Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 23, 2004
RICHARD ADAM KREINER,
Plaintiff-Appellee,
v No. 124120
ROBERT OAKLAND FISCHER,
Defendant-Appellant.
_______________________________
DANIEL LEE STRAUB,
Plaintiff-Appellee,
v No. 124757
PHILLIP MICHAEL COLLETTE and
TERESA M. HEIL-WYLIE,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
In these consolidated cases, we granted leave to
appeal to consider whether plaintiffs satisfy the “serious
impairment of body function” threshold set by the no-fault
insurance act in order to be able to maintain an action for
noneconomic tort damages. See MCL 500.3135(1). The trial
courts granted defendants’ motions for summary disposition,
concluding that neither plaintiff has suffered a “serious
impairment of body function.” The Court of Appeals
reversed.1 Because we conclude that plaintiffs do not
satisfy the “serious impairment of body function”
threshold, we reverse the judgments of the Court of Appeals
and reinstate the trial courts’ orders granting summary
disposition for defendants.
I. Origin and Development of the No-Fault Act
Before 1973, actions seeking damages for injuries
resulting from motor vehicle related accidents proceeded,
for the most part, pursuant to common-law accident
principles in Michigan’s courts. However, with the
enactment of the no-fault act, 1972 PA 294, effective
October 1, 1973, the Legislature abolished tort liability
generally in motor vehicle accident cases and replaced it
with a regime that established that a person injured in
such an accident is entitled to certain economic
compensation from his own insurance company regardless of
1
Straub v Collette, 254 Mich App 454; 657 NW2d 178
(2002), vacated and remanded 468 Mich 920 (2003), (On
Remand), 258 Mich App 456; 670 NW2d 725 (2003). Kreiner v
Fischer, 251 Mich App 513; 651 NW2d 433 (2002), vacated and
remanded, 468 Mich 885 (2003), (On Remand), 256 Mich App
680; 671 NW2d 95 (2003).
2
fault. Similarly, the injured person’s insurance company
is responsible for all expenses incurred for medical care,
recovery, and rehabilitation as long as the service,
product, or accommodation is reasonably necessary and the
charge is reasonable. MCL 500.3107(1)(a). There is no
monetary limit on such expenses, and this entitlement can
last for the person’s lifetime. An injured person is also
entitled to recover from his own insurance company up to
three years of earnings loss, i.e., loss of income from
work that the person would have performed if he had not
been injured. MCL 500.3107(1)(b).2 An injured person can
also recover from his own insurance company up to twenty
dollars a day for up to three years in “replacement”
expenses, i.e., expenses reasonably incurred in obtaining
ordinary and necessary services that the injured person
would otherwise have performed. MCL 500.3107(1)(c).
In exchange for the payment of these no-fault economic
loss benefits from one’s own insurance company, the
Legislature limited an injured person’s ability to sue a
2
There is a cap on the amount recoverable in a thirty
day period, which cap is adjusted annually for changes in
the cost of living. We are advised that the work loss cap
for accidents occurring between October 2002 and September
2003 was $4,070. An injured person may file a tort claim
against the party at fault seeking to recover excess
economic losses (wage losses and replacement expenses
beyond the daily, monthly, and yearly maximum amounts).
MCL 500.3135(3)(c).
3
negligent operator or owner of a motor vehicle for bodily
injuries. In particular, the Legislature significantly
limited the injured person’s ability to sue a third party
for noneconomic damages, e.g., pain and suffering. No tort
suit against a third party for noneconomic damages is
permitted unless the injured person “has suffered death,
serious impairment of body function, or permanent serious
disfigurement.”3 MCL 500.3135(1).
Following enactment of the no-fault act, Governor
Milliken requested of this Court an advisory opinion
regarding the act’s constitutionality. We issued such an
opinion in Advisory Opinion re Constitutionality of 1972 PA
294, 389 Mich 441; 208 NW2d 469 (1973), holding that the
significant wording of the statute—“serious impairment of
body function” and “permanent serious disfigurement”—
provided standards sufficient for legal interpretation. We
also held that the fact-finding related to these standards
was within the province of the jury rather than a judge.
This Court next addressed the no fault act in Shavers
v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). We
held that the act was a proper exercise of the police power
3
It is also the case that a party is foreclosed from
recovery of noneconomic loss if the person is more than
fifty percent at fault, MCL 500.3135(2)(b) and (4)(a), or
if the person was operating his own vehicle while
uninsured, MCL 500.3135(2)(c).
4
and that the legislative scheme did not offend either the
due process or equal protection guarantees of the Michigan
Constitution. We did, however, find the rate-making
procedure of the act unconstitutional and allowed the
Legislature eighteen months to correct it. As our
subsequent order in Shavers demonstrates, the Legislature
did correct it through 1979 PA 145 and 1979 PA 147. 412
Mich 1105 (1982). We also discussed in Shavers the
compromise rationale of the act:
The goal of the no-fault insurance system
was to provide victims of motor vehicle accidents
assured, adequate, and prompt reparation for
certain economic losses. The Legislature believed
this goal could be most effectively achieved
through a system of compulsory insurance, whereby
every Michigan motorist would be required to
purchase no-fault insurance or be unable to
operate a motor vehicle legally in this state.
Under this system victims of motor vehicle
accidents would receive insurance benefits for
their injuries as a substitute for their common
law remedy in tort.
. . . The act's personal injury protection
insurance scheme, with its comprehensive and
expeditious benefit system, reasonably relates to
the evidence advanced at trial that under the
tort liability system the doctrine of
contributory negligence denied benefits to a high
percentage of motor vehicle accident victims,
minor injuries were over-compensated, serious
injuries were undercompensated, long payment
delays were commonplace, the court system was
overburdened, and those with low income and
little education suffered discrimination. [402
[4]
Mich 578-579.]
4
We later discussed this compromise concept further in
Cassidy v McGovern, 415 Mich 483, 500; 330 NW2d 22 (1982),
5
Six years later, after the phrase “serious impairment
of body function” and other phrases in the act, such as
“permanent serious disfigurement,” had been placed before
juries as questions of fact pursuant to the 1976 advisory
opinion, this Court in Cassidy v McGovern, 415 Mich 483;
330 NW2d 22 (1982), retrenched on whether these were issues
for the jury. In Cassidy we held that opinions requested
under Const 1963 art 3, § 8 are only advisory and not
precedential and that revisiting the issue was advisable
where the Court had before it actual adverse parties to an
existing controversy. The Cassidy Court again reiterated
the general understanding this Court had of the no-fault
act—namely that it was a compromise encompassing the notion
of a certain recovery for economic loss in return for
where we quoted from 7 Am Jur 2d, Automobile Insurance,
§ 340, p 1068:
“It has been said of one such plan that the
practical effect of the adoption of personal
injury protection insurance is to afford the
citizen the security of prompt and certain
recovery to a fixed amount of the most salient
elements of his out-of-pocket expenses * * *. In
return for this he surrenders the possibly
minimal damages for pain and suffering
recoverable in cases not marked by serious
economic loss or objective indicia of grave
injury, and also surrenders the outside chance
that through a generous settlement or a liberal
award by a judge or jury in such a case he may be
able to reap a monetary windfall out of his
misfortune.”
6
reduced tort suit opportunities for noneconomic loss. The
Court said:
At least two reasons are evident concerning
why the Legislature limited recovery for
noneconomic loss, both of which relate to the
economic viability of the system. First, there
was the problem of the overcompensation of minor
injuries. Second, there were the problems
incident to the excessive litigation of motor
vehicle accident cases. Regarding the second
problem, if noneconomic losses were always to be
a matter subject to adjudication under the act,
the goal of reducing motor vehicle accident
litigation would likely be illusory. The
combination of the costs of continuing litigation
and continuing overcompensation for minor
injuries could easily threaten the economic
viability, or at least desirability, of providing
so many benefits without regard to fault. If
every case is subject to the potential of
litigation on the question of noneconomic loss,
for which recovery is still predicated on
negligence, perhaps little has been gained by
granting benefits for economic loss without
regard to fault. [Cassidy, supra at 500.]
Further, the Court rejected its Advisory Opinion
conclusion that juries should find facts and held that
trial judges were to decide, as a matter of law, whether
the plaintiff had suffered a serious impairment of body
function when there was no factual dispute about the nature
and extent of the plaintiff’s injuries, or when there was a
dispute, but it was not material to the determination
whether the plaintiff had suffered a serious impairment of
body function. Next, the Court held, without reference to
textual support but in an apparent effort to effectuate the
7
“goal of reducing motor vehicle accident litigation,” that
to satisfy the “serious impairment” threshold, an
“important” body function must be impaired, that the injury
must be an “objectively manifested injury”, and that the
injury must have an effect “on the person’s general ability
to live a normal life.” Id. at 505.5 The Court, in reading
this language into the act, clearly intended its holding to
assist in making the compromise at the heart of the no
fault act viable. This judicially created formula, or
5
The Cassidy Court stated:
. . .impairment of body function is better
understood as referring to important body
functions.
