The Lifestyle Impact Requirement
In other sections of the Michigan Lawyers Resource Center, car accident lawyers have reviewed the first and second requirements of Michigan Car Accident Law. Below, they explain why the Lifestyle Impact Requirement – the third and final requirement of Michigan’s car accident injury law is causing the most problems for Michigan lawyers and injury victims. This is the phrase requiring that an injury suffered in a car accident affect a person’s general ability to lead his or her normal life. It is found under MCL 500.3135(5), which provides the statutory definition of a “serious impairment of body function.” Under Michigan law, a serious impairment of body function is defined as an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.
This last aspect of the Michigan car accident injury threshold requirement is also it’s most litigated and most controversial. It reflects and combines elements of two landmark rulings from the Michigan Supreme Court in Cassidy and DiFranco. It is not the objective normal lifestyle test adopted by Cassidy v. DiFranco , 415 Mich. 483, 330 N. W. 2d 22, 30 (1982) and the legislature refused to heed the warning to the Michigan Supreme Court in DiFranco v. Pickard , 427 Mich. 32, 398 N.W. 2d 896 (1986) not to adopt a purely subjective lifestyle test. Michigan lawyers handling or defending auto accident cases who rely exclusively upon appellate cases from either the Cassidy or DiFranco era are mistaken.
In Cassidy, the court adopted the normal lifestyle component of serious impairment of body function as an objective test, not a subjective test:
“We believe that the legislature [under the prior version of MCLA 500.3135] intended an objective standard that looks to the effect of an injury on the person’s general ability to live a normal life.”
The Court, of course, could not define what a normal life was, let alone an abnormal life after an automobile accident. Obviously, no expert could be called upon by either side to say whether a person injured in a car accident had a normal life or not based on some type of imaginary standard of what constituted a normal life. Thus, if a person was unable to engage in social and sporting activities, but continued working, many judges concluded that an objective normal lifestyle was not interfered with by the automobile accident. Conversely, if a person was unable to work, had to change jobs, but could still engage in certain social and recreational activities, a judge could still conclude that there was evidence of an ability to lead a normal life. Under either scenario, the old Michigan law in the Cassidy Era proved extremely difficult for people hurt in car accidents in Michigan to recover compensation for personal injury. Many Michigan personal injury lawyers stopped handling automobile accident cases as the majority of cases decided by the Michigan Court of Appeals after Cassidy denied compensation for threshold injuries based upon lack of objective interference with a person’s general ability to lead a normal life. No matter what the proofs showed, a judge could always rely upon the “normal life” test and conclude that whatever the disability or restrictions from a car accident were, the general ability of the person to lead an objective normal life remained intact.
A good example of the problems posed to automobile accident injury victims in the Cassidy era can be found in Wolkow v. Eubank , 139 Mich. App. 1, 360 N.W.2d 32 (1984), judgment vacated, 428 Mich. 877, 402 N. W.2d 476 (1987). In Wolkow, the Court of Appeals found that the plaintiff did not suffer an interference with a normal lifestyle. It was undisputed that she was hospitalized for three and a half months after his automobile accident. Mrs. Wolkow’s fractures interfered with her sleeping and use of her hands. She was basically unable to dress herself or shower and was precluded from driving a car for a period of over three months. The Court, nonetheless, felt that the only “significant restriction” on her normal activities after her auto accident was her doctor’s admonition not to work or drive. In effect, the inability to work or drive did not amount to an interference with the general ability to lead a normal lifestyle.
Where the plaintiff could not sit, run or jog, but nevertheless could drive a car and work, the court in Sherrell v. Bugaski , 148 Mich. App. 708, 711, 364 N.W. 2d 684 (1984), concluded that the injury did not cause a significant impact on the plaintiff’s ability to lead a normal life.
The objective normal person era proved devastating for car accident injury victims in Michigan. It was finally in a later decision called DiFranco that the Michigan Supreme Court rejected the Cassidy objective interference with lifestyle test, stating:
“[A] test which attempts to compare the plaintiff’s post-accident activities and abilities to a hypothetical person’s “normal lifestyle” is equally flawed. Very simply, there is no such thing as a normal life. Determining which activities are essential to living a normal life is an equally impossible task.” 398 N.W. 2d at 914.
The DiFranco court also rejected a subjective normal life test. The court noted that such a test was equally flawed, stating:
“A test which merely compares the activities which the plaintiff could perform before and after the accident could reward the malingerer or hypochondriac while penalizing the person who cannot afford to miss work or tries to function despite the pain.” 398 N.W.2d at 913.
