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Michigan car accident victim with collapsed lung, fractured ribs will get to a jury trial on pain and suffering injury threshold

October 16, 2013 by Steven M. Gursten

The latest on Michigan’s serious impairment threshold:  Attorney explains how victims’ ability to live normal life must be affected but “not destroyed”

broken ribs

Kevin Wallace will get to have his day in court after all.  His attorney will be able to go to a jury on the issue of what is the appropriate amount of money for pain and suffering to compensate him after his car accident.

This makes Kevin Wallace notable for another reason.  His case becomes the most recent and most notable in determining exactly what Michigan’s changing  “serious impairment of body function” injury threshold will be.  The case was recently decided by the  Michigan Court of Appeals in  Wallace v. Nance-Bacan.

As result of the automobile collision caused by Ms. Nance-Bacan’s negligent driving, Mr. Wallace was hospitalized for seven days with a collapsed lung and fractured ribs, and he suffers from ongoing neck and back pain.

And the trial court threw out his case, saying his injuries under Michigan law were not “serious enough.”

Fortunately, in Wallace, the Michigan Court of Appeals reversed the trial judge’s order granting the Ms. Nance-Bacan’s attorney’s summary disposition motion to dismiss Mr. Wallace’s lawsuit:

“[D]efendant’s proofs did not demonstrate entitlement to summary disposition as a matter of law [on the issue of whether Mr. Wallace had suffered a “serious impairment of body function”] in light of” the Michigan Supreme Court’s ruling in McCormick v. Carrier.”

The Wallace appellate panel sent an important message.  Currently, many attorneys who specialize in automobile accident lawsuits in Michigan are uncertain as to which direction our auto threshold law will go.  Will it return to the more draconian Kreiner v. Fischer, or will our 5-2 Republican Michigan Supreme Court allow McCormick v. Carrier to remain good law as the last word on Michigan’s injury threshold to file an auto negligence lawsuit?

Wallace, at least for the time being, answers this question.  It comes at a time when many insurance company adjusters are wrongly  and misleadingly arguing that car accident victims will not recover pain and suffering compensation for a “serious impairment of body function,” unless the injuries are permanent.

By way of explanation, the Court of Appeals judges laid bare the speciousness of this  argument:

“[T]he impact [of an objectively manifested impairment of an important body function] on [an auto accident victim’s] ability to lead a normal life need only be affected, not destroyed.” [Emphasis added]

The latest on ‘Serious Impairment of Body Function

In McCormick v. Carrier, et al., decided on July 31, 2010, the Michigan Supreme Court overruled its previous 2004 ruling in Kreiner v. Fischer and, thereby, clarified the law  for determining whether an auto accident victim such as Mr. Wallace has met the Michigan No Fault Insurance Law’s “serious impairment of body function” threshold.  A car accident victim who does not meet this threshold may not recover  non-economic loss damages for his pain and suffering under Michigan law.

The McCormick court determined that the test for “serious impairment of body function,” which 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,” requires a plaintiff to show:

  1. “An objectively manifested impairment (observable or perceivable from actual symptoms or conditions)
  2. Of an important body function (a body function of value, significance, or consequence to the injured person) that …
  3. Affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).”

The underlined-bolded text was added by the Michigan Supreme Court in McCormick to clarify the non-bolded statutory language.

In Wallace, the Court of Appeals concluded that, based on Mr. Wallace’s deposition testimony “regarding the extent of his injuries and the impact on his life before and after the accident,” a jury at a trial should be given the opportunity to decide Mr. Wallace’s case, not the trial judge at a motion hearing filed by the defense attorney.

Significantly, the appellate judges also made an important observation about how the McCormick “serious impairment of body function” test should be applied in practice to people who are not employed at the time they are injured in a motor vehicle accident:

“Although plaintiff was not employed immediately before the accident, the impact on his ability to lead a normal life need only be affected, not destroyed.” [Emphasis added]

Related information:

Your third party pain and suffering lawsuit

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