. . . We believe that the Legislature
intended an objective standard that looks to the
effect of an injury on the person's general
ability to live a normal life. . . .
Another significant aspect of the phrase
"serious impairment of body function" is that it
demonstrates the legislative intent to predicate
recovery for noneconomic loss on objectively
manifested injuries. Recovery for pain and
suffering is not predicated on serious pain and
suffering, but on injuries that affect the
functioning of the body. . . .
* * *
. . . we conclude that an injury need not be
permanent to be serious. Permanency is,
nevertheless, relevant. (Two injuries identical
except that one is permanent do differ in
seriousness.) [Id. at 504-506.]
8
gloss, in fact became the central inquiry for a court to
resolve when a plaintiff alleged that the tort threshold
for a third-party tort suit had been met.
Yet, four years after Cassidy was decided, and
interestingly after four new justices joined the Court, in
DiFranco v Pickard, 427 Mich 32, 50-58; 398 NW2d 896
(1986)6, the Court overruled Cassidy in several particulars
as to how the “serious impairment” issue should be
interpreted and applied. First, the Court found no textual
authority for the notion that “serious impairment” was not
to be decided as a matter of law and overruled Cassidy in
that regard. Next, DiFranco, using a textualist approach,
rejected the Cassidy requirement that an “important” body
function had to be impaired, concluding that there was no
such requirement in the statutory language. Id. at 39.
Similarly, DiFranco rejected the Cassidy “objectively
manifested injury” requirement—as it had been subsequently
construed in Williams v Payne, 131 Mich App 403; 346 NW2d
564 (1984), to not include objectively manifested symptoms—
6
The Cassidy majority opinion was signed by Justices
Fitzgerald, Williams, Ryan, Coleman, and Levin. Justice
Kavanagh concurred in part and dissented in part. Justice
Riley did not participate. The DiFranco majority opinion
was signed by four new justices: Cavanagh, Brickley, Boyle,
and Archer. Justices Williams, Levin, and Riley concurred
in part and dissented in part. Justices Williams and Riley
complained that the majority was overruling Cassidy only
four years after it was decided.
9
on the basis that it had proved to be an almost
insurmountable obstacle to recovery of noneconomic damages
in soft-tissue injury cases. DiFranco, supra at 40, 73.
Indeed, the Court believed that, as interpreted, this
requirement was limiting recovery only to catastrophically
injured persons. Id. at 45. Next, DiFranco discarded the
“general ability to live a normal life” test because, as
the Court characterized it, there is no such thing as “a
normal life.” Moreover, the Court believed that this
standard was flawed because of the practical, if debatable,
proposition that it had proved an almost insurmountable
obstacle to recovery of noneconomic damages. Id. at 39,
66.
Having dispatched the bulk of the Cassidy standards,
the DiFranco Court held that the phrase “serious impairment
of body function” involved two inquiries: (1) “What body
function, if any, was impaired because of injuries
sustained in a motor vehicle accident?” and (2) “Was the
impairment serious?” Id. at 39, 67. Next, the Court
readopted the old Advisory Opinion rule that the serious
impairment issue was to be decided by a jury whenever
reasonable minds could differ on the issue even if there
were no material factual dispute about the nature or extent
of the injuries. Id. at 38. Finally, DiFranco said that
10
the jury should consider such factors as “the extent of the
impairment, the particular body function impaired, the
length of time the impairment lasted, the treatment
required to correct the impairment, and any other relevant
factors.” Id. at 39-40, 69-70.
This resolution produced sufficient dissatisfaction to
the extent that eventually, in 1995, a bill was placed
before the Legislature to reform the 1972 act. As enacted,
the bill was 2 ½ pages long. The relevant goal of the 1995
bill was “to modify tort liability arising out of certain
accidents.” Notably, the bill amended only § 3135 of the
voluminous 1972 act. As passed and signed by the Governor,
the amendment required courts to decide the “serious
impairment of body function” issue if “[t]here is no
factual dispute concerning the nature and extent of the
person’s injuries,” or if there is a factual dispute, but
it is not material to the determination whether the person
has suffered a serious impairment of body function. MCL
500.3135(2)(a)(i), (ii). Second, “serious impairment of
body function” was 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(7).]
This means then that pursuant to the Legislature’s
directives embodied in the 1995 amendment, “serious
11
impairment of body function” contains the following
components: an objectively manifested impairment, of an
important body function, and that affects the person’s
general ability to lead his or her normal life.7
Furthermore, courts, not juries, should decide these
issues.8
Plaintiffs and their proponents argue that after 1995
it is only necessary to show that there has been an
impairment of an important body function that, in some way,
7
While Cassidy, supra at 505, required an evaluation
of the effect of an injury on the person’s general ability
to live “a normal life,” the DiFranco Court concluded that
it was impossible to objectively determine what “a normal
life” is, asserting: “there is no such thing as ‘a normal
life.’” DiFranco, supra at 66. Apparently cognizant of
this comment, and attempting to reconcile the incongruity
that DiFranco had pointed out, the Legislature, in the 1995
act, requires that the impairment affect “the person’s
general ability to lead his or her normal life.” (Emphasis
added.) It is then clear that, harkening to the DiFranco
Court’s guidance that there is no objectively “normal
life,” the Legislature modified the entirely objective
Cassidy standard to a partially objective and partially
subjective inquiry. Thus, what is “normal” is to be
determined subjectively on the basis of the plaintiff’s own
life and not the life of some objective third party.
However, once that is fixed as the base, it is to be
objectively determined whether the impairment in fact
affects the plaintiff’s “general ability to lead” that
life.
8
As should be evident, and as previous panels of the
Court of Appeals have noted, the most uncomplicated reading
of the 1995 amendment is that the Legislature largely
rejected DiFranco in favor of Cassidy. See, e.g., Jackson
v Nelson, 252 Mich App 643, 649-650; 654 NW2d 604 (2002),
and Miller v Purcell, 246 Mich App 244, 248; 631 NW2d 760
(2001).
12
influences, touches or otherwise affects the plaintiff’s
lifestyle, regardless of degree. If some effect has been
demonstrated, the new legislative test is satisfied,
regardless of the extent of the effect. (Emphasis added).9
Defendants and their amicis, on the other hand,
contend that a plaintiff must demonstrate not simply that
some aspect of his life has been affected, but that
generally he is no longer able to lead his normal life.
II. Facts and Proceedings Below
A. Straub v Collette
Daniel Straub injured three fingers on his nondominant
hand when his motorcycle collided with an automobile on
September 19, 1999. He suffered a broken bone in his
little finger and injured tendons in his ring and middle
fingers. Straub underwent outpatient surgery on September
23, 1999, to repair the tendons. No medical treatment was
required for the broken bone. He wore a cast for about one
month following surgery to assist the healing of the
tendons. He also took prescription pain medication for
about two weeks following the surgery and completed a
physical therapy program.
About two months following the surgery, Straub’s
doctor noted that Straub’s injuries were healing nicely.
9
Sinas & Ransom, The 1995 no-fault tort threshold: A
statutory hybrid, 76 Mich Bar J 76 (1997).
13
Around the same time, Straub returned to work as a cable
lineman for a cable television company, initially working
twenty to twenty-five hours a week, but returning to full
time work about three weeks later, on December 14, 1999.
He testified at his deposition that since returning to
work, he was able to perform all his job duties, but
sometimes with discomfort. In addition, he testified that
until late December 1999, he had difficulty doing household
chores, such as washing dishes, doing yard work, and making
property repairs. He was also unable to operate his
archery shop during the hunting season in the fall of 1999.
Operating his shop required him to repair bows, make
arrows, and process deer meat. In mid-January 2000,
however, he was able to resume playing bass guitar in a
band that performed on weekends. By the time of Straub’s
deposition, he could perform all the activities in which he
had engaged before the accident, although he was still
unable to completely straighten his middle finger. He was
also still unable to completely close his left hand, which
decreased his grip strength.
Straub filed an action in circuit court to recover
noneconomic damages under the no-fault act. The trial
court granted defendants’ motion for summary disposition,
finding that Straub’s injuries relate only to “extrinsic”
14
considerations such as playing guitar and processing deer
meat, and thus did not meet the threshold of “serious
impairment of body function.” MCL 500.3135(7).
