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Zichichi v. Mull is worst example of ‘Judge made law,’ sows confusion for car accident attorneys and judges

April 17, 2018 by Steven M. Gursten

If judges want to just completely ignore the law, then we have no law. Zichichi case contradicts existing No Fault threshold case law and requirements from McCormick v. Carrier in favor of radical new ‘judge made law’

The “judge made law” in Zichichi v. Mull contradicts the No Fault threshold law and Michigan Supreme Court precedent

Rather than following and applying the law as they are required to do, one Wayne County trial judge and three appellate judges in Zichichi v. Mull decided to make up their own law. To do this, they created a completely new “judge made law” to ignore and disregard what the Michigan Supreme Court said in McCormick v. Carrier so they could throw out a serious car accident injury lawsuit involving multiple fractures, a surgery, screws implanted into bone, and a closed head injury.

Had the judges followed the law as they are required to do, the obvious conclusion is that Joseph Zichichi was either entitled to a ruling of summary disposition in his favor on serious impairment of body function as a matter of law, or, at minimum, that the nature and extent of Mr. Zichichi’s multiple fractures, surgery and screws and hardware implanted in his bone created a material question of fact that requires under our law to have a jury decide the matter.

That is what Michigan law requires.

But that was before Judge Susan Hubbard of the Wayne County Circuit Court decided to assume the role of judge, jury, and executioner in order to clear a case involving a completely innocent and seriously injured car accident victim from her court docket.

The law that Judge Susan Hubbard and subsequently three appellate court judges should have followed says that a car accident victim can sue for pain and suffering compensation, i.e., “noneconomic loss” damages, if he has suffered a “serious impairment of body function.” 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.” (MCL 500.3135(1), (3)(d) and (5))

What are the injuries that Zichichi v. Mull’s ‘judge made law’ are applied to?

Before we discuss how many cases Wayne County Judge Susan Hubbard and the appellate court had to overlook and/or disregard to reach this result, let’s first review Joseph Zichichi’s multiple injuries from his car accident.

As the Court of Appeals, itself, noted:

“The nature of plaintiff’s injuries was not in dispute. The medical records show that plaintiff suffered broken ribs, a comminuted fracture in his right clavicle, and a mild traumatic brain injury. Plaintiff was hospitalized for 2½ days. His injured ribs kept him from breathing deeply for a few days. Plaintiff had to undergo surgery in order to repair his clavicle, as a result of which he now has multiple screws in his bone. Because plaintiff’s work is manual labor, he was forced to take a six week leave of absence. When plaintiff did return to work, he was restricted in his activities until October 2015, approximately three months after the accident occurred, when he resumed normal work activities. Presently, plaintiff still complains of numbness on his right side.”

A lawyer or judge in Michigan, perhaps reflecting back to the ugly Gang of Four years in this state, might be forgiven for thinking these judges reached the conclusion they did in Zichichi by disregarding law that they are required to follow and instead decided to remake the law to reach an outcome they preferred. A lawyer who has sat through Judge Hubbard’s motion call in Wayne County on any given Friday morning might be excused in thinking that this trial judge just didn’t care at all about the law she is required to follow, and decided instead this was yet another opportunity to clear one more case from her docket to make a lowly car accident lawsuit go away.

To say this ruling offends the core principles of our justice system and our Constitution is not an overstatement. Every lawyer and every judge in Michigan should be shaken and very concerned by this ruling.

No matter which side of the political fence you sit on, no matter whether you are a lawyer who helps people injured in car accidents or a lawyer who works for the insurance companies defending these cases, no matter if you tend to be more liberal or more conservative in your judicial views, this was an impossible result to reach if these judges had followed binding Michigan law as they are required to do.

How ‘judge made law’ disregarded the auto No Fault threshold law and the Michigan Supreme Court’s ruling in McCormick v. Carrier

To get a full sense of what has happened here, let’s jump to the end of the Zichichi ruling.

The very last sentence (which is the culmination of the Court of Appeals painful series of rationalizations to support the trial court’s dismissal of Joseph Zichichi’s lawsuit) states as follows:

“[L]ike the trial court, we can find no objective evidence that plaintiff’s general ability to lead his normal life has been affected.”


