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How recreational activities matter under MI auto accident/injury threshold test

August 26, 2015 by Steven M. Gursten

Nbunh v. Pitkin says 0ne’s inability to do ‘normal’ recreational activities is critical to recover pain and suffering legal compensation, but evidence must be  presented

First question: Does an attorney need to present proper evidence of an auto accident victim’s “normal” recreational activities?

In almost all other states, the answer is “no.” But not in Michigan. Under Michigan’s unique auto accident law, a person injured in a motor vehicle accident must prove the injuries and impairments are sufficiently serious in order to recover pain and suffering legal compensation and excess economic loss for work loss and economic disability beyond the first three years of Michigan No Fault.

This leads to the next question: Can an auto accident victim’s inability to perform his “normal” recreational activities prove he’s entitled to pain and suffering compensation under Michigan law?

The answer appears to be “yes,” according to a recent Michigan Court of Appeals ruling. That is, if the legal evidence of the accident victim’s inability to do his or her “normal” recreational activities is timely and thoroughly presented to a judge.

This is a very important decision. I’ve felt for years that Michigan’s serious impairment law effectively discriminates against seniors, people who do not work outside the home, and children and others not in the workforce.  And as an attorney who’s represented auto accident victims for 20 years, I applaud this ruling for (hopefully) clarifying for Michigan trial court judges and attorneys that the inability to engage in one’s normal recreational activities can be just as important and significant as the inability to work.

The issue came up in the case of Nbunh v. Pitkin, where a car accident victim claimed he was entitled to pain and suffering compensation because he was “no longer able to enjoy” gardening, working out and playing soccer with his son.

Importantly, the Court of Appeals recognized the legitimacy of the Nbunh theory of legal recovery and his ability to meet the threshold test of serious impairment of body function:

  • Pain and suffering damages were collectible if a victim’s auto-accident-related injuries had “‘an influence on some of the [auto accident victim’s] capacity” to “engage in [his or her “normal”] recreational activities …”
  • “[W]e agree that a diminishment in [a victim’s] recreational activities could support a finding that the [victim’s] injury affected [his or her] ability to lead his [or her] daily life.”

However – and this is the lesson and the challenge for Michigan auto accident lawyers – the Court of Appeals rejected the Nbunh claim based on the failure to present the necessary legal proof to support his claim for pain and suffering compensation:

“Most importantly, there is no evidence in the record concerning what portion of [the victim’s] daily life was devoted to gardening, working out, and playing soccer with his son, how long these limitations persisted after the accident, or if they even continued to exist after his massage therapy. … [The victim] simply did not meet his burden to establish that there was a genuine issue of material fact regarding whether the injury affected his normal manner of living.”

Additionally, the Court of Appeals emphasized that the timeliness of presenting such evidence is of the utmost importance. In other words, if a car accident victim is only just getting around to presenting his or her evidence once her case has left the trial court and is on appeal in the Court of Appeals, then that’s too late:

“As an initial matter, we note that the parties have appended additional documentary evidence to their briefs on appeal concerning other recreational activities and limitations, and they discuss this evidence in their arguments. We decline to consider these other activities in our analysis. ‘This Court’s review is limited to the record established by the trial court, and a party may not expand the record on appeal.’ … The parties did not present [this evidence] to the trial court, and they are not part of the lower court record.”

‘Serious impairment of body function’

Under Michigan’s No Fault auto insurance law, an auto accident victim can sue for pain and suffering compensation (which is also known as “non-economic loss” damages) is the victim can show that he or she suffered a “serious impairment of body function.” (MCL 500.3135(1))

An 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.” MCL 500.3135(7).

An “objectively manifested impairment of an important body function” is deemed to have “affect[ed] [a] person’s general ability to 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 manner of living,’” which “may include the person’s ability to engage in recreational activities …”

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