The Court of Appeals reversed, holding that, between
the date of the accident and mid-January 2000, Straub’s
injuries affected his “general ability to lead his normal
life,” and, thus, Straub satisfied the serious impairment
threshold. Straub v Collette, 254 Mich App 454, 459; 697
NW2d 178 (2002). The Court reasoned that Straub was unable
to play bass guitar in his band for approximately four
months after the accident and that, before the accident, he
performed almost every weekend and practiced several times
each week. It also concluded that four months was a
significant amount of time during which Straub was unable
to play the guitar. The panel further reasoned that Straub
was unable to engage in full-time employment for about
three months. The Court concluded that, for a limited
amount of time, Straub’s injuries affected his general
ability to lead his normal life, “particularly his ability
to perform musically and to work.” Id.
Thereafter, defendants filed an application for leave
to appeal in this Court. On June 12, 2003, this Court
entered an order vacating the judgment of the Court of
Appeals and remanding this case to the Court of Appeals for
15
consideration in light of this Court’s order in Kreiner v
Fischer, 468 Mich 885 (2003). Straub v Collette, 468 Mich
920 (2003).
On remand, the Court of Appeals again reversed.
Straub v Collette (On Remand), 258 Mich App 456; 670 MW2d
725 (2003). The Court again concluded that Straub’s
injuries affected his ability to play the guitar and to
work. The Court determined that Straub’s injuries affected
his ability to perform household tasks and to operate his
archery shop. Thus, the Court of Appeals concluded that
Straub’s injuries affected his ability to lead his normal
life, “given the work and tasks that he performed before
the accident . . . .” Id. at 463. We subsequently granted
leave to appeal. 469 Mich 948 (2003).
B. Kreiner v Fischer
On November 28, 1997, plaintiff Kreiner was injured in
an automobile accident. Four days after the accident he
visited his family doctor, complaining of pain in his lower
back, right hip, and right leg. The doctor ordered x-rays
and cortisone injections for pain. Kreiner returned to his
doctor three days later and complained that the pain was
persisting. The doctor administered another cortisone
injection and prescribed physical therapy and pain
medication.
16
When Kreiner complained that his pain continued six
weeks after the accident, his doctor referred him to a
neurologist, Karim Fram, M.D., who conducted an
electromyography (EMG)10 that revealed mild nerve irritation
to the right fourth lumbar (L4) nerve root in Kreiner’s
back and degenerative disc disease with spondylolisthesis.11
Dr. Fram prescribed Motrin for pain along with a muscle
relaxant, and instructed Kreiner to perform certain back
and muscle strengthening exercises at home.
Kreiner returned to Dr. Fram in May 1998 complaining
of pain radiating from the back of his right thigh and
right calf, which pain was aggravated by bending over and
either sitting or standing for any length of time. Dr.
Fram prescribed pain medication and a continued program of
back and muscle strengthening exercises. In August 1998,
after Kreiner returned and complained of constant lower
back pain aggravated by climbing, bending over, pushing,
and pulling, Dr. Fram prescribed a three-week physical
10
EMG testing is a process by which impairment to
nerves in the arms and hands may be verified objectively.
It involves measuring and analyzing the responses of
muscles to stimulation by electricity. Dorland's
Illustrated Medical Dictionary (28th ed, 1994), p 537.
11
Spondylolisthesis is the "forward movement of the
body of one of the lower lumbar vertebrae on the vertebra
below it . . . ." Stedman's Medical Dictionary (26th ed,
1995), p 1656.
17
therapy course. In October 1998, Dr. Fram again prescribed
an anti-inflammatory medication and home exercises.
Dr. Fram’s notes reveal that plaintiff visited him in
August 1999 for a follow-up examination. At that time,
Kreiner was still complaining of continuous pain in his
lower back and of right leg pain radiating to the lower
extremities on the right side. Standing, lifting, climbing
a ladder, and staying in one position for a long time
tended to aggravate the pain. Dr. Fram advised Kreiner to
continue the home exercises, to use a back support during
daily activity, to avoid lifting objects over fifteen
pounds, and to refrain from excessive bending or twisting.
Dr. Fram also prescribed a mild muscle relaxant. Kreiner
subsequently stopped treating with any physician and
stopped taking medications.
Before and after the accident, Kreiner worked as a
self-employed carpenter and construction worker performing
home remodeling, such as building decks, doing electrical
work, and performing plumbing, siding, and some mechanical
work. After the accident, he could no longer work eight
hour days as he had previously. He was forced to limit his
workday to only six hours. Kreiner said he was also unable
to stand on a ladder longer than twenty minutes at a time,
could no longer perform roofing work, and was unable to
18
lift anything over eighty pounds.12 He also could no longer
walk more than half a mile without resting and could no
longer hunt rabbits. He could, however, continue to hunt
deer.
In October 1998, Kreiner filed a complaint against
Fischer, seeking noneconomic damages under MCL 500.3135.
The trial court granted Fischer’s motion for summary
disposition, finding that Kreiner failed to satisfy the
“serious impairment of body function” threshold. The trial
court stated in part:
While somewhat restricted, the Plaintiff in
this case is able to engage in lifting, bending,
twisting, and standing that is required by his
job. Furthermore, he continues to engage in his
favorite recreational activity which is hunting.
Based on these facts, Plaintiff is hard
pressed to show how his alleged impairment is
serious enough to affect his normal life.
Further, the Court finds that under the
factors enumerated in Harris [v Lemicex, 152 Mich
App 149; 393 NW2d 559 (1986)], the claimed injury
is not serious. Here, Plaintiff’s treatment is
limited to wearing a back support garment and
taking muscle relaxants and painkillers. He has
not been actually physically disabled at any
time, and the duration of his injury is
intermittent.
Finally, his own doctor has stated that
there is a chance that the damaged root will heal
completely.
12
Despite his limitations, Kreiner’s tax returns
revealed that 1998 was his highest income-earning year,
including several years before the injuries occurred.
19
For these reasons, the Court finds as a
matter of law the impairments for which Plaintiff
claims he suffers from do not impinge in any real
sense in his ability to lead a normal life.
Therefore, he is not entitled to maintain this
action in tort against the Defendant under the
No-Fault Statute, MCL 500.3135(1).
The Court of Appeals reversed the trial court’s
decision. Kreiner v Fischer, 251 Mich App 513; 651 NW2d 95
(2002). The Court determined that the trial court erred by
finding that Kreiner’s impairment was not “serious enough”
because MCL 500.3135(7) does not require a showing of
seriousness. Kreiner, supra at 518. The panel remanded
for a jury trial because Fischer disputed Kreiner’s claims
regarding his limitations on working and hunting. The
Court stated, however, that if Kreiner’s claims were not in
dispute, it would hold that Kreiner satisfied the serious
impairment of body function threshold and that he would be
entitled to summary disposition on that issue. The Court
of Appeals directed the trial court to grant summary
disposition to Kreiner if the trial court determined that
there are no material factual disputes with respect to
Kreiner’s claims regarding the effect of his injury on his
ability to work.
On appeal, this Court peremptorily vacated the Court
of Appeals decision and remanded for consideration
regarding “whether plaintiff’s impairment affects his
20
general ability to lead his normal life.” 468 Mich 885
(2003). This Court’s order stated:
The issue here is whether plaintiff
satisfies the “serious impairment of body
function” threshold set by the no-fault insurance
act in order to be able to maintain an action for
noneconomic tort damages. See MCL 500.3135(1).
The no-fault act, MCL 500.3135(7), 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.” The
circuit court granted defendant’s motion for
summary disposition, concluding that plaintiff’s
impairment is not “serious enough” to meet the
tort threshold. The Court of Appeals reversed,
concluding that plaintiff is not required to show
that his impairment “seriously” affects his
ability to lead his normal life in order to meet
the tort threshold. The Court of Appeals then
concluded that, if the facts as alleged by
plaintiff are true, his impairment has affected
his general ability to lead his normal life. In
our judgment, both the circuit court and the
Court of Appeals erred. Although a serious
effect is not required, any effect does not
suffice either. Instead, the effect must be on
one’s general ability to lead his normal life.
Because the Supreme Court believes that neither
of the lower courts accurately addressed this
issue, the case is remanded to the Court of
Appeals for it to consider whether plaintiff’s
impairment affects his general ability to lead
his normal life. [468 Mich 885 (2003)(emphasis
in original).]
On remand, the same panel of the Court of Appeals
again reversed the trial court’s decision. Kreiner v
Fischer (On Remand), 256 Mich App 680; 671 NW2d 95 (2003).
The Court of Appeals stated that this Court’s order did not
change in any significant manner the panel’s analysis in
21
its previous opinion. The panel reiterated a large portion
of its previous analysis because this Court had vacated the
prior opinion. The Court of Appeals then agreed with this
Court’s order that, under MCL 500.3135(7), just any effect
on a person’s general ability to lead a normal life will
not satisfy the statutory threshold. Rather, the injury
must affect one’s general ability to lead his normal life.