There is no requirement to show “objective evidence.” Indeed, the Michigan Supreme Court stated in McCormick v. Carrier that the determination of whether a victim’s “normal life” has been affected involves precisely the opposite type analysis:

“[T]he Legislature indicated that this requires a subjective, person- and fact-specific inquiry that must be decided on a case-by-case basis. Determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.”

Ironically, setting that point aside, Zichichi does still have an abundance of “objective evidence” showing how Zichichi’s “normal life has been affected” by the impairments resulting from his crash-related injuries, but still it needs to be emphasized this sentence by the appellate court is clearly wrong.

The “no objective evidence” standard – which doesn’t exist in the real, legal world set forth in the Michigan No Fault law or the clear and unambiguous statutory definition of serious impairment of body function – is pure and simple “judge made law.”

And, like so much of the rest of the “judge made law” in Zichichi, it appears to have been made for the sole purpose of dismissing Mr. Zichichi’s injury lawsuit.

Temporal duration, timing and permanency in the new Zichichi v. Mull world of ‘judge made law’

In open defiance of both the No Fault threshold statute and the Michigan Supreme Court’s binding interpretation of that statute in McCormick v. Carrier, the Zichichi court appears to justify the lawsuit’s dismissal of the case on the grounds that Zichichi’s impairments are not permanent:

“The crux of this case is the temporal requirement, or, more accurately lack thereof. Although [the No Fault threshold law] contains no express temporal requirement, measured by plaintiff’s current disabilities, [Zichichi] does not meet the threshold of having a serious impairment of body function [which is what’s required to sue for pain and suffering compensation].”

That is also wrong. That sentence completely contradicts what the Michigan Supreme Court said in McCormick v. Carrier. McCormick specifically rejected the extra-judicial temporal requirements and the requirement that an injury affect the course and trajectory of a person’s life from Kreiner v. Fischer.

There is no temporal requirement that impairments from an injury must last a certain amount of time.

As the Supreme Court wrote in McCormick, the Legislature, in setting forth its “inherently fact- and circumstance-specific” serious impairment analysis “recognized that what is important to one is not important to all” such that “a brief impairment may be devastating whereas a near permanent impairment may have little effect.”

How ‘judge made law’ belittles the ‘objectively manifested impairments’ prong of Michigan’s auto law

Aside from being just plain wrong on the existing auto threshold law (again and again), the judges in Zichichi seem to have  found it necessary to also belittle these very serious injuries as well.

Sweeping aside the fractures, surgery, hardware and screws implanted in his bone, the judges write:

“A 1-inch area of numbness, mostly felt in the shower, feeling “weird,” and having to differently arrange one’s pillows hardly qualify as objectively manifested impairments.”

I guess one can only congratulate these judges on being able to ignore and completely disregard the objective and serious injuries of a car crash victim whose broken ribs prevented him from breathing normally and who required surgery for his shoulder fracture, who suffered a TBI, which the court also completely chose to ignore (see below) and who couldn’t return to work for months.

And these judges still got the law wrong.

If they’d applied McCormick, as the trial court and appellate court judges are required to do, they would’ve known the Supreme Court had expressly overruled the Netter v. Bowman approach they adopted where something is “objectively manifested” only if it can be objectively verified “by a qualified medical person either because [it] is visually apparent or because it is capable of detection through the use of medical testing.”

Of that earlier form of “judge made law” reflected by Netter and other Court of Appeals decisions, the Supreme Court in McCormick said:

“[T]he Court of Appeals decisions that have gone beyond the plain language of the statute and imposed an extra-textual ‘objectively manifested injury’ requirement, in clear contravention of Legislative intent [which required an “objectively manifested impairment”], are overruled to the extent that they are inconsistent with this opinion.”

There is an important reason why the Michigan Supreme Court wrote this in McCormick. There are countless horribly painful and disabling injuries, from tinnitus (often called the suicide injury) to traumatic headaches to complex regional pain syndrome and so many others that are not “visually apparent or because it is capable of detection through the use of medical testing.” This is what happens when judges who know very little about medicine make poorly reasoned and deeply-flawed judge-made law.

