Order Michigan Supreme Court
Lansing, Michigan
January 13, 2006 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
127459 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
BRUCE BEHNKE, Justices
Plaintiff-Appellee,
v SC: 127459
COA: 248107
Chippewa CC: 01-005523-NI
AUTO OWNERS INSURANCE CO.,
Defendant-Appellant,
and
ESTATE OF KAREN MCLEAN,
Defendant.
_________________________________________/
On December 14, 2005, the Court heard oral argument on the application for leave
to appeal the September 16, 2004 judgment of the Court of Appeals. On order of the
Court, the application is again considered. MCR 7.302(G)(1). In lieu of granting leave
to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the
judgment of the Chippewa Circuit Court for the reasons stated by Court of Appeals Judge
Griffin in Part III of his dissent:
III. General Ability to Lead His Normal Life
Regarding the third prong, the Kreiner [v Fischer, 471 Mich 109
(2004)] Court offered the following guidance:
Determining whether the impairment affects a plaintiff’s “general
ability” to lead his normal life requires considering whether the
plaintiff is “generally able” to lead his normal life. If he is generally
able to do so, then his general ability to lead his normal life has not
been affected by the impairment. [Kreiner, supra, slip op, p 24;
emphasis added.]
In the present case, the trial judge found that plaintiff was “generally
able” to lead his normal life, despite occasional headaches and neck pain.
In particular, the court made the following findings of fact:
2
As a result of the accident plaintiff was never
hospitalized nor underwent surgery. He was off work for
eight weeks, but has since worked full time both as a welder
and a sawyer. He went to physical therapy on one occasion
and did not return. No doctor has placed plaintiff on medical
or work restrictions. Further, the headaches and neck pain do
not limit range of motion other than such motion normally
associated with headaches and occasional neck pain.
Currently, plaintiff takes non-prescription medication for his
headaches.
***
The evidence established that plaintiff has continuing
intermittent neck pain and headaches. However, his ability to
work has not been medically restricted, even though the pain
sometimes causes him to take additional breaks. Plaintiff has
no physician-imposed restrictions on his daily activities and
plaintiff is still able to work, drive, socialize, travel, take care
of himself and otherwise engage in the normal activities of
life. Plaintiff testified that when the headaches and neck pain
occur, he is less active and limits his usual activities. At that
point, he self-medicates with over the counter pain
medications. Plaintiff also testified that while engaging in
sexual relations with his wife, he occasionally experiences
severe spasms. But, plaintiff also testified he has a very good
intimate relationship with his wife despite these recurring
spasms. Although these minor lifestyle changes are
undoubtedly frustrating, they do not affect plaintiff’s ability to
lead his normal life. [Emphasis added.]
Based on the evidence presented, these findings of fact are not clearly
erroneous. MCR 2.613(C). Further, after applying Kreiner to these facts, I
would hold that the lower court did not err in concluding that plaintiff is
generally able to lead his normal life.2
_____________________________________________________________________________________________
2
“Absent an outcome-determinative genuine factual dispute, the issue of
threshold injury is now a question of law for the court. MCL 500.3135.”
Kern [v Blethen-Coluni, 240 Mich App 333 (2000)], supra at 341. Here,
the trial court’s finding of fact is reviewed for clear error, MCR 2.613(C),
while its ultimate legal conclusion is reviewed de novo. Id. at 344 n 3.
____________________________________________________________
3
WEAVER, J., concurs and states as follows:
Although I dissented from the decision in Kreiner v Fischer, 471 Mich 109
(2004), under the facts of this case I concur in the decision to reverse the judgment of the
Court of Appeals and reinstate the judgment of the circuit court.
CAVANAGH and KELLY, JJ., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 13, 2006 _________________________________________
d0110 Clerk