Although the panel stated that its previous opinion had
addressed this issue, it further opined that “one’s general
ability to lead his or her normal life can be affected by
an injury that impacts the person’s ability to work at a
job, where the job plays a significant role in that
individual’s normal life, such as in the case at bar.” Id.
at 688. The Court further opined that Kreiner’s
limitations “if true, indicate that plaintiff suffered a
serious impairment of body function under § 3135.” Id. at
689. We subsequently granted leave to appeal. 469 Mich 948
(2003).
III. Standard of Review
This Court reviews de novo the grant or denial of
summary disposition. American Federation of State, Co &
Muni Employees v Detroit, 468 Mich 388, 398; 662 NW2d 695
(2003). Similarly, questions of statutory interpretation
22
are reviewed de novo. In re MCI, 460 Mich 396, 413; 596
NW2d 164 (1999).
IV. Analysis
In construing statutes we examine the language the
Legislature has used. That language is the best indicator
of the Legislature’s intent. Wickens v Oakwood Healthcare
Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).
MCL 500.3135(1) provides:
A person remains subject to tort liability
for noneconomic loss caused by his or her
ownership, maintenance, or use of a motor vehicle
only if the injured person has suffered death,
serious impairment of body function, or permanent
serious disfigure-ment.
The issue in these consolidated cases is whether
plaintiffs have suffered a “serious impairment of body
function.” MCL 500.3135(7) 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.
The specific issue in these consolidated cases is
whether plaintiffs’ impairments affect their general
ability to lead their normal lives.
In order to be able to maintain an action for
noneconomic tort damages under the no-fault act, the
“objectively manifested impairment of an important body
function” that the plaintiff has suffered must affect his
23
“general ability” to lead his normal life. 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.
Random House Webster’s College Dictionary (1991)
defines “general” as “considering or dealing with broad,
universal, or important aspects.” “In general” is defined
as “with respect to the entirety; as a whole.” Id.
“Generally” is defined as “with respect to the larger part;
for the most part.” Id. Webster's New International
Dictionary defines “general” as “the whole; the total; that
which comprehends or relates to all, or the chief part; a
general proposition, fact, principle, etc.;—opposed to
particular; that is, opposed to special.” Accordingly,
determining whether a plaintiff is “generally able” to lead
his normal life requires considering whether the plaintiff
is, “for the most part” able to lead his normal life.
In addition, to “lead” one’s normal life contemplates
more than a minor interruption in life. To “lead” means,
among other things, “to conduct or bring in a particular
24
course.”13 Given this meaning, the objectively manifested
impairment of an important body function must affect the
course of a person’s life. Accordingly, the effect of the
impairment on the course of a plaintiff’s entire normal
life must be considered. Although some aspects of a
plaintiff’s entire normal life may be interrupted by the
impairment, if, despite those impingements, the course or
trajectory of the plaintiff’s normal life has not been
affected, then the plaintiff’s “general ability” to lead
his normal life has not been affected and he does not meet
the “serious impairment of body function” threshold.14
The starting point in analyzing whether an impairment
affects a person’s “general” i.e., overall, ability to lead
his normal life should be identifying how his life has been
affected, by how much, and for how long. Specific
activities should be examined with an understanding that
not all activities have the same significance in a person’s
overall life. Also, minor changes in how a person performs
13
Random House Webster’s Unabridged Dictionary (2001).
14
As we stated in Kreiner, 468 Mich at 885:
Although a serious effect is not required,
any effect does not suffice either. Instead, the
effect must be on one’s general ability to lead
his normal life. (Emphasis in original).
25
a specific activity may not change the fact that the person
may still “generally” be able to perform that activity.
From all the above we deduce several principles that a
court must consider in determining whether a plaintiff who
alleges a “serious impairment of body function” as a result
of a motor vehicle accident meets the statutory threshold
for third-party tort recovery. The following multi-step
process is meant to provide the lower courts with a basic
framework for separating out those plaintiffs who meet the
statutory threshold from those who do not.
First, a court must determine that there is no factual
dispute concerning the nature and extent of the person’s
injuries; or if there is a factual dispute, that it is not
material to the determination whether the person has
suffered a serious impairment of body function. If a court
so concludes, it may continue to the next step. But, if a
court determines there are factual disputes concerning the
nature and extent of a plaintiff’s injuries that are
material to determining whether the plaintiff has suffered
a serious impairment of body function, the court may not
decide the issue as a matter of law. MCL 500.3135(2)(a)(i)
and (ii).15
15
MCL 500.3135(2)(a)(ii) creates a special rule for
closed head injuries by providing that a question of fact
for the jury is created if a licensed allopathic or
26
Second, if a court can decide the issue as a matter of
law, it must next determine if an “important body function”
of the plaintiff has been impaired. It is insufficient if
the impairment is of an unimportant body function.
Correspondingly, it is also insufficient if an important
body function has been injured but not impaired. If a
court finds that an important body function has in fact
been impaired, it must then determine if the impairment is
objectively manifested. Subjective complaints that are not
medically documented are insufficient.
If a court finds that an important body function has
been impaired, and that the impairment is objectively
manifested, it then must determine if the impairment
affects the plaintiff’s general ability to lead his or her
normal life. In determining whether the course of
plaintiff’s normal life has been affected, a court should
engage in a multifaceted inquiry, comparing the plaintiff’s
life before and after the accident as well as the
significance of any affected aspects on the course of
plaintiff’s overall life. Once this is identified, the
court must engage in an objective analysis regarding
whether any difference between plaintiff’s pre- and post
osteopathic physician who regularly diagnoses or treats
closed head injuries testifies under oath that there may be
a serious neurological injury.
27
accident lifestyle has actually affected the plaintiff’s
“general ability” to conduct the course of his life.
Merely “any effect” on the plaintiff’s life is insufficient
because a de minimus effect would not, as objectively
viewed, affect the plaintiff’s “general ability” to lead
his life.16
The following nonexhaustive list of objective factors
may be of assistance in evaluating whether the plaintiff’s
“general ability” to conduct the course of his normal life
has been affected: (a) the nature and extent of the
impairment, (b) the type and length of treatment required,
(c) the duration of the impairment, (d) the extent of any
residual impairment17, and (e) the prognosis for eventual
recovery.18 This list of factors is not meant to be
16
Contrary to the dissent, we do not require that
"every aspect of a person's life must be affected in order
to satisfy the tort threshold." Post at 22. Rather, in a
quite distinct proposition, we merely require that the
whole life be considered in determining what satisfies this
threshold, i.e., whether an impairment "affects the
person's general ability to lead his or her normal life."
17
Self-imposed restrictions, as opposed to physician
imposed restrictions, based on real or perceived pain do
not establish this point.
18
See DiFranco, supra at 67-70; Hermann v Haney, 98
Mich App 445; 296 NW2d 278 (1980). The dissent argues that
these factors have no bases in the statutory text. Post at
14-15. The statutory text provides that “an objectively
manifested impairment of an important body function that
affects the person’s general ability to lead his or her
normal life” is a “serious impairment of body function.”
28
exclusive nor are any of the individual factors meant to be
dispositive by themselves. For example, that the duration
of the impairment is short does not necessarily preclude a
finding of a “serious impairment of body function.” On the
other hand, that the duration of the impairment is long
does not necessarily mandate a finding of a “serious
impairment of body function.” Instead, in order to
determine whether one has suffered a “serious impairment of
body function,” the totality of the circumstances must be
considered, and the ultimate question that must be answered
is whether the impairment “affects the person’s general
ability to conduct the course of his or her normal life.”19
V. Application to Straub
We are satisfied that there is no material factual
dispute regarding the nature and extent of Straub’s
MCL 500.3135(7). Does the dissent really believe that an
impairment lasting only a few moments has the same effect
on a person’s “general ability to lead his or her normal
life” as an impairment lasting several years or that an
impairment requiring annual treatment has the same effect
on a person’s “general ability to lead his or her normal
life” as an impairment requiring daily treatment?
19
We agree with the dissent that the “serious
impairment of body function” inquiry must “proceed[] on a
case-by-case basis because the statute requires inherently
fact-specific and circumstantial determinations.” Post at
10. Whether an impairment that precludes a person from
throwing a ninety-five miles-an-hour fastball is a “serious
impairment of body function” may depend on whether the
person is a professional baseball player or an accountant
who likes to play catch with his son every once in a while.
29
injuries. Thus, it is proper to determine whether he
sustained a serious impairment of body function as a matter
of law. MCL 500.3135(2)(a)(i).
First, we find that Straub’s injuries to his
nondominant hand (a closed fracture, open wounds, tendon
injuries to two fingers, and a quarter-size wound on the
palm) constituted an impairment of an important body
function that was objectively manifested.
