The Case Of DiFranco v. Pickard
A summary of the Michigan Supreme Court’s second interpretation of the Serious Impairment of Body Function injury threshold law, 1986
The Michigan Supreme Court’s 1986 decision in DiFranco v. Pickard was the Court’s second interpretation of the “Serious Impairment of Body Function” threshold in four years.
The “Serious Impairment of Body Function” threshold, which is part of Michigan No-Fault’s Law, is the test that seriously injured auto accident victims must meet in order to be able to sue for noneconomic losses, otherwise known as “pain and suffering” damages. (MCL 500.3135)
IMPORTANT: To learn about the Michigan Supreme Court’s latest ruling concerning the interpretation of the “serious impairment of body function” threshold law (in its current form after passage of Public Act 222 of 1995), please visit our page on the McCormick v. Carrier decision from 2010.
‘Correcting’ Cassidy v. McGovern
Before setting out its own interpretation of the “serious impairment of body function” analysis, the DiFranco Court focused on correcting the Court’s 1982 Cassidy v. McGovern decision.
During the 10 year period following DiFranco v. McGovern, the injury threshold for car accident victims in the state essentially returned to the same general interpretation that had existed from when No-Fault was enacted in Michigan in 1973 until the Cassidy v. McGovern decision nine years later.
“The Cassidy Court judicially engrafted the requirement that the body function impaired must be important.”
General Ability To Live A Normal Life
“The ‘general ability to live a normal life’ test has been criticized by both plaintiffs’ and defendants’ attorneys.”
“Short shrift is usually given to the fact that the plaintiff is no longer able to engage in the recreational activities he previously enjoyed.”
“If the plaintiff eventually returned to work, even after an absence of several months, [courts applying the “general ability” test] usually concluded that there has been no significant interference with the plaintiff’s normal life. This is true even if permanent medical restrictions have been placed on plaintiff’s ability to lift or perform certain types of work. … Relief has generally been denied to plaintiffs who eventually regained their full range of motion, even if the initial limitation was significant.”
“The bottom line is that few plaintiffs have been given the opportunity to recover noneconomic damages since Cassidy [which announced the “general ability to live a normal life” test] was decided.”
“The ‘general ability to live a normal life’ test [from Cassidy] … has proved to be an almost insurmountable obstacle to recovering noneconomic damages. Apparently, only plaintiffs who are bedridden, cannot care for themselves or are unable to perform any type of work can satisfy this test. This was not the intent of the Legislature. Rather than clarifying what injuries are sufficiently serious to meet the ‘serious impairment of body function’ threshold, the test has obfuscated the true nature of the threshold inquiry. We therefore discard the test in favor of an objective approach which we believe is more consistent with the statutory language and legislative intent.”
Objectively Manifested Injuries
“The Cassidy Court was concerned that plaintiffs could recover noneconomic damages merely by testifying that they had suffered extreme pain following a motor vehicle accident. Recognizing that the Legislature only permitted recovery for injuries which seriously impair body functions, the Court required plaintiff to establish that they had suffered such an injury. In other words, plaintiffs must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering. Neither Cassidy nor [section] 3135(1) limits recovery of noneconomic damages to plaintiffs whose injuries can be seen or felt. … The ‘serious impairment of body function’ threshold requires the plaintiff to prove that his noneconomic losses arose out of a medically identifiable injury which seriously impaired a body function.”
“Generally, medical testimony will be needed to establish the existence, extent and permanency of the impairment. … A permanent impairment is more serious than a temporary impairment of like character. However, the fact that the plaintiff eventually makes a complete recovery should not negate the fact that he endured a serious impairment of body function for a significant period of time. … The type of treatment required to rectify the impairment may also be relevant … A comparison of the plaintiff’s abilities and activities before and after the accident may be relevant insofar as it establishes the existence, extent and duration of an impairment of body function.”
Judge Or Jury? Jury.
“We therefore modify that portion of Cassidy which held that the trial court must decide whether the plaintiff suffered a serious impairment of body function whenever there is no material factual dispute as to the nature and extent of the plaintiff’s injuries. If reasonable minds can differ as to whether the plaintiff suffered a serious impairment of body function, the issue must be submitted to the jury, even if the evidentiary facts are undisputed.”
Determining whether ‘Serious Impairment Of Body Function’ has occurred
Having corrected or clarified Cassidy where the justices felt it was necessary, the DiFranco Court laid out the two questions that jurors must answer in determined whether a “serious impairment of body function” has occurred:
- “What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?”
- “Was the impairment serious?”
To answer the “seriousness” inquiry, the Court said jurors must consider:
“[S]uch factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Moreover, jurors must be reminded that “[a]n impairment need not be permanent to be serious.”