Update: McCormick v. Carrier is Michigan’s new auto accident threshold law.
In ruling that neither Plaintiffs Kreiner nor Straub had sustained threshold injuries from their car accidents, the Michigan Supreme Court characterizes the life impact element on pages 130 and 131 of the opinion as follows:
“In order to be able to maintain an action for noneconomic tort damages under the no-fault act, the ‘objectively manifested impairment of an important body function’ that the plaintiff has suffered must affect his ‘general ability’ to lead his normal life. Determining whether the impairment affects a plaintiff’s ‘general ability’ to lead his normal life requires considering whether the plaintiff is ‘generally able’ to lead his normal life. If he is generally able to do so, then his general ability to lead his normal life has not been affected by the impairment. …Accordingly, determining whether a plaintiff is ‘generally able’ to lead his normal life requires considering whether the plaintiff is, ‘for the most part’ able to lead his normal life. …to ‘lead’ one’s normal life contemplates more than a minor interruption in life. To ‘lead’ means, among other things, ‘to conduct or bring in a particular course.’ Given this meaning, the objectively manifested impairment of an important body function must affect the course of a person’s life. Accordingly, the effect of the impairment on the course of a plaintiff’s entire normal life must be considered. Although some aspects of a plaintiff’s entire normal life may be interrupted by the impairment, if, despite those impingements, 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 and he does not meet the ‘serious impairment of body function’ threshold.
The starting point in analyzing whether an impairment affects a person’s ‘general’ i.e., overall, ability to lead his normal life should be identifying how his life has been affected, by how much, and for how long. Specific activities should be examined with an understanding that not all activities have the same significance in a person’s overall life. Also, minor 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.”
There are several important lessons here for Michigan personal injury lawyers who handle car accidents.
The first lesson for Michigan attorneys is the reaffirmation of Cassidy v. McGovern, 415 Mich 483 (1982). In this respect, the Court stated: “as should be evident…the most uncomplicated reading of the 1995 amendment is that the legislature clearly rejected DiFranco in favor of Cassidy.”
Arguably, there is nothing “evident” about this return to Cassidy v. McGovern. The lifestyle component of Michigan’s car accident threshold law clearly combines elements from both Cassidy and DiFranco. The Michigan serious impairment of body function definition enacted by the 1995 legislative amendment is a subjective test – how the injury affects his or her normal life. Therefore, the 1995 legislative amendment should be an easier test because it rejected the Cassidy era “objective” lifestyle impact standard.
However, even if the majority in Kreiner is correct, and the 1995 legislative amendment did result in a “return to Cassidy,” this could not result in automobile accident victims being treated worse than during the Cassidy era cases. Yet this is exactly what has happened. Many of the car accident cases that have been lost in the trial and appellate courts since Kreiner had far more serious injuries then many of the Cassidy era cases that found serious impairment as a matter of law. Indeed, even Leo Cassidy only had a fractured leg.
The second lesson for Michigan attorneys concerns the course or trajectory language of the decision. Many of the criticisms of the Michigan Supreme Court after Kreiner have to do with the majority’s abandonment of its oft-stated goals of textualism and strict statutory construction. The course or trajectory language in Kreiner is troubling in this regard. First, this language does not appear anywhere in the legislative history or in the clear and unambiguous 1995 statutory definition of serious impairment of body function. The course or trajectory language is simply new judicial legislation created for the first time in Kreiner. Second, the course or trajectory language seems to directly contradict the Court’s finding, on page 135 of the opinion, that “an injury need not be permanent” in order to be serious. Finally, the terms themselves are contradictory. Many of the “Kreiner casualty” losses that decided the case on course or trajectory language used the terms synonymously and interchangeably. Yet they are distinct and different. The word “course” is a qualitative word dealing with the quality of a person’s life. The word “trajectory” deals with direction.
A similar criticism of judicial legislation by the Michigan Supreme Court majority is the requirement that restrictions be physician-imposed and not self-imposed. This is found in footnote 17, discussing the factor of residual impairment, where the Court wrote that (for the first time) a car accident victim may not establish this factor by testifying to his own self-imposed limitations on activity due to pain. Unfortunately, many trial courts and appellate panels misconstrued this footnote, addressing only one of the five “nonexhaustive factors” as a mandatory requirement in deciding serious impairment. Although the resultant confusion has been subsequently addressed by the outstanding case of McDanield v. Hemker 268 Mich App 269 (2005), a devastating number of very serious injury cases were lost because of the absence of doctor-imposed restrictions, even when the injuries from the motor vehicle accident were obvious and severe.
Attorneys handling car accident injury cases in Michigan must focus on duration and length of the injuries and treatment. As the Michigan Supreme Court noted in Kreiner, “the starting point in analyzing whether an impairment affects a person’s “general,” i.e. overall ability to lead his normal life should be identifying how his life has been affected, by how much, and for how long.”
Indeed, three of the five “nonexhaustive” factors that Kreiner says may be of assistance in deciding if an injury from an automobile accident is a serious impairment of body function are temporal factors.