Thus, the issue is whether the impairment affected his
general ability to live his life. In determining whether
Straub’s general, overall ability to lead his preaccident
life was affected, we consider his functional abilities and
activities. A necessary part of this analysis is
determining how long and how pervasively his activities and
abilities were affected. While an injury need not be
permanent, it must be of sufficient duration to affect the
course of a plaintiff’s life. The primary focus of the
Court of Appeals was on the work Straub missed, even while
initially acknowledging it was a “relatively limited time.”
254 Mich App 459. Straub did not work for eight weeks.20
Over the next three weeks, Straub worked twenty to twenty
five hours a week at his primary job as a cable lineman.
This time frame coincided with the deer hunting season.
20
His doctor had authorized him to return to work two
weeks earlier than he did.
30
Because Straub had been advised not to use his left hand,
he did not operate his shop or process deer for that
season.
The Court of Appeals considered an additional month of
work “disability” because Straub did not return to his
weekend job as a bass guitar player until mid-January 2000.
Straub estimated that over a four-month period he had to
miss fifteen to twenty club dates.
Straub’s treatment consisted of having his wounds
sutured, wearing a cast, and taking antibiotics and pain
medication. Four days after the accident, outpatient
surgery was performed on the fingers and palm. The
treatment was not significant or long-term. Within two
months, the fracture and surgical wounds had healed. There
were two sessions of physical therapy. At that point,
Straub discontinued all medical treatment. Plaintiff
estimated he was ninety-nine percent back to normal by mid-
January 2000. Given that Straub’s injury was not
extensive, recuperation was short, unremarkable, and
virtually complete, and the effect of the injury on body
function was not pervasive, we conclude that Straub’s
general ability to live his normal life was not affected.
There is no medical evidence that Straub has any residual
impairment or that the course of Straub’s life has been
31
affected. The temporary limitations Straub experienced do
not satisfy the statutory prerequisites. Considered
against the backdrop of his preimpairment life and the
limited nature and extent of his injuries, we conclude that
Straub’s postimpairment life is not so different that his
“general ability” to lead his normal life has been
affected. Because the course of Straub’s normal life has
not been affected, he failed to satisfy the “serious
impairment of body function” threshold for recovery of
noneconomic damages. Accordingly, the trial court properly
granted summary disposition for defendants in Straub’s
lawsuit.
VI. Application to Kreiner
We are satisfied that there is no factual dispute that
is material to the determination whether Kreiner suffered a
serious impairment of body function.21 Thus, it is
appropriate to determine as a matter of law whether he
experienced a serious impairment of body function. MCL
500.3135(2)(a)(ii).
21
Although there is a factual dispute concerning the
nature and extent of plaintiff’s injuries, this dispute is
not material to the determination whether plaintiff has
suffered a “serious impairment of body function” because
even assuming that all plaintiff’s allegations concerning
the nature and extent of his injuries are true, we conclude
that plaintiff has still not suffered a “serious impairment
of body function.”
32
First, we find that Kreiner’s medically documented
injuries to his lower back, right hip, and right leg
constitute an impairment of an important body function that
was objectively manifested.
Thus, the issue is whether the impairment affected his
general ability to lead his life. We find that Kreiner’s
impairment did not affect his overall or broad ability to
conduct the course of his normal life. In fact, his life
after the accident was not significantly different than it
was before the accident. He continued working as a self
employed carpenter and construction worker and was still
able to perform all the work that he did before, with the
possible exception of roofing work. His injuries did not
cause him to miss one day of work.
Kreiner states that he can no longer stand on a ladder
for longer than twenty minutes, can no longer lift anything
over eighty pounds, and was forced to limit his workday to
six hours because he can no longer work eight-hour days.
Kreiner does not contend, however, that these limitations
prevent him from performing his job. He also has
difficulty walking more than a half mile without resting
and can no longer hunt rabbits, although he continues to
hunt deer.
33
Looking at Kreiner’s life as a whole, before and after
the accident, and the nature and extent of his injuries, we
conclude that his impairment did not affect his overall
ability to conduct the course of his normal life.22 While
he cannot work to full capacity, he is generally able to
lead his normal life. A negative effect on a particular
aspect of an injured person’s life is not sufficient in
itself to meet the tort threshold, as long as the injured
person is still generally able to lead his normal life.
Considered against the backdrop of his preimpairment life,
Kreiner’s postimpairment life is not so different that his
“general ability” to conduct the course of his normal life
has been affected.23
Because Kreiner failed to establish that his
impairment affected his general ability to conduct the
22
As the trial court noted, plaintiff, while somewhat
restricted, is able to engage in lifting, bending,
twisting, and standing as required by his job.
23
Contrary to the dissent’s contention, we are not
concluding that Kreiner would have to show that he is
unable to work at all in order to show that he has suffered
a “serious impairment of body function.” Post at 20.
Instead, we are simply concluding that, although plaintiff
has suffered an impairment that does have an effect on his
ability to work, it is not a “serious impairment of body
function,” as defined by the Legislature, because plaintiff
is “generally able” to work and the course of his normal
life is otherwise unaffected. We disagree with the
dissent’s suggestion that any effect on one’s ability to
work is sufficient to establish a “serious impairment of
body function.”
34
course of his normal life, he did not satisfy the “serious
impairment of body function” threshold for recovery of
noneconomic damages. Accordingly, the trial court properly
granted summary disposition of Kreiner’s lawsuit.
VII. Response to the dissent
It must be pointed out that the dissent’s approach
leads to the rather dismaying conclusion that the intent of
the Legislature in 1995 was, in effect, to pull down the
no-fault temple and produce an auto insurance catastrophe
for the state’s drivers. That is, the dissent concludes
that the 1995 amendment, despite no words to this effect,
was designed, as the thrust of his argument makes clear, to
undermine the great compromise (no-fault benefits in return
for limited tort remedies) that all previous Supreme Court
decisions have recognized as existing in the no-fault
legislation and that is an indispensable requirement to
make no-fault viable. We decline to join him in this
calculated exercise predicated on what we believe is a
studied ignorance of what the Legislature intended.
VIII. Conclusion
In both of the cases before us the trial courts
granted summary disposition for defendants because the
courts determined that plaintiffs had not established a
serious impairment of a body function. The respective
35
panels of the Court of Appeals, however, reversed. We
reverse the judgments of the Court of Appeals because we
conclude that the trial courts properly determined that
plaintiffs did not establish a serious impairment of body
function.
The decision of the Court of Appeals is reversed in
Straub.
The decision of the Court of Appeals is reversed in
Kreiner.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
36
S T A T E O F M I C H I G A N
SUPREME COURT
RICHARD ADAM KREINER,
Plaintiff-Appellee,
v No. 124120
ROBERT OAKLAND FISCHER,
Defendant-Appellant.
_______________________________
DANIEL LEE STRAUB,
Plaintiff-Appellee,
v No. 124757
PHILLIP MICHAEL COLLETTE and
TERESA M. HEIL-WYLIE,
Defendants-Appellants.
_______________________________
CAVANAGH, J. (dissenting).
In these cases, this Court is called upon to interpret
MCL 500.3135. Because I disagree with the majority’s
construction of MCL 500.3135(7) and the result reached in
these cases, I must respectfully dissent. Accordingly, I
would affirm the decisions of the Court of Appeals.
I. Rules of Statutory Interpretation
Questions of statutory interpretation are questions of
law, which this Court reviews de novo. In re MCI Telecom
Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). “The
primary goal of statutory interpretation is to give effect
to the intent of the Legislature.” Id. at 411. To this
end, this Court abides by the governing principle that the
first step in determining the Legislature’s intent is to
examine the language of the statute itself. Id. “If the
statute is unambiguous on its face, the Legislature will be
presumed to have intended the meaning expressed, and
judicial construction is neither required nor permissible.”
Id.
II. MCL 500.3135
MCL 500.3135(1) unambiguously states that “[a] person
remains subject to tort liability for noneconomic loss
caused by his or her ownership, maintenance, or use of a
motor vehicle only if the injured person has suffered
death, serious impairment of body function, or permanent
serious disfigurement.” MCL 500.3135(2) provides in
pertinent part:
For a cause of action for damages pursuant
to subsection (1) filed on or after July 26,
1996, all of the following apply:
(a) The issues of whether an injured person
has suffered serious impairment of body function
2
or permanent serious disfigurement are questions
of law for the court 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 as to whether the person has
suffered a serious impairment of body function or
permanent serious disfigurement.
Pursuant to the plain and unambiguous language of
§ 3135(2), the trial court determines, as a question of
law, whether a particular plaintiff has satisfied the tort
threshold under two enumerated circumstances. Namely, (1)
where there is no factual dispute concerning the
plaintiff’s injuries, or (2) where there is a factual
dispute concerning the plaintiff’s injuries, but the
dispute is not material or outcome determinative regarding
whether the plaintiff suffered a serious impairment of body
function or permanent serious disfigurement.
