Mimoza Neci v. Vannice Arrin Steel Jr ( 2010 )

Order Michigan Supreme Court
Lansing, Michigan
December 1, 2010 Marilyn Kelly,
Chief Justice
137970 Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
MIMOZA NECI, Alton Thomas Davis,
Plaintiff, Justices
and
VERA NECI,
Plaintiff-Appellant,
v SC: 137970
COA: 277069
Wayne CC: 05-523483-NI
VANNICE ARRIN STEEL, JR., CLARA
JONES, and ANITA TERRY,
Defendants,
and
CITIZENS INSURANCE COMPANY OF
AMERICA,
Defendant-Appellee.
_________________________________________/
By order of August 20, 2009, the application for leave to appeal the November 13,
2008 judgment of the Court of Appeals was held in abeyance pending the decision in
McCormick v Carrier (Docket No. 136738). On order of the Court, the case having been
decided on July 31, 2010, 487 Mich ___ (2010), the application is again considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the
judgments of the Court of Appeals and the Wayne Circuit Court, and we REMAND this
case to the trial court for reconsideration in light of McCormick.
DAVIS, J., not participating. I recuse myself and am not participating because I
was on the Court of Appeals panel in this case. See MCR 2.003(B).
YOUNG, J. (concurring).
I reluctantly concur in this Court’s order remanding this case for reconsideration in
light of this Court’s recent decision in McCormick v Carrier, 487 Mich ___ (2010).
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Although I joined and continue to subscribe to Justice MARKMAN’s dissenting opinion in
that case, McCormick now controls when a person may recover in tort for non-economic
loss under the no fault act. The McCormick dissent astutely noted that “[b]y nullifying
the legislative compromise that was struck when the no-fault act was adopted—a
compromise grounded in concerns over excessive litigation, the overcompensation of
minor injuries, and the availability of affordable insurance—the Court’s decision today
will restore a legal environment in which each of these hazards reappear and threaten the
continued fiscal integrity of our no-fault system.” One could probably not design a
factual scenario that illustrates the embodiment of these concerns better than the facts
presented in this case.
Plaintiff here is a child who broke her non-dominant arm when she was involved
in an automobile accident. She was limited in activities that one would normally expect
would be restricted during the normal healing process and timeframe—about three
months. Specifically, plaintiff apparently could not carry her backpack to school, could
not help her mother with household chores, and received attendant care for a portion of
the time injured to assist with normal daily activities, such as dressing, bathing, and
feeding. Additionally, plaintiff self-limited herself from playing recreational sports
during recess and decided not to go to school on occasion even though her doctor placed
no such limitations on her activities.
Quite simply, if this injury is deemed a “serious impairment of body function” for
the purposes of recovery under the no-fault act—the type of impairment that was
legislatively grouped with “death” and “permanent serious disfigurement”—it is difficult
to imagine what injury would not qualify for non-economic compensation under this
Court’s new McCormick standard. Children often break bones and their activities are
appropriately reduced to account for their temporary injuries. The injury here and the
corresponding limitations imposed upon plaintiff are so unextraordinary that it simply
cannot be said that plaintiff suffered a “serious impairment” or that her general ability to
lead a normal life was affected in this case.
Unfortunately, the majority’s decision in McCormick to strip MCL 500.3135 of
any meaningful limitation by removing the statutory limitations imposed by the
Legislature produces a situation of seemingly unlimited liability that will require courts to
wrestle with the question of what constitutes a “serious impairment of body function”
without meaningful and defined guidance from their State’s senior Court. This case thus
brings to life the concern noted by Justice MARKMAN in his McCormick dissent that “I
am not sure that the majority’s new threshold can even be called a ‘threshold’ when it can
be satisfied in virtually every automobile accident case that results in injury.” I believe
without question that plaintiff here cannot validly claim to have been seriously impaired
in any relevant aspect of her life. Nevertheless, because McCormick now governs the
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analysis to this question, I feel compelled to allow the trial court to address this question
anew.
CORRIGAN and MARKMAN, JJ., join the statement of YOUNG, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 1, 2010 _________________________________________
d1124 Clerk