Steven E Yursco v. Justin D Swanson ( 2010 )

Order Michigan Supreme Court
Lansing, Michigan
December 1, 2010 Marilyn Kelly,
Chief Justice
140927 Michael F. Cavanagh
Maura D. Corrigan
STEVEN E. YURSCO, Robert P. Young, Jr.
Stephen J. Markman
Plaintiff-Appellant, Diane M. Hathaway
Alton Thomas Davis,
v SC: 140927 Justices
COA: 289227
Saginaw CC: 08-000355-NI
JUSTIN D. SWANSON, GILBERT ARIZOLA,
GAIL B. LANCOP, and PROGRESSIVE
MICHIGAN INSURANCE COMPANY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the application for leave to appeal the March 9, 2010
judgment of the Court of Appeals is 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 Saginaw Circuit Court, and we REMAND this case to the trial court for
reconsideration in light of McCormick v Carrier (Docket No. 136738), 487 Mich ___
(July 31, 2010).
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).
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.” The factual scenario presented in this
case certainly brings to life these concerns and thus illustrates what is so troubling with
the virtually standardless positions articulated in McCormick.
Plaintiff here sustained a fracture in his left shoulder as a result of a motorcycle
accident. Within approximately two months plaintiff returned to work without
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restrictions, and shortly thereafter he self-discharged from physical therapy. The trial
court specifically found that plaintiff could not identify any recreational activities that he
has been unable to perform as a result of the accident, and that any residual effects from
the accident “have not deterred him from performing any vocational, domestic or
recreational activity which he engaged in prior to the accident.” Indeed, except for work,
plaintiff was able to resume his normal daily activities almost immediately (five days)
after the accident.
Plaintiff’s injury here is not “an objectively manifested impairment of an
important body function that affects the person’s general ability to lead his or her normal
life.” Indeed, the trial court’s findings of fact—which do not change even upon remand
for consideration under McCormick’s new legal standard—expressly state that plaintiff’s
ability to live in his normal manner of living has not been affected, nor has there been an
impairment of plaintiff’s pre-accident activity or lifestyle. The injury here was simply
not sufficient to meet the statute’s definition of “serious impairment of body function”—
the type of impairment that was legislatively grouped with “death” and “permanent
serious disfigurement.”
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.”
Nevertheless, because McCormick now governs the 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