The question becomes, however, who decides whether a
particular plaintiff has satisfied the tort threshold where
there is a factual dispute concerning the nature and extent
of the plaintiff’s injuries and such a dispute is material
or outcome determinative with respect to the serious
impairment of body function or permanent serious
disfigurement issue. The most natural reading of the
statute suggests that in such a situation, a question of
3
fact is presented for the jury and the jury decides whether
the plaintiff has suffered a serious impairment of body
function or permanent serious disfigurement.
Important to the resolution of these cases is the
statutory definition of “serious impairment of body
function.” MCL 500.3135(7) unambiguously states, “As used
in this section, ‘serious impairment of body function’
means an objectively manifested impairment of an important
body function that affects the person’s general ability to
lead his or her normal life.” The Legislature’s definition
necessarily contains three elements. A serious impairment
of body function is (1) an objectively manifested
impairment, (2) of an important body function, (3) that
affects the person’s general ability to lead his normal
life. All three requirements must be satisfied and, thus,
a thorough review of each requirement is necessary.
A. Objectively Manifested
The clear import of the “objectively manifested”
requirement is that the impairment must be observable or
identifiable in order for the impairment to satisfy the
first prong of the legislative definition. “Objective”
means “1. Of or having to do with a material object as
distinguished from a mental concept. 2. Having actual
existence or reality. 3. a. Uninfluenced by emotion,
4
surmise, or personal prejudice. b. Based on observable
phenomena; presented factually . . . .” The American
Heritage Dictionary, Second College Edition (1982).
Further, “manifest” means “[c]learly apparent to the sight
or understanding . . . . To show or demonstrate plainly;
reveal . . . .” Id. Thus, the first prong of the serious
impairment of body function analysis is, effectively, an
objective inquiry.
B. Of an Important Body Function
Once it is determined that the impairment is
objectively manifested, the trial court or jury must then
decide whether an important body function is impaired.
“Important” means “[m]arked by or having great value,
significance, or consequence. . . .” Id. Importance or
value is necessarily a subjective inquiry—what may be
important to one individual may not be as important or
valuable to another. As such, the Legislature plainly
intended the second prong of the analysis to be subjective
in nature, in contrast to the first prong.1 Thus, the “of
an important body function” analysis does not lend itself
1
Although it may be appropriate for a court to engage
in a so-called objective analysis of the “important body
function” prong, such an analysis is still undertaken with
the goal of ascertaining the subjective importance that a
particular plaintiff places on that body function.
5
to any judicial line drawing, and the utilization of
nonexhaustive factors is unwarranted.
For example, suppose a person is injured in a motor
vehicle accident and, as result, the person is unable to
fully manipulate her pinky finger to some degree. To an
“average” person, the ability to fully extend or bend her
pinky finger may not be important. But suppose the person
injured in the motor vehicle accident is Roger Clemens (and
he loses the zip on his fastball), or B. B. King (and he
can no longer play guitar in the same fashion), or Annika
Sorenstam (and she loses the distance on her drives). For
these individuals, the ability to manipulate their pinky
finger is important. Therefore, the unambiguous language
of MCL 500.3135(7) does not lend itself to any bright-line
rule and the analysis of this prong must proceed on a case
by-case basis.
C. That Affects the Person’s General Ability to Lead
His or Her Normal Life
Central to the resolution of these cases is the proper
interpretation of the third prong of the Legislature’s
definition of “serious impairment of body function.”
“Affect” means “[t]o have an influence on; bring about a
change in.” American Heritage Dictionary, supra.
“General” means:
6
1. Relating to, concerned with, or
applicable to the whole or every member of a
class or category. 2. Affecting or characteristic
of the majority of those involved; prevalent: a
general discontent. 3. Being usually the case;
true or applicable in most instances but not all.
4. a. Not limited in scope, area, or application:
as a general rule. b. Not limited to one class of
things: general studies. [Id. (emphasis in
original).]
“Able” means “having sufficient power, skill, or
resources to accomplish an object [sic, objective].”
Merriam-Webster Online Dictionary,
(accessed June 21, 2004). Thus, the Legislature requires
that the impairment have an influence on most, but not all,
of the person’s capacity “to lead his or her normal life.”
The last phrase in the statutory definition of
“serious impairment of body function” inevitably
contemplates a subjective inquiry. The phrase “his or her
normal life” requires a court to compare a particular
plaintiff’s life before and after the impairment. Further,
a person’s “normal” life is unavoidably relative and, thus,
inherently subjective. Because such an endeavor proceeds
on a case-by-case basis and each particular plaintiff’s
ability to lead his own normal life is uniquely
individualized, the third prong is not amenable to any
bright-line rule or set of nonexhaustive factors.
In sum, the third prong of the serious impairment of
body function analysis requires a reviewing court to
7
compare the plaintiff’s pre- and post-accident life and
determine whether the impairment has an influence on most,
but not all, of the plaintiff’s capacities to lead his
preaccident lifestyle.2
III. The Legislature’s Stated Test
On the basis of the foregoing, the unambiguous statute
sets forth the following test. The first step in the
serious impairment of body function analysis is to
determine whether there is a factual dispute concerning the
nature and extent of the person’s injuries and, if there is
a factual dispute, whether the dispute is material to the
serious impairment of body function issue.
If there is no factual dispute concerning the nature
and extent of the person’s injuries, a question of law is
presented for the trial court. MCL 500.3135(2)(a)(i).
If there is a factual dispute concerning the nature
and extent of the person’s injuries, but the dispute is not
material to adjudging whether the person has suffered a
2
Similar to the second prong, the third prong of the
analysis is inherently subjective in nature. While a court
may engage in a so-called objective analysis to determine
whether the impairment affects the person’s general ability
to lead his normal life, this endeavor is made with the
understanding that a person’s subjective normal life is the
relevant frame of reference.
8
serious impairment of body function, a question of law is
presented for the trial court. MCL 500.3135(2)(a)(ii).
If there is a factual dispute concerning the nature
and extent of the person’s injuries and the dispute is
material to adjudging whether the person has suffered a
serious impairment of body function, a question of fact is
presented for the jury.
Once this initial determination is made, the second
step is to decide whether the Legislature’s statutory
definition has been fulfilled. Under the plain and
unambiguous language of MCL 500.3135(7), the serious
impairment of body function threshold is satisfied where
the impairment is (1) an objectively manifested impairment
(observable and indentifable), (2) of an important body
function (a body function that the particular plaintiff
deems valuable), (3) that affects the person’s general
ability to lead his normal life (influences most, but not
necessarily all, of the particular plaintiff’s capacity to
lead his own unique preaccident lifestyle).
The Legislature’s statutory definition does not lend
itself to any bright-line rule or imposition of
nonexhaustive list of factors. Instead, the “serious
impairment of body function” inquiry proceeds on a case-by
case basis because the statute requires inherently fact
9
specific and circumstantial determinations. The
Legislature recognized that what is important to one is not
important to all, a brief impairment may be devastating
whereas a near permanent impairment may have little effect.
The Legislature avoided drawing lines in the sand and so
must we.
IV. Application of the Legislature’s Stated Test
A. Straub v Collette
Because there is no factual dispute regarding the
nature and extent of plaintiff Straub’s injuries, the
existence of a serious impairment of body function is
determined as a matter of law. MCL 500.3135(2)(a)(i).
There is little debate that Straub’s injuries to his hand
were observable and identifiable. Straub sustained a
closed left fifth metacarpal fracture, as well as open
wounds and tendon injuries to his middle and ring fingers.
Thus, Straub’s impairment was objectively manifested and,
therefore, the first prong of the statutory definition is
satisfied.
The second prong of the serious impairment of body
function analysis is satisfied where the impairment is to a
body function that Straub considers valuable. According to
Straub’s testimony, the injury to his hand was to an
important body function. Straub relied on the use of his
10
hand to work as a cable lineman, play guitar in his band,
operate his bow shop during deer season, and perform
household and personal tasks. Thus, because Straub’s use
of his hand was related to important body functions, the
second prong of MCL 500.3135(7) is satisfied.
Central to the resolution of this case is whether the
third prong of the serious impairment analysis has been
met; namely, whether the injury to his hand affected
Straub’s general ability to lead his normal life. Under
the undisputed facts in this case, I believe that Straub’s
injury had an influence on most, but not all, of Straub’s
capacity to lead his unique preaccident lifestyle.
Straub was able to work as a cable lineman before the
motor vehicle accident, but could not perform that work
following the accident. Further, before the injury, Straub
played in a band that practiced three or four times a week
and played at clubs almost every weekend. After the
accident, Straub could not play his guitar. Before the
accident, Straub would operate his bow shop during deer
season, but, as a result of the motor vehicle accident, he
could not operate his shop during the 1999 season.
