STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH ZICHICHI, UNPUBLISHED
April 12, 2018
Plaintiff-Appellant
v No. 337043
Wayne Circuit Court
EVERETT MULL, MICHAEL LEE DIGNA, and LC No. 15-014054-NI
SHARON WAMBLE,
Defendants-Appellees.
Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting defendants Everett Mull, Michael Lee
Digna, and Sharon Wamble’s motion for summary disposition in this no-fault action. MCR
2.116(C)(10). We affirm.
Plaintiff argues that the trial court erred in granting defendants’ motion for summary
disposition by concluding that there was no genuine issue of material fact regarding plaintiff’s
injuries. The trial court found that plaintiff did not suffer a serious impairment of body function.
Plaintiff states that given the nature of his injuries, there is, at the very least, a genuine issue of
material fact as to whether he meets the threshold of a serious impairment of body function under
the no-fault act.
A trial court’s ruling on a summary disposition motion is reviewed de novo. Johnson v
Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Defendants brought their motion for
summary disposition under MCR 2.116(C)(10). “A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. In evaluating a motion for summary disposition brought
under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and
other evidence submitted by the parties, MCR 2.116(G)(5)[.]” Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). “Where the proffered evidence fails to establish a genuine
issue regarding any material fact, the moving party is entitled to judgment as a matter of law.”
Id. A genuine issue of material fact exists when, after viewing the evidence in a light most
favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW
Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
The Michigan legislature has limited tort liability in automobile accidents by enacting
MCL 500.3101 et seq., colloquially referred to as the no-fault act. McCormick v Carrier, 487
-1-
Mich 180, 189; 795 NW2d 517 (2010). 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). The statute defines 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).
The leading case interpreting the serious impairment of body function requirement is
McCormick. In McCormick the Supreme Court set out a three-part test to determine if a plaintiff
has sustained the requisite injury; according to the test, a plaintiff must suffer “(1) an objectively
manifested impairment (2) of an important body function that (3) affects the person’s general
ability to lead his or her normal life.” McCormick, 487 Mich at 195. According to the
McCormick Court, for an impairment to be objectively manifested, it must be “evidenced by
actual symptoms or conditions that someone other than the injured person would observe or
perceive as impairing a body function.” Id. at 196. The second prong, an important body
function, is subjective, taking into account whether the function is important to the plaintiff as an
individual. Id. at 199. The third prong, affects the person’s general ability to lead his or her
normal life, is a subjective inquiry as to whether the impairment has “an influence on some of the
person’s capacity to live in his or her normal manner of living.” Id. at 202. A plaintiff’s ability
to lead his or her normal life need not be destroyed, but only affected, id., and there is no
“express temporal requirement as to how long an impairment must last in order to have an effect
on the person’s general ability to live his or her normal life,” Id. at 203 (quotation marks
omitted).
The no-fault act permits a trial court to rule as a matter of law regarding whether a
plaintiff has suffered a serious impairment of body function “if the court finds either of the
following:”
(i) There is no factual dispute concerning the nature and extent of the person’s
injuries.
(ii) There is a factual dispute concerning the nature and extent of the person’s
injuries, but the dispute is not material to the determination whether the person
has suffered a serious impairment of body function . . . . [MCL 500.3135(2)(a).]
There is a genuine issue of material fact “when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which reasonable minds might differ.” Bahri v
IDS Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014) (quotation marks and
citation omitted).
The trial court ruled that there was no genuine issue of material fact that plaintiff did not
satisfy the third prong of the McCormick test—whether plaintiff’s injuries affected his general
ability to lead his normal life. Because, as detailed below, there was no genuine issue of material
fact on this issue, the trial court properly decided as a matter of law whether plaintiff suffered a
serious impairment of body function.
-2-
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.
The crux of this case is the temporal requirement, or, more accurately, lack thereof.
Although as noted above, MCL 500.3135(1) contains no express temporal requirement,
McCormick, 487 Mich at 203, measured by plaintiff’s current disabilities, he does not meet the
threshold of having a serious impairment of body function. 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. Even if those symptoms were considered objectively
manifested impairments, plaintiff does not meet the second or third prongs of the McCormick
test: plaintiff’s temporary disabilities were neither subjectively important body functions nor did
they affect plaintiff’s general ability to lead his normal life. Plaintiff still engages in his
preaccident employment, fishing, and yard work, with no limitations. And, as noted, resumed
work within six weeks of the accident and without limitations within three months of the
accident. In fact, like the trial court, we can find no objective evidence that plaintiff’s general
ability to lead his normal life has been affected.
Affirmed. No costs to either side. MCR 7.219(A).
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
-3-