Range v. Gorosh , 140 Mich. App. 712 ( 1984 )

140 Mich. App. 712 (1984) 364 N.W.2d 686

RANGE
v.
GOROSH

Docket No. 74626.

Michigan Court of Appeals.

Decided October 19, 1984.

Charfoos, Christensen & Archer (by Adrienne G. Southgate), for plaintiffs.

Condit, McGarry & Schloff, P.C. (by Richard P. Condit), for defendants.

Before: BEASLEY, P.J., and J.H. GILLIS and R.B. MARTIN,^[*] JJ.

AFTER REMAND

PER CURIAM.

Plaintiffs appeal as of right from the trial court's denial of their motion for a directed verdict after reconsideration pursuant to a remand order of the Michigan Supreme Court. Range v Gorosh, 417 Mich 1059; 335 NW2d 649 (1983).

Plaintiffs filed a lawsuit to obtain damages for injuries received in an automobile accident which occurred on July 26, 1976. The defendants admitted liability, and thus the primary issue at trial was whether the injuries sustained by Mrs. Range amounted to the "serious impairment of body function" which constitutes a prerequisite to the maintenance of a tort action for noneconomic loss under the no-fault act, MCL 500.3135; MSA 24.13135.

It is undisputed that as a result of the accident Mrs. Range suffered six rib fractures and fractures of the right clavicle and small toe of the right foot. Plaintiff was hospitalized for four days and was thereafter unable to perform any household chores for a period of three months. Plaintiff also contended that she has had difficulty breathing as a result of the accident. Her medical expert, Dr. Herschel Mozen, supported this claim with a diagnosis of post-traumatic pleural thickening and fibrosis and testified as well that the accident exacerbated pre-existing lung and heart disease. Plaintiff's treating physician, examined by the defendants, testified regarding the bone fractures as well as a mild concussion but was not questioned as to any additional injuries.

At the close of proofs, plaintiff moved for a directed verdict on the question of whether she had suffered a "serious impairment of body function". The trial court denied the motion and submitted the case to the jury. A verdict of no cause of action was returned.

On appeal to this Court, the trial court's denial of plaintiffs' motion was affirmed on the ground that "plaintiff's incapacity was not of such a magnitude that all reasonable jurors would agree that it constituted a serious impairment of a body function". Range v Gorosh, 121 Mich App 1, 8; 328 NW2d 128 (1982). Plaintiffs sought leave to appeal the decision to the Supreme Court, which, in lieu of, granting leave, vacated the Court of Appeals judgment and remanded the case to the Oakland County Circuit Court for reconsideration in light of Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982).

After hearing arguments by the parties, the trial court reaffirmed its previous denial of plaintiffs' motion. In his ruling, the trial judge stated, "I'm merely reconsidering the same thing I considered at the time, I ruled not to take it from the jury * * *" and indicated that, unless a bone fracture automatically constitutes a serious impairment of body function, he would have to deny the relief requested by plaintiffs. Plaintiffs once again appeal the trial court's ruling.

At the time of this Court's original disposition of the matter, the law in Michigan was that the threshold question, i.e., whether a serious impairment of body function had been sustained, was a question of fact for the jury except in those instances where no reasonable trier of fact could differ and the injuries were either so severe or so minimal that the trial judge could resolve the issue as a matter of law. Williams v McGowan, 135 Mich App 457, 461; 354 NW2d 382 (1984). However, this rule was modified in Cassidy v McGovern, supra, where the Court concluded that:

"[T]he meaning of ``serious impairment of body function' is a matter to be determined by statutory construction. We hold that when there is no factual dispute regarding the nature and extent of a plaintiff's injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiff's injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of MCL 500.3135; MSA 24.13135 has been met." 415 Mich 502.

Cassidy cited several reasons underlying this change in the law, including the fact that "serious impairment of body function" is not a commonly used term, and thus a trial would be required in most instances if its interpretation were left to the trier of fact. Such a result would defeat the overall policy of reducing litigation in this area. Cassidy, p 501.

Contrary to the defendants' assertions, the nature and extent of the plaintiff's injuries was not subject to factual