Failing to heed this warning, the Michigan legislature went ahead and adopted a subjective lifestyle test with 1995 PA 222. By the wording of the statute, the test adopted by the legislature looks only to how the impairment affects the person’s ability to lead his or her normal life. Whether or not his or her lifestyle is normal makes no difference. Plaintiff’s lifestyle before the accident must be compared to the plaintiff’s lifestyle after the accident.
Michigan lawyers have argued that under the clear, unambiguous statutory wording, that if there is any effect on the person’s general ability to lead that pre-accident lifestyle, the plaintiff meets, as a matter of law, the third component of serious impairment of body function and can recover for injuries suffered in a car accident. The Michigan Supreme Court, in a sharply divided and bitter 4-3 decision in 2004, disagreed. Instead, the majority, in a decision called Kreiner v. Fischer, wrote that the Michigan Legislature had meant to adopt Cassidy, and the Cassidy-era case law, even if such intent is not found anywhere in the legislative history of the statute or the statutory wording itself. However, what the Court meant was that the intent of the legislature was to make it harder for people injured in car accidents to recover compensation for their injuries. The Court did not mean that it intended to adopt once again a normal, objective person test. This last distinction is crucial for Michigan lawyers handling automobile accident injury cases.
A good example for Michigan lawyers of this distinction between the older car accident injury cases in Michigan under Cassidy and the potential success of car accident injury cases after Kreiner was the decision of Franz v. Woods 145 Mich. App. 169, 377 N.W.2d 373 (1985). In Franz, the plaintiff testified that after her car accident her injury forced her to quit her job as a waitress and to give up certain social activities such as bowling. The court noted that that may have affected her lifestyle but not the objective normal lifestyle: “While plaintiff’s testimony indicates a significant change in her normal lifestyle – an athletic, outdoors one – we believe that she has a general ability to lead what can objectively be termed a normal life.” 377 N.W. 2d at 379. That was an important distinction, because such analysis as the one in Franz was no longer the law in Michigan after Kreiner. Michigan’s threshold injury statute mandates the court to consider the effect the impairment has on a plaintiff’s general ability to lead his or her normal life, but after the Court’s interpretation in Kreiner, the effect had to be significant.
Michigan’s threshold test, as adopted by the Michigan Legislature in 1995, did not require that an injury or an impairment from a car accident affect a plaintiff’s ability to lead a normal life “in a significant manner”. Nor did it require that the injury or impairment have a “significant impact” on plaintiff’s ability to lead a normal life. The legislative standard did not require a “significant restriction” of a plaintiff’s normal activities, nor that an injured person’s life be “significantly altered” after a car accident. The statutory threshold requires only that the body function impaired “affects the person’s general ability to lead his or her normal life.” Michigan’s car accident injury laws did not alter, significantly change, significantly disable, or significantly restrict, or significantly impact the person’s general ability to lead his or her normal life. The Michigan Legislature in no way characterized the type of effect required on someone after a car accident. This separate requirement of seriousness was one that was created and imposed on car accident injury cases by the Michigan Supreme Court. It was the reason why there had been such criticism of Michigan’s car accident threshold injury law and of the Michigan Supreme Court by lawyers and judges throughout the state after the Court’s decision in Kreiner.
Then, in 2010, car accident victims got the relief they had long-sought when the Michigan Supreme Court decided McCormick v. Carrier, which overruled Kreiner and its judge-made distortion of the threshold law’s requirements for recovery of noneconomic loss damages.
As to Kreiner, the McCormick justices announced:
“We hold that Kreiner v. Fischer… was wrongly decided because it departed from the plain language of MCL 500.3135, and is therefore overruled.… Because the Kreiner majority created ambiguity where there was none, and crafted a statutory interpretation that is, in effect, a judicially constructed house of cards, we hold that it incorrectly interpreted the third prong of MCL 500.3135(7). The Kreiner majority aggravated this error, and departed even more dramatically from the statutory text, by providing an extra-textual ‘nonexhaustive list of objective factors’ to be used to compare the plaintiff’s pre- and post-incident lifestyle.… Because the factors adopted by the Kreiner majority are not based in the statutory text, and this Court’s role is to apply the unambiguous statutory language, not improve it, we hold that the majority erred by adopting them.”
The justices in McCormick went on to restore the original and true meaning of the “serious impairment” statute by explaining exactly what the threshold law required victims to show to be entitled to pain and suffering compensation:
An objectively manifested impairment of an important body function has affected a person’s general ability lead his or her normal life if it has had “an influence on some of the person’s capacity to live in his or her normal [“pre-incident”] manner of living.”
“[A] person’s general ability to lead his or her normal life [must have] been affected, not destroyed.”
“[T]he statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on the ‘person’s general ability to live his or her normal life.’”