Finally, Straub had difficulty performing household tasks
in the same manner as he did before the accident. As such,
the impairment to Straub’s hand had an influence on most,
11
but not all, of his capacity to lead his preaccident
lifestyle. Therefore, under the plain and unambiguous
language of MCL 500.3135(7), Straub has satisfied the tort
threshold and I would affirm the decision of the Court of
Appeals.
The majority reaches a contrary conclusion because it
imposes additional requirements on Straub that the
Legislature never envisioned. The majority places great
weight on the fact that
Straub’s injury was not extensive,
recuperation was short, unremarkable, and
virtually complete, and the effect of the injury
on body function was not pervasive . . . . There
is no medical evidence that Straub has any
residual impairment or that the course of
Straub’s life has been affected. The temporary
limitations Straub experienced do not satisfy the
statutory prerequisites. [Ante at 32 (emphasis
added).]
However, the clear language of MCL 500.3135(7) does
not make any express or implicit mention of time or
temporal considerations. As noted above, under the no
fault act, a person may remain subject to tort liability if
the injured person suffered death, permanent serious
disfigurement, or serious impairment of body function. MCL
500.3135(1). Unlike death or permanent serious
disfigurement, the serious impairment of body function
threshold does not suggest any sort of temporal limitation.
Further, the plain and unambiguous language of the
12
statutory definition of “serious impairment of body
function” does not set forth any quantum of time the judge
or jury must find dispositive when determining whether a
serious impairment of body function has occurred.
Therefore, the duration of the impairment is not an
appropriate inquiry.
The majority noticeably departs from accepted
principles of statutory interpretation when it concludes
that certain temporal factors should be considered when
evaluating whether the serious impairment of body function
threshold has been met. For example, the majority reasons
that “the type and length of treatment required,” “the
duration of the impairment,” “the extent of any residual
impairment,” and “the prognosis for eventual recovery” are
relevant factors to consider when making the threshold
determination.3 Ante at 28. Unlike the majority, however,
I do not find any support for these considerations in the
unambiguous language of MCL 500.3135(7).
Moreover, the majority disregards the principles of
statutory interpretation that it claims to follow. For
example, in construing the term “lead” in convenient
3
Curiously, the majority finds support for these
factors in Hermann v Haney, 98 Mich App 445; 296 NW2d 278
(1980), and DiFranco v Pickard, 427 Mich 32; 398 NW2d 896
(1986).
13
isolation, the majority states, “To ‘lead’ means, among
other things, ‘to conduct or bring in a particular
course.’. . . Given this meaning, the objectively
manifested impairment of an important body function must
affect the course of a person’s life. Accordingly, the
affect of the impairment on the course of a plaintiff’s
entire normal life must be considered.” Ante at 25
(citation omitted and emphasis added). Additionally, the
majority further asserts that the impairment “must be of
sufficient duration to affect the course of a plaintiff’s
life.” Id. at 31. In what is best described as tortured
logic, the majority has seen fit to impose a temporal
requirement teetering on the brink of permanency into the
unambiguous statute. Because the statute does not define
“serious impairment of body function” with respect to
permanency, or any temporal factor for that matter, the
majority impermissibly adds additional requirements not
found in the text of MCL 500.3135(7).4
4
The majority poses the following question which I
believe is indicative of the difference between the
majority and the dissent in this case:
Does the dissent really believe that an
impairment lasting only a few moments has the
same effect on a person’s “general ability to
lead his or her normal life” as an impairment
14
It is evident that the amount of time Straub was
injured drives the majority’s result. A fair reading of
the majority opinion seems to indicate that if Straub’s
injuries were of a more permanent nature, the majority may
be inclined to find that the requirements of MCL
500.3135(7) have been met. As mentioned above, however,
unlike death or permanent serious disfigurement, nothing in
the plain text of MCL 500.3135(7) suggests that the
Legislature intended temporal limitations or permanency be
considered when making the “serious impairment of body
function” determination. Therefore, the majority errs when
it reads additional language into the plain text of MCL
500.3135(7).
lasting several years or that an impairment
requiring annual treatment has the same effect on
a person’s “general ability to lead his or her
normal life” as an impairment requiring daily
treatment? [Ante at 29 n 18.]
In response, I must note that the statutory threshold
is evaluated on a case-by-case basis and under the
majority’s rationale none of the majority’s hypothetical
plaintiffs is likely to meet the threshold. The majority
would effortlessly conclude that interrupting several years
out of, for example, forty is a minor interruption. This
is precisely the reason why this Court should avoid reading
additional temporal requirements into the unambiguous
statute.
Moreover, my interpretation of MCL 500.3135(7) is not
based on what I believe or hope. Rather, my interpretation
is based on how the unambiguous statute is written and,
unlike the majority, not how I personally believe the
statute should be written.
15
While this roughly four-month serious impairment of
body function may appear to be at odds with the stated
purpose of the no-fault act, any trepidation over such a
policy concern is best left to the Legislature. Because
the statute does not speak in terms of “residual
impairment,” “recuperation,” or “permanency,” this Court
should avoid reading those requirements into the plain and
unambiguous text of the statute.
B. Kreiner v Fischer
Because there is a factual dispute concerning the
nature and extent of plaintiff Kreiner’s injuries and such
a dispute is material to the serious impairment of body
function issue, a question of fact is presented. Kreiner
is a self-employed construction worker and carpenter.
Additionally, Kreiner engages in recreational hunting.
After the motor vehicle accident, Kreiner claimed he could
no longer work eight-hour days, was unable to stand on a
ladder longer than twenty minutes, could no longer perform
general roofing work, was unable to lift heavy items, could
no longer walk more than one-half mile, and could no longer
hunt rabbits.
Defendant attempted to submit videotapes to the trial
court that allegedly demonstrate that Kreiner’s injuries do
not affect his life to the degree that Kreiner claims.
16
Additionally, in its brief to this Court, defendant argues
that these videotapes show Kreiner climbing up and down
extension ladders, driving nails, tearing off siding,
reaching, lifting, and crawling on a roof. In initially
remanding this case, the Court of Appeals directed the
trial court to consider the admissibility of the videotape
offered by defendant to determine whether there are
material issues of fact regarding Kreiner’s claims relative
to the effects of his injuries. Kreiner v Fischer, 251
Mich App 513, 519; 651 NW2d 433 (2002), vacated and
remanded 468 Mich 885 (2003). Thus, there is a factual
dispute that is material to the serious impairment of body
function issue because if the effects of Kreiner’s injuries
were undisputed, the requirements of MCL 500.3135(7) would
be satisfied.
Kreiner’s injuries were observable and identifiable.
The injury to Kreiner’s back was observable and verified by
magnetic resonance imaging and electromyography
examinations. Because the injury was objectively
manifested, the first prong of MCL 500.3135(7) is
satisfied. The second prong of the serious impairment of
body function analysis is also satisfied because the
impairment was to a body function that Kreiner deems
valuable. According to Kreiner’s testimony, the injury to
17
his back was to an important body function. Kreiner relied
on the use of his back to sustain his livelihood as a
construction worker and carpenter. Thus, the central issue
for this Court to resolve is whether Kreiner’s injury
affected his general ability to lead his normal life.
The third prong of the statutory definition of
“serious impairment of body function” is satisfied if the
impairment has an influence on most, but not all, of
Kreiner’s capacity to lead his preaccident lifestyle. In
resolving this issue, I find the reasoning of the Court of
Appeals on remand to be persuasive.
We find that one’s general ability to lead
his or her normal life can be affected by an
injury that impacts the person’s ability to work
at a job, where the job plays a significant role
in that individual’s normal life, such as in the
case at bar. Employment or one’s livelihood, for
a vast majority of people, constitutes an
extremely important and major part of a person’s
life. Whether it be wrong or right, our worth as
individuals in society is often measured by our
employment. Losing the ability to work can be
devastating; employment, regardless of income
issues, is important to a sense of purpose and
feeling of vitality. For those working a
standard forty-hour work week, a quarter of their
lifetime before retirement is devoted to time
spent on the job. An injury affecting one’s
employment and ability to work, under the right
factual circumstances, can be equated to
affecting the person’s general ability to lead
his or her normal life. For many, life in
general revolves around a job and work. It would
be illogical to conclude that where a person
loses the ability to work because of an injury
resulting from a motor-vehicle collision, after
18
being gainfully employed, the person’s life after
the accident, in general, would be unaffected.
[Kreiner v Fischer (On Remand), 256 Mich App 680,
688-689; 671 NW2d 95 (2003).]
Moreover, the panel noted, “Here, there was
documentary evidence presented by plaintiff that his
ability to walk, undertake certain physical movements, and
engage in recreational hunting was limited by the injury.
