Opinion
No. 138260.
December 1, 2010.
Court of Appeals No. 280214.
Summary Disposition.
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the judgments of the Court of Appeals and the Midland Circuit Court, and we remand this case to the trial court for reconsideration in light of McCormick v Carrier, 487 Mich 180 (2010).
I reluctantly concur in this Court's order remanding this case for reconsideration in light of this Court's recent decision in McCormick v Carrier, 487 Mich 180 (2010). Although I joined and continue to subscribe to Justice MARKMAN'S dissenting opinion in that case, McCormick now controls when a person may recover in tort for noneconomic loss under the no fault act. The McCormick dissent astutely noted that
[b]y nullifying the legislative compromise that was struck when the no-fault act was adopted — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance — the Court's decision today will restore a legal environment in which each of these hazards reappears and threatens the continued fiscal soundness of our no-fault system. [ Id. at 286-287 (MARKMAN, J., dissenting).]
The factual scenario presented in this case certainly brings to life these concerns and thus illustrates what is so troubling with the virtually standardless positions articulated in McCormick.
In this case, prior to the most current accident for which plaintiff is seeking noneconomic damages (which occurred in 2005), plaintiff had been involved in 10 prior accidents in the past 15 years, and those accidents occurred after he suffered a closed head injury at work rendering him disabled since 1979. As a result, plaintiff had serious medical injuries and ailments that rendered him seriously impaired for quite some time before the present accident. The trial court specifically found that the medical records made clear that previous events caused the ailments from which he suffered, and thus plaintiffs general ability to lead his normal life was not affected by the accident in question here. Because this determination is a person-and fact-specific inquiry, courts must recognize that plaintiffs pre-accident lifestyle was sedentary and his activities were highly restricted; this did not change after the 2005 accident. Thus, there is no causation between the 2005 accident and plaintiffs impairments because he was already seriously impaired prior to this accident as a result of many other prior accidents, as even one of plaintiffs own physicians conceded. Plaintiffs inability to show causation does not change even on remand for consideration in light of McCormick.
Nevertheless, because McCormick now governs the legal analysis that must be employed when addressing these issues, I feel compelled to allow the trial court to address this question anew. The majority's decision in McCormick to strip MCL 500.3135 of any meaningful limitation by removing the statutory limitations imposed by the Legislature produces a situation of seemingly unlimited liability that will require courts to wrestle with the question of what constitutes a "serious impairment of body function" without meaningful and defined guidance from their state's senior Court.
CORRIGAN and MARKMAN, JJ., joined the statement of YOUNG, J.