Brooks v. Reed

N. J. Kaufman, J.

(dissenting). Plaintiffs commenced this action against defendants under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The complaint alleged that defendant Reed was operating an automobile owned by defendant Hertz Corporation in a negligent fashion when he collided with a vehicle driven by plaintiff John Brooks. And, due to such negligence, plaintiff Brooks sustained injuries which resulted in a serious impairment of body function.

The defendants responded to plaintiffs’ complaint through an answer and a motion for summary judgment. The defendants based this motion on the theory that, as a matter of law, plaintiffs did not establish a serious impairment of a body function and, therefore, their complaint should be dismissed, MCL 500.3135; MSA 24.13135. In support of this assertion, defendants presented an affidavit of their joint counsel, who averred that an examination of medical records revealed that plaintiff Brooks had only seen his doctor, a chiropractor, on four occasions immediately following the incident, and that he was able to carry out his normal functions without seeing any physicians thereafter.

The plaintiffs, in turn, filed an opposing affidavit of one Dr. David Eisman, a chiropractic physician. In this statement, Doctor Eisman described plaintiff’s injuries in medical terms, indicated that *176these injuries were causally related to the automobile collision, and averred that, in his opinion, the plaintiffs injuries constituted a serious impairment of body function.

The court granted defendants’ summary judgment motion indicating that the facts plaintiffs relied upon to satisfy no-fault’s threshold requirements were insufficient as a matter of law. The trial court based its decision solely on the pleadings and the aforementioned affidavits. Doctor Eisman was never deposed in this matter. Plaintiffs appeal as of right from this adverse determination.

At the outset, it must be noted that nowhere in the lower court record, either in the motion presented by defendants or the judgment entered by the court, is there any indication of which subrule of the summary judgment rule was being relied on. This is a practice that has been looked upon with disfavor by this Court in the past. See Partrich v Muscat, 84 Mich App 724; 270 NW2d 506 (1978). Unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and the review on appeal become much more difficult. See, Bashara, The Illusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397, 400.

Nevertheless, since the trial court used "factual sufficiency” terms in its decision and since this decision was rendered following consideration of affidavits and depositions, rather than upon the pleadings alone, I will review the matter under GCR 1963, 117.2(3). See Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973).

Motions for summary judgment under GCR 1963, 117.2(3) are not proper unless no genuine issue as to any material fact remains. In passing on the motion, benefit of every reasonable doubt *177must be given to the party opposing the motion. Summary judgment under this provision is designed to test whether factual support exists for the claim made. Affidavits, pleadings, depositions, admissions, and other documentary evidence must be considered by the court. Courts are liberal in finding that a genuine issue does exist, in order not to infringe upon a party’s right to trial of disputed factual issues, Rizzo, supra at 370-374; Sullivan v The Thomas Organization, PC, 88 Mich App 77, 85-86; 276 NW2d 522 (1979).

In granting summary judgment to defendants then, the trial court ruled that plaintiffs alleged insufficient facts to satisfy the threshold requirement for serious impairment of a body function in MCL 500.3135(1); MSA 24.13135(1). In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 477-478; 208 NW2d 469 (1973), the Supreme Court indicated that the question of serious impairment should in most instances be submitted to the jury as triers of fact. "Only when interpretation approaches or breaches permissible limits does it become a question of law for the court”. Moreover, each case must be considered individually to reach this determination.

Permissible limits were found to have been approached in Cassidy v McGovern, 86 Mich App 321, 325-326; 272 NW2d 644 (1978), Vitale v Danylak, 74 Mich App 615, 619; 254 NW2d 593 (1977), lv den 403 Mich 848 (1978), and McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). In McKendrick, supra at 212, the trial court’s role was limited to those cases where it could be said with certainty that no reasonable jury could view the plaintiffs impairment as serious.

Applying this standard to the instant factual situation, I find it necessary to reverse the trial *178court’s determination. The affidavit of Dr. Eisman, which indicated plaintiff Brooks did suffer a serious impairment of body function, created a genuine issue as to this material fact upon which the fact-finders could have gone either way.

I would reverse and remand for proceedings in conformity with this opinion.