The five factors, found on pages 133-134, are as follows:
Michigan personal injury lawyers should note that factors 1, 2, 3 and 5 deal with length of time for the injury, the impairment, or the subsequent medical treatment. It is clear, looking at the car accident cases that have been lost in Michigan since Kreiner, that the overwhelming majority of Kreiner casualties can be characterized as either relatively short (several months) periods of impairment, relatively short periods of medical treatment, or both.
This is an extremely important point for attorneys handling car accident cases in Michigan to understand: temporary periods of injury and relatively brief durations of impairment will likely result in an unsuccessful case for your client.
The “new” requirement after Kreiner that an injury or impairment from a car accident interrupt the “general ability” to lead a person’s normal life is also of concern for Michigan lawyers worried about the Court’s willingness to legislate from the bench. The word “general” does not appear anywhere in the plain, unambiguous statutory definition of serious impairment created by the Michigan legislature. A pure textualist reading of the lifestyle component of the 1995 amendment could arguably be said to mean that the lifestyle component part of the serious impairment definition should be in fact the easiest, not the hardest, part of the statutory definition to meet. The legislature chose to use the word “affect” in the definition of serious impairment instead of the word “effect.” The word affect should mean any affect, no matter how great on the person, is sufficient to show that that the injuries from the car accident had an affect on “his or her normal life.”
This is another area of concern for attorneys handling auto accident cases in Michigan: Different classes of people are treated differently by the new auto threshold law after Kreiner. As the focus of Michigan law is on impairment, and not on pain, after an automobile accident, it is clear that certain types of people are judged far more harshly than others under Michigan’s auto law. The elderly, the very young, the stay at home spouse, and those who are already disabled due to another injury or condition will have a much harder timing proving impairment than someone in the workplace.
This should be of concern not only for attorneys but for anyone concerned with public policy and equal protection for Michigan residents. Why should those who are most vulnerable – the elderly, the very young, the already disabled – have a harder time recovering for injuries from their car accident than someone who is healthy and working? Is this good public policy?
The focus for Michigan attorneys and car accident victims must always be on impairment, not on pain.
Mr. Kreiner is an excellent example of someone who suffered for over two years from pain after his automobile accident, but the Court rejected his injury case noting that he never missed a day from work and, despite two years of medical treatment and pain medication, the reduction of his work hours from 8 hours a day to 6 hours a day – a 25% reduction – was rejected as well. Notably, the Court also found such a 25% reduction in his work life was not as sufficient “impingement” on the “course or trajectory of the plaintiff’s normal life…that his “general ability to lead his normal life [was] affected.”
In Michigan, the degree of negligence of the person who causes the car accident does not matter. In many other states, the facts regarding a car accident, especially when they are extreme or outrageous, can lead to separate causes of action and protection for accident victims. In Michigan, there is no accountability for extreme or outrageous actions that can cause serious car accidents. Those who knowingly and intentionally drive without automobile insurance (requiring an accident victim to make an uninsured motorist claim with his or her own no fault insurance company), those who intentionally drive a defective car or truck, those who might even steal a vehicle and cause a serious accident or drive while significantly impaired by alcohol or drugs receive complete immunity and protection under Michigan’s threshold law of serious impairment.
A good example of this is the auto accident case of Gagne v Schulte (Docket No. 264788), where a drunk driver crossed the centerline and caused serious injury to a 21 year old young woman. Gail Gagne had to have major knee reconstruction surgery using cadaver bone and screws that were drilled into her bone. She had over seven months of physical therapy and rehabilitation. She lost her job and in the first few weeks after her car accident and again after her knee replacement surgery she required assistance just to get to a bathroom or bathtub. For weeks she could barely move, even with the aid of crutches. The majority opinion, focusing on the fact that she returned to work over a year after her accident and was able to walk again a year after her car accident ruled that the injury did not affect her overall life as a matter of law. She received nothing and the drunk driver who caused these injuries was never held accountable for his actions.
The Michigan auto accident threshold law punishes those who are most worthy of our respect and help – those who try, despite the pain of injury, to return to work and those who do not seek unnecessary medical treatment or no fault submittals: People who try to return to work weeks or months after an accident, even if it is part-time or with the assistance of strong pain medications, are judged far more harshly under Michigan’s impairment law than those who stay off work. Is this really the type of public policy that lawyers and judges in Michigan should be encouraging when handling car accident cases in Michigan? However, with four of the five nonexhaustive factors that trial courts are asked to consider in determining whether an auto accident victim has suffered a serious impairment of body function being temporal factors dealing with the length of the impairment, obviously the longer a car accident victim stays off work the easier it is to show that the individual has suffered a serious impairment of body function. Our law, as interpreted by the majority of the Michigan Supreme Court, penalizes those who, like Mr. Kreiner, try to continue working, even if it is with pain medications and in a reduced capacity, rather than encouraging this type of behavior.
The lawyer’s role in helping people who have suffered injury in car accidents in Michigan has become more important than ever before:
People who have suffered serious injury in a car accident depend upon their lawyer to help them more than ever before. Good personal injury attorneys not only get higher settlements for their clients in our age of computer programs that insurance companies use to help determine the value of an injury case, but a lawyer is absolutely essential in helping his or her client document the impairments that they have suffered after their car accident so they will survive defense motions for summary disposition.
The focus in Michigan after a serious car accident is no longer on the injury. The focus is on the resulting impairments that the accident victim has suffered.