In fact, because the vast majority of very serious and even permanent traumatic brain injuries cannot be objectively verified by MRI or CT, the Michigan Legislature even went so far as to create a closed head injury exception for brain injury survivors from car accidents, giving them an “automatic” route to a jury so that a Wayne County Circuit Court judge could never dismiss a car accident lawsuit involving a brain injury, as notably, happened here.

The appellate court notes:

“The nature of plaintiff’s injuries was not in dispute. The medical records show that plaintiff suffered … a mild traumatic brain injury.”

This is astounding.

Even though the medical records show that Zichichi suffered a TBI – and the defense didn’t dispute that fact – the trial and appellate judges make nothing but a passing reference to this significant, outcome-determinative fact.

It’s hard not to wonder if the short-shrift given to the TBI issue was intentional or not. Giving the TBI the attention it deserved and warranted would’ve required the judges’ to not dismiss the case.


Because the No Fault Law’s “closed-head injury” exception for car accident victims would have made dismissal a legal impossibility.

Under the exception, a jury – not a judge – must decide whether a car crash victim has suffered a serious impairment of body function if a doctor “testifies under oath” that the victim may have “a serious neurological injury” resulting from a “closed-head injury.” (MCL 500.3135(2)(a)(ii))

What ‘judge made law’ says about ‘most people’ injured in car accidents? 

For any person still doubting that this was outcome-determinative extra-judicial reasoning, please note this very surprising sentence from these three judges on the Michigan Court of Appeals:

“While most people who suffer injuries in a car accident may not recover in a tort action, a person who has suffered a “serious impairment of body function, or permanent serious disfigurement” may still recover damages through a tort action. MCL 500.3135(1).”


What judicial appellate clerk, mega-overdosing on Federalist Society steroids, decided to come up with that pronouncement?  Apparently whoever wrote this decided it was also a convenient time to ignore the most sacred tenet of the Federalist Society – textualism – to write it.

Where in the world did “most people who suffer injuries in a car accident may not recover” even come from?

I’ve been practicing only auto accident litigation for nearly 25 years. I have spoken at countless legal seminars on the Michigan auto No Fault law for years. I’ve been qualified as an expert on the auto No Fault law by several courts, including in Wayne County, and testified as an expert to juries on what the law is and is not. Yet I’ve never seen this type of sweeping and overly-broad statement that “most people who suffer injuries in car accidents may not recover.” If this anti-textualist, judge-made pronouncement is adopted, it completely overturns the balancing act of Michigan’s legislative trade-off between first-party auto No- Fault benefits and third-party tort recovery on its head.

Nowhere in the short, simple, clearly worded statutory definition of serious impairment of body function does it say anything like this.

Nor can this be anywhere in the legislative history to the Michigan No Fault Act. The legislature intended to preclude clearly frivolous and de-minimus injuries when they created the trade-off in Michigan between generous first-party No Fault benefits and the creation of a tort threshold. As my friend and colleague Robert E. Logeman wrote in his treatise, “Michigan No-Fault Automobile Cases: Law and Practice” when discussing the legislative history of the No Fault Act:

The No Fault “system,” which is “designed to pay the economic losses of injured persons promptly, regardless of fault, while allowing plaintiffs to file a tort suit for serious personal injuries,” “would compensate … virtually all victims of automobile accidents.”

Indeed, the lawmakers who enacted No Fault never said that innocent and seriously injured people who suffer multiple fractures, undergo surgeries, and have hardware and screws implanted permanently in their body, who must take every breath in pain and who can’t even walk down stairs (I’ve broken ribs before, so this is from my own personal experience) or who miss months from work, are barred from receiving compensation for their injuries.

The only good thing about Zichichi v. Mull (and it’s definitely not the ‘judge made law’)

The one and only good thing that can be said about this horrible case is that it is an unpublished Court of Appeals opinion.

That means two important things: (1) No trial or appellate judge is legally required to follow the case because, as an unpublished opinion, it “is not precedentially binding under the rule of stare decisis”; (2) Defense lawyers cannot cite it because “[u]npublished opinions should not be cited for propositions of law for which there is published authority” and on the topic of the true and accurate rule of law pertaining to “serious impairment of body” there is a wealth of published and binding legal authority. (MCR 7.215(C)(1))

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