These limitations along with plaintiff’s alleged employment
limitations, if true, indicate that plaintiff suffered a
serious impairment of body function under § 3135.” Id. at
689. Under the circumstances presented in this case, I
would affirm the decision of the Court of Appeals because
if Kreiner’s claims are true, his injuries had an influence
on most, but not all, of his capacity to lead his
preaccident lifestyle. Additionally, because there is a
factual dispute concerning the nature and extent of
Kreiner’s injuries and such a dispute is material with
respect to MCL 500.3135(7), I would likewise remand this
case to the trial court.
In support of its conclusion that Kreiner did not
satisfy MCL 500.3135(7), the majority places great weight
on the notion that Kreiner’s life was “not significantly
different than it was before the accident.” Ante at 33.
Specifically, the majority posits Kreiner “was still able
to perform all the work that he did before, with the
19
possible exception of roofing work. His injuries did not
cause him to miss one day of work.” Id. However, the
majority also acknowledges that Kreiner “cannot work to
full capacity . . . .” Id. at 34. In an effort to
reconcile this doublespeak, the majority then concludes
that Kreiner’s work was simply a “particular aspect” of his
life and that Kreiner’s “postimpairment life [was] not so
different . . . .” Id. at 35.
Implicit in the majority’s rationale is the idea that
a person has not suffered a serious impairment of body
function unless that person is absolutely precluded from
engaging in their particular preaccident lifestyle and the
impairment lasts the length of the person’s life. Stated
differently, it is not enough that Kreiner can only
function at seventy-five percent of his preaccident work
ability, because the majority would conclude that Kreiner
must not be able to work at all.5 It is not enough that
Kreiner is limited in his lifting, bending, twisting, and
5
The majority notes that “[d]espite his limitations,
Kreiner’s tax returns revealed that 1998 was his highest
income-earning year, including several years before the
injuries occurred.” Id. at 19 n 12. However, such an
assertion ignores the idea that Kreiner claims to have been
working at seventy-five percent of his preaccident ability.
If Kreiner’s claims are true, Kreiner may have earned
twenty-five percent more that year. Thus, I do not find
Kreiner’s 1998 tax returns dispositive.
20
standing, because the majority would conclude that Kreiner
must not be able to lift, bend, twist, and stand at all.6
The majority would conclude that it is not enough that
Kreiner cannot hunt rabbits, because Kreiner can hunt deer.
The majority would conclude that it is not enough that
Kreiner can no longer walk one-half mile, because Kreiner
can still walk.
Such an all-or-nothing approach is not supported by
the unambiguous text of the statute. Moreover, it is
evident that the indivisible sum of the affected lifestyle
activities mentioned above leads to the logical conclusion
that Kreiner’s injuries had an influence on most, but not
all, of his capacity to lead his preaccident life. It is
equally evident that the majority uses the facts of the
Kreiner case to effectively create a more rigorous
threshold requirement than that mandated by the
Legislature.
Despite the majority’s assertions to the contrary, its
application of its stated test in Kreiner demonstrates that
it believes that every aspect of a person’s life must be
affected in order to satisfy the tort threshold, and the
6
As noted by the Court of Appeals, “injuries affecting
the ability to work, by their very nature, often place
physical limitations on numerous aspects of a person’s
life.” Kreiner (On Remand), supra at 689.
21
effects must last the course of the plaintiff’s entire
normal life. For example, the majority concludes that the
term “general” in MCL 500.3135(7) means “entire,” “whole,”
and “for the most part.” See Ante at 24. Remarkably, the
majority then determines that
whether a plaintiff is “generally able” to lead
his normal life requires considering whether the
plaintiff is, “for the most part” able to lead
his normal life.
* * *
[T]he effect of the impairment on the course
of a plaintiff’s entire normal life must be
considered. Although some aspects of a
plaintiff’s entire normal life may be interrupted
by the impairment, if, despite those
inpingements, the course or trajectory of the
plaintiff’s normal life has not been affected,
then the plaintiff’s “general ability” to lead
his normal life has not been affected and he does
not meet the “serious impairment of body
function” threshold. [Id. at 25 (emphasis
added).]
The majority further states, “we merely require that the
whole life be considered in determining what satisfies
[the] threshold . . . .” Id. at 28 n 16 (emphasis added).
The term “general” as used in MCL 500.3135(7) does
not, as the majority asserts, modify the phrase “to lead
his or her normal life.” Rather, “general” modifies the
term “ability.”7 In a disingenuous sleight of hand, the
7
Again, MCL 500.3135(7) defines “serious impairment of
body function” as “an objectively manifested impairment of
22
majority attempts to create a more difficult test than that
required by the Legislature. MCL 500.3135(7) does not
require that the impairment affect every aspect of the
course of a person’s “entire” or normal life.
Similarly, in its attempt to effectively raise the
statutory threshold, the majority’s actual application of
its test seeks to revive Cassidy v McGovern, 415 Mich 483;
330 NW2d 22 (1982), in full. In Cassidy, this Court
previously held that the “serious impairment of body
function” threshold was satisfied where the injury affects
“the person’s general ability to live a normal life.” Id.
at 505 (emphasis added). Later, in DiFranco v Pickard, 427
Mich 32, 66; 398 NW2d 896 (1986), this Court found that
standard flawed because “there is no such thing as ‘a
normal life.’” (Emphasis added.) In 1995, the Legislature
amended the no-fault act and set forth its own definition
of “serious impairment of body function.”
The majority claims that in 1995 the Legislature was
“[a]pparently cognizant” of the DiFranco Court’s
repudiation of Cassidy’s “a normal life” standard. Ante at
12 n 7. The majority further states:
[T]he Legislature, in the 1995 act, requires
that the impairment affect “the person’s general
an important body function that affects the person’s
general ability to lead his or her normal life.”
23
ability to lead his or her normal life.”
(Emphasis added). It is then clear that,
harkening to the DiFranco Court’s guidance that
there is no objectively “normal life,” the
Legislature modified the entirely objective
Cassidy standard to a partially objective and
partially subjective inquiry. [Id.]
In construing MCL 500.3135(7), the majority then concludes
that the statute requires a comparison of the person’s pre-
and post-accident lifestyle.
However, the majority merely pays lip service to its
own construction and fails to actually compare Kreiner’s
pre- and post-accident life. Kreiner framed the effects of
his impairment in terms of the limitations he experienced
at work, hunting rabbits, lifting and twisting, and walking
more than one-half mile. Kreiner convincingly argued that
these particular aspects were the indivisible sum of his
normal life. The majority, however, simply concludes that
these particular aspects of Kreiner’s “life as a whole” are
insufficient to meet the threshold. Implicit in the
majority’s actual application of its test is the conclusion
that “a normal life” cannot consist solely of work, hunting
rabbits, lifting and twisting, and walking more than one
half mile. Yet, MCL 500.3135(7) requires the impairment
affect the plaintiff’s normal life, not what the majority
infers to be “a normal life.” Kreiner’s normal life
apparently consisted of working, hunting rabbits, lifting
24
and twisting, and walking one-half mile and, thus, he
satisfied the statutory threshold. In my opinion, the
majority’s actual application of its test is merely a
subtle method of returning to the now refuted Cassidy “a
normal life” standard in order to fashion what it believes
to be a more difficult legislative definition.
The plain and unambiguous language set forth by the
Legislature simply requires that the impairment affect a
person’s general ability to lead his normal life. Unlike
the majority, I prefer to simply apply MCL 500.3135(7) as
written and leave any unresolved policy concerns in the
hands of the Legislature.
V. Response to the Response to the Dissent
I am cognizant of the overall purpose of the no-fault
scheme. Further, I am aware that my view may be perceived
as an invitation to increased litigation; but this is the
logical byproduct of the unambiguous words chosen by the
Legislature. Any apparent tension between the act’s
overall purpose and the Legislature’s unambiguous statutory
definition is best addressed by the Legislature itself.
The majority suggests that my approach is sacrilegious
to the “no-fault temple” and is an exercise predicated on
“studied ignorance.” Ante at 35. While admittedly unaware
that I was required to worship the no-fault insurance gods,
25
I believe that my “studied ignorance” is more properly
labeled as “judicial restraint.” If ignorance comes from
applying this unambiguous statute as written and not
substituting my own view for that of the Legislature, I
must say that ignorance is bliss. If so-called wisdom
comes from rewriting this unambiguous statute to comport
with my own preference on how the statute should be written
and applied, in this instance I must choose “ignorance.”
Today’s decision serves as a chilling reminder that
activism comes in all guises, including so-called
textualism.
VI. Conclusion
Under accepted principles of statutory interpretation,
a plain and unambiguous statute should speak for itself.
We should not casually read anything into an unambiguous
statute that is not within the manifest intent of the
Legislature as derived from the words of the statute.
Because the majority departs from this premise, I must
respectfully dissent. Rather, I would apply MCL 500.3135
as unambiguously written and, thus, affirm the decisions of
the Court of Appeals.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
26