HARRIS
v.
McVICKERS
Docket No. 78-685.
Michigan Court of Appeals.
Decided February 6, 1979.Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiffs.
Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. (by Thomas F. Myers and Mark R. Bendure), for defendant.
Before: M.F. CAVANAGH, P.J. and BASHARA and ALLEN, JJ.
PER CURIAM.
Plaintiffs appeal from an order of summary judgment for defendant. Plaintiffs' suit for damages stems from injuries sustained in an automobile accident. One plaintiff alleges headaches and the other a stiff neck, knee pains, and headaches.
Defendant contends there was no issue as to a *510 material fact, GCR 1963, 117.2(3)[1], since the injuries claimed did not constitute "serious impairment of body function" so as to meet the threshold tort requirements of the no-fault act, MCL 500.3135; MSA 24.13135.[2]
A motion for summary judgment grounded on GCR 1963, 117.2(3) is designed to test whether factual support exists for the claim made. The party opposing the motion must come forward with some proof to establish the existence of a genuine issue of a material fact. Bob v Holmes, 78 Mich. App. 205, 212; 259 NW2d 427 (1977). Summary judgment amounts to an application of law to undisputed facts. See Dembinski v Aetna Casulaty & Surety Co, 76 Mich. App. 181, 183-4; 256 NW2d 69 (1977).
The controversy in the instant case is not what injuries were sustained but whether such injuries meet the requisite legal threshold necessary to permit a jury determination of the applicability of § 3135.
The threshold issue has been previously addressed by this Court. In McKendrick v Petrucci, 71 Mich. App. 200; 247 NW2d 349 (1976), this Court recognized the wisdom of permitting such a determination at the initial level by the trial court. However, due to the Supreme Court's finding in *511 Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441; 208 NW2d 469 (1973)[3], the panel felt constrained to limit the Court's role to those cases where it could be said with certainty that no reasonable jury could view the plaintiff's impairment as serious.
In Vitale v Danylak, 74 Mich. App. 615, 619; 254 NW2d 593 (1977), lv den 403 Mich. 848 (1978), another panel of this Court acknowledged the McKendrick decision, but upon reexamination of the Supreme Court's language, held that,
"We do not read the language of the Supreme Court as a complete prohibition of the use of summary judgment whenever a `serious impairment' or `permanent serious disfigurement' is alleged in the pleadings. While we recognize that generally the trier of fact must make the qualitative decision of whether a particular injury is serious or permanent, it does not follow that the trial judge is in all cases precluded from consideration of those questions.
The Supreme Court held that where the legal interpretation of the terms in question `approaches or breaches permissible limits' the interpretation becomes a question of law for the trial court."
See also Cassidy v McGovern, 86 Mich. App. 321; 272 NW2d 644 (1978).
Each case must be treated individually to determine *512 whether the alleged injuries fall below certain definitional limits, thereby allowing summary judgment. Vitale, supra, at 620.
There is no doubt that plaintiffs suffered discomfort due to the accident. However, the degree of injury in this case is insufficient to meet the minimum threshold requirement.
Plaintiffs' claim that the no-fault act violates equal protection must also fail. The constitutionality of the no-fault legislation has recently been upheld in Shavers v Attorney General, 402 Mich. 554, 623; 267 NW2d 72 (1978), where the partial abolition of the tort liability was clearly found not violative of the traditional test for equal protection.
Affirmed.
NOTES
[1] The motion for summary judgment in this case was erroneously a 117.2(1) motion. However, a review of the record indicates the parties and the trial court proceeded as if the motion was brought pursuant to GCR 1963, 117.2(3). Since the record reveals that neither party was misled, and that the motion was understood, the mislabeling does not constitute reversible error. Todd v Biglow, 51 Mich. App. 346, 349-50; 214 NW2d 733 (1974), BASHARA, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397.
[2] MCL 500.3135(1); MSA 24.13135(1) states:
"A person remains subject to tort liability for noneconomic loss caused by his 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."
[3] The Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294, stated:
"The final question is whether the phrases `serious impairment of body function' and `permanent serious disfigurement' provide standards sufficient for legal interpretation.
This Court holds that such phrases are capable of legal interpretation and, indeed, that juries or judges sitting without juries frequently have and do interpret comparable phrases bearing upon various facets of the law. Such findings result from denominated fact questions and thus are within the exclusive province of the triers of fact. Only when interpretation appraoches or breaches permissible limits does it become a question of law for the Court. Such questions must be approached on a case by case basis."