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The Serious Impairment Threshold: McCormick v Carrier overrules Kreiner v Fischer

What McCormick Changes

The new interpretation of MCL 500.3135(7) significantly lowers the threshold which must be reached by the plaintiff's hoping to overcome the general abolition of tort liability in third party No Fault cases. This will make it easier for people injured in auto accidents in Michigan to obtain non-economic damages from at fault drivers.

Trial courts will now be hard pressed to dismiss cases on summary disposition motions based on the threshold inquiry, paving the way for the filing of more suits now that the specter of early dismissal has been eliminated.

A Brief History of the Serious Impairment Threshold

The No Fault Act was enacted in 1973. In return for a lifetime of unlimited medical benefits to victims of motor vehicle accidents, three years of wage replacement (up to a statutory maximum) and household assistance payments (limited to $20 per day) - all without regard to fault in the accident - the Legislature abolished tort liability for non-economic damages. This included eliminating damages for pain and suffering and excess economic damages above and beyond the statutory limits on wage loss and household assistance, except in limited circumstances: where the victim suffered permanent serious disfigurement, death - or the root of all litigation difficulties since the enactment - serious impairment of body function. MCL 500.3135(1).

The McCormick Definition

McCormick holds, in effect, that any objective manifestation of any impairment to any "important" body function which has any influence on the day to day life of the plaintiff for any period of time suffices to reach the "threshold" and get a plaintiff to a jury.

Further, McCormick holds that "objectively manifested" does not mean that there must be medical evidence of an injury, but only that an impairment of some kind must merely be observable to someone other than the plaintiff. Taken to its logical conclusion, any plaintiff who limps, grimaces, restricts use of a limb or even a finger, groans or displays other pain behaviors which his or her friends and family can observe, arguably meets the "objectively manifested" element of the statute.

The McCormick court correctly notes that the statute uses the word "impairment", not "injury". The court then uses this observation to extend the Legislature's language beyond its intent. It is unlikely, for example, that there would be any impairment without some form of injury, whether it be physical or psychological.

The other significant change rendered by McCormick is that the impairment need only have "an influence on some of the person's capacity to live in his or her normal manner of living." McCormick slip op at p 20.

A fracture of the pinkie is objectively manifested because it can be seen on x-ray. A splinted pinkie causes, for example, a person to hold a steering wheel differently while not preventing driving, thus "influencing" the way that task is performed - a task which most people engage in daily. A broken pinkie would also cause a little disruption in say, buttoning buttons, much like a broken finger nail does when one is used to having long nails with which to manipulate buttons. Arguably, under the new threshold this is a serious impairment.

Nothing in the McCormick decision requires an analysis of the degree of the "influence" and "impairment" must have or the degree of importance a restrictive activity must have on a person's "capacity" to keep up his or her pre-accident lifestyle. Perhaps most significantly, however, the elimination of the need for objective medical evidence of impairment truly removes all limits from soft tissue cases and cases in which only psychological injury is alleged.

McCormick goes to great lengths to ensure "objective manifestation" does not mean "objective medical proof of injury."

Application to Pending Suits

The opinion is silent as to whether it will be applied only to cases filed after July 31, 2010 or retroactively to cases currently pending in the Court of Appeals and circuit courts. Generally, judicial decisions, as opposed to Legislature enactments, are given at least limited retrospective effect, meaning that they are applied to pending suits in which the issue has been raised and preserved and, more often than not, are given full retroactive effect, applying to all pending suits regardless of whether the issue has been preserved in them. Michigan Ed. Emp. Mut. Ins. Co v Morris, 460 Mich 180 (1999); 1 Mich. Pl. & Pr. 1:16 (2d ed.).

Likely the momentum of pro-plaintiff sentiment will cause courts to give McCormick full retroactive effect, and the current Supreme Court seems to wish to "do unto" its predecessors as it feels the former majority did unto it. However, if the new version of the court decides to further separate itself from the actions of the former majority, and apply the Golden Rule by not doing what its predecessor did, instead of employing "an eye for an eye" mentality, McCormick may only be given limited retroactive effect when that question is inevitably before it.

If you have any questions regarding Michigan No Fault or would like to discuss this article, please call an attorney at PALUDA, 248-740-0203, for a consultation.