Berrien Co, 481 Mich 352, 358; 750 NW2d 570 (2008).


The issue presented in this case is the proper interpretation of MCL 500.3135. We hold that Kreiner incorrectly interpreted MCL 500.3135 and is overruled because it is inconsistent with the statute's plain language and this opinion. Further, under the proper interpretation of the statute, plaintiff has demonstrated that, as a matter of law, he suffered a serious impairment of body function.


In 1973, the Michigan Legislature adopted the no-fault insurance act, MCL 500.3101 et seq. The act created a compulsory motor vehicle insurance program under which insureds may recover directly from their insurers, without regard to fault, for qualifying economic losses arising from motor vehicle incidents. See MCL 500.3101 and 500.3105. In exchange for ensuring certain and prompt recovery for economic loss, the

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act also limited tort liability. MCL 500.3135. See also DiFranco v Pickard, 427 Mich 32, 40-41; 398 NW2d 896 (1986). The act was designed to remedy problems with the traditional tort system as it relates to automobile accidents. These included that "[the contributory negligence liability scheme] denied benefits to a high percentage of motor vehicle accident victims, minor injuries were overcompensated, serious injuries were undercompensated, long payment delays were commonplace, the court system was overburdened, and those with low income and little education suffered discrimination." Shavers v Attorney General, 402 Mich 554, 579; 267 NW2d 72 (1978).

Under the act, tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle is limited to a list of enumerated circumstances. MCL 500.3135(3). The act creates threshold requirements in MCL 500.3135(1), which has remained unchanged in all key aspects since the act was adopted. That subsection currently provides that "[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."

The threshold requirement at issue in this case is whether plaintiff has suffered "serious impairment of body function." The act did not originally define this phrase. Accordingly, it initially fell to this Court to do so, and the result was a series of differing opinions. In Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), this Court held that whether the serious impairment threshold is met is a question of law for the court to...

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