Netter v. Bowman

• Decision Date: 19 September 2006
• Docket Number: Docket No. 268571.
• Citation: 272 Mich. App. 289,725 N.W.2d 353
• Parties: Amber NETTER, Plaintiff-Appellant, v. Sharon Rose BOWMAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

725 N.W.2d 353

272 Mich. App. 289

Amber NETTER, Plaintiff-Appellant, v.Sharon Rose BOWMAN, Defendant-Appellee.

Docket No. 268571.

Court of Appeals of Michigan.

Submitted August 8, 2006, at Detroit.

Decided September 19, 2006, at 9:10 a.m.

Released for Publication December 27, 2006.

Bernstein & Bernstein(by Thomas B. Calcatera and Harvey M. Howitt), Southfield, for the plaintiff.

Secrest Wardle(by Michael L. Updike), Farmington Hills, for the defendant.

Before: WHITBECK, C.J., and HOEKSTRA and WILDER, JJ.

WHITBECK, C.J.

In this no-fault action,¹plaintiffAmber Netter appeals as of right the circuit court's order granting defendantSharon Bowman summary disposition and dismissing the case.We affirm.We decide this appeal without oral argument.²

I.Basic Facts And Procedural History

On July 16, 2004, Amber Netter was a passenger in a stopped car when the car ahead, which Sharon Bowman was driving, backed up, causing a collision.The accident report described minimal damage to both vehicles and estimated that the impact speed was less than five miles per hour.At the time of the accident, Netter was a healthy 17-year-old, several months into an uncomplicated pregnancy with twins.Netter, complaining of burning or cramping pains, was hospitalized after the accident because she seemed susceptible to premature delivery.Netter gave birth to her twins several weeks prematurely.

Netter filed suit, asserting that the accident caused her to suffer various soft-tissue injuries and induced her premature delivery, leaving her suffering a serious impairment of body function.Bowman moved for summary disposition, arguing that Netter exhibited no objective sign of injury.The trial court granted the motion on the grounds that the premature birth itself engendered no actionable claim on Netter's part and that Netter otherwise failed to show that she had suffered an objectively manifested injury.

More specifically, with respect to the objective manifestation of injury, the trial court opined that there is a distinction between an injury that is medically measurable and an injury that is merely medically identifiable by a physician and has a physical basis.The trial court explained that Williams v. Payne established the test for objective manifestation as whether the injury was medically measurable.³However, that test was eradicated, the trial court explained, by DiFranco v. Pickard, which held that all that was required was that the injury be medically identifiable and have a physical basis.⁴The trial court opined that this change was "devised to negate the requirement of Objective Manifestation as ordinary people know it."But the trial court further explained that following DiFrancothe Legislature amended the no-fault act⁵ to explicitly confirm the objective manifestation requirement.That is, according to the trial court, the addition of the objective manifestation language into the statute was the Legislature's attempt to write the Williams interpretation — medically measurable — back into the legal framework.Thus, the trial court opined that the DiFranco holding was the wrong construction to apply to determine objective manifestation.

The trial court further related that, following the amendment of the no-fault act, the committee on standard civil jury instructions essentially ignored this legislative enactment and chose instead to continue to use the DiFranco definition for SJI2d 36.11.The trial court then went on to explain that the committee on model jury instructions (of which he was the chairperson) later voted to amend SJI2d 36.11 to remove the DiFranco language.The trial court acknowledged, however, that the change was never made.The trial court then explained that the change failed to go through in light of this Court's release of Jackson v. Nelson, which expressly approved the SJI2d 36.11 language employing the DiFranco"medically identifiable" standard.⁶But, the trial court opined, a reading of the Jackson opinion evidenced that this Courtactually intended to employ the traditional sense of objective manifestation — that is, the Williams medically measurable interpretation.According to the trial court, the Jackson Court"did not appreciate that this language, in 36.11, had been written to remove, to mitigate, to deflate the requirement of Objective Manifestation."

The trial court acknowledged that the accident had affected Netter's general ability to lead her normal life.But the trial court concluded that Netter's claim did not satisfy the objective manifestation requirement because it merely rose to the level of being medically identifiable, not medically measurable.Although Netter argued that her injury did satisfy the medically measurable test, given her doctor's diagnosis of her condition, the trial court declined to recognize her claims, noting that there was really nothing objective to support them.Netter now appeals.

II.Summary Disposition

A.Standard Of Review

We review a trial court's decision on a motion for summary disposition de novo as a question of law.⁷"In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial."⁸We also review de novo the proper interpretation of a statute.⁹

B. Kreiner Standards

This Court's assessment of a claim for noneconomic loss under the no-fault act is principally governed by the Michigan Supreme Court's opinion in Kreiner v. Fischer.¹⁰A 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."¹¹Serious impairment of body function "means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life."¹²Where there is no factual dispute concerning the nature and extent of the injuries, or where no such factual dispute is material to the question whether the person has suffered serious impairment of a body function, whether a person has suffered serious impairment of a body function is a question of law for the court.¹³Accordingly, "the issue . . . should be submitted to the jury only when the trial court determines that an `outcome-determinative genuine factual dispute' exists."¹⁴

If the trial court can decide the issue as a matter of law, it must determine if the plaintiff's injury has impaired an "important body function."¹⁵If the trial court finds that an important body function has been impaired, it must then determine if the impairment is objectively manifested.¹⁶"Subjective complaints that are not medically documented are insufficient."¹⁷If the impairment of an important body function is objectively manifested, the trial court must then determine if the impairment affects the plaintiff's general ability to lead his or her normal life.¹⁸"Although some aspects of a plaintiff's entire normal life may be interrupted by the impairment, if . . . the course or trajectory of the plaintiff's normal life has not been affected, then the plaintiff's `general ability' to lead his normal life has not been affected" for purposes of establishing a serious impairment.¹⁹

In determining whether the course of the plaintiff's normal life has been affected "the trial court must engage in an objective analysis regarding whether any difference between the plaintiff's pre-and post-accident lifestyle has actually affected the plaintiff's `general ability' to conduct the course of his life."<sup>20</sup>A de minimis effect on the plaintiff's life is insufficient under that analysis.<sup>21</sup>"[M]inor changes in how a person performs a specific activity may not change the fact that the person may still `generally' be able to perform that activity."²²Although not an exhaustive list, in evaluating whether the plaintiff's "general ability" to conduct the course of his or her normal life has been affected, a court may consider: "(a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery."²³The focus, however, is not on the plaintiff's subjective pain and suffering, but on injuries that actually affect the functioning of the body.²⁴For instance, "[s]elf-imposed restrictions," even if based on real pain, are not sufficient to establish residual impairment; rather, the restrictions must be "physician-imposed."²⁵

Beyond stating that "[s]ubjective complaints that are not medically documented are insufficient" to satisfy a showing of objective manifestation,²⁶Kreiner does not define what is sufficient to meet that requirement.Therefore, the pertinent question is whether a plaintiff's injuries must be merely diagnosable by the plaintiff's subjective symptoms, i.e., medically identifiable, or whether the injuries must be capable of being evidenced by objective testing, i.e., medically measurable.

C.Objective Manifestation

(1)Cassidy and Williams

In Cassidy v. McGovern, the Michigan Supreme Court answered the question: "[W]hat does serious impairment of body function mean?"²⁷After noting that, "[a]bsent specifics from the Legislature," the definition would have to develop on a case-by-case basis, the Court determined that "the phrase `serious impairment of body function' . . . demonstrates the legislative intent to predicate recovery for noneconomic loss on objectively manifested injuries."²⁸The Court explained that "[r]ecovery for pain and suffering is not predicated on serious pain and suffering, but on injuries that affect the functioning of the body."²⁹The Court then concluded that the plaintiff's injuries fell...