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What’s the legal standard for pain and suffering?

October 29, 2015 by Steven M. Gursten

When judges don’t follow the law, auto accident victims are denied justice: Appellate court rules jury should hear auto accident victims’ pain and suffering lawsuit after trial judge ‘mistakenly focused’ on wrong legal standard

Jury Room

How can Michigan auto accident victims get justice if trial judges don’t – or won’t – follow the correct law and apply correct legal standards?

It’s simple. They can’t.

That’s why the Michigan Court of Appeals recent ruling in Hall, et al., v. Miko, et al., is so important for attorneys in this state who represent auto accident victims.

And as one of those Michigan attorneys, I’ve been vocal on the pages of this blog about my own frustrations with what I see as overly restrictive and limiting legal requirements that Michigan’s No Fault auto insurance laws place on accident victims. Many were enacted at the specific behest of the insurance industry and its lobbyists, passed into laws by Republican legislatures, and then signed into law by Republican governors specifically to frustrate those who’ve been hurt and who try to recover pain and suffering compensation from motor vehicle accidents.

But that’s politics today. In our world of Citizens United and unlimited money contributions to elected judges, this is sad, but expected. It will happen and it will continue to happen.

What I’ve been even more adamant about, however, is how some judges fail to properly apply the No Fault law’s correct requirements when deciding automobile accident threshold motions.

I should be clear that I know Macomb County Circuit Court Judge Edward A. Servitto Jr. I’ve tried a case in front of him, and I’ve appeared before him many times. He’s a judge who genuinely cares about getting things right. But sometimes, judges make the wrong call.

And I think it is clear that Judge Servitto made the wrong call in the victims’ case in Hall.

After concluding that the victims’ “general ability to lead their normal lives had not been affected” by their accident-related injuries, Judge Servitto dismissed the victims’ lawsuit. The determinative factor for Judge Servitto was his conclusion that “there had been no real change to [the victims’] lifestyles following the accident.”

On appeal to the Michigan Court of Appeals, the appellate judges pulled no punches in explaining why they disagreed with and were reversing Judge Servitto’s decision:

“[T]he trial court appears to have mistakenly focused broadly on whether there had been a general change to the overall activity level in plaintiffs’ normal lives when, instead, the correct inquiry is whether there has been an influence on the person’s capacity to live in her normal manner of living.”

*    *    *

“‘[T]he plain language of the statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected.’”
*    *    *

“Thus, plaintiffs were not required to establish that their normal lives had been completely destroyed, that they were totally unable to perform their normal activities, or that their manner of living was drastically altered.”

Accordingly, after having set the record straight about what the proper legal standard should have been for evaluating the Hall victims’ pain and suffering claims, the Court of Appeals sent the case back to the trial court where the victims could have a jury – rather than Judge Servitto – decide the fate of their lawsuit.

The ‘correct’ legal standard

Thankfully, in addition to highlighting the flaws in Judge Servitto’s application of the automobile accident threshold law in this state,  the Court of Appeals made important observations about what our threshold law requires of injured auto accident victims seeking pain and suffering compensation in court today.

Under Michigan’s No Fault auto insurance law, an auto accident victim can sue for pain and suffering compensation, i.e., “noneconomic loss” damages, only if he or she has suffered a “serious impairment of body function.” (MCL 500.3135(1)) The No Fault law defines a serious impairment of body function 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(5))

Critical to this “threshold” determination in most cases – and certainly in Hall – is whether an auto accident victim’s “general ability to lead his or her normal life” has been “affect[ed].” Or, in other words:

Whether a victim’s accident-related impairment had “an influence on some of the person’s capacity to live in his or her normal manner of living.”

The Court of Appeals in Hall identified the following points as essential – and proper – to resolving the issue of whether a victim’s “general ability” to “lead his or her normal life” has been “affect[ed]” by his or her accident-related impairments:

  • “To meet this standard, a person’s general ability to lead his or her normal life must be ‘affected,’ but it need not be destroyed. … Consequently, a plaintiff need not necessarily show that the impairment caused the complete cessation of a preaccident activity or lifestyle element …”
  • “[C]ourts should … consider ‘whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected.’”
  • “‘[T]here is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected’ and there is no temporal requirement regarding how long an impairment must last.”
  • “Ultimately, whether a person’s ability to lead his or her normal manner of living has been affected must be judged by comparison of the plaintiff’s life before and after the incident. … This is a ‘subjective, person- and fact-specific inquiry’ that must be decided on a case-by-case basis, bearing in mind that ‘what is important to one is not important to all[.]’”

I’m hoping that the effect of Hall will be to enlighten more judges about the correct inquiry that must be made in motor vehicle accident cases. I also hope it will discourage judges from “mistakenly focus[ing]” on the wrong legal standard and in doing so, provide Michigan auto accident victims with the justice – and their days in court before a jury – that they so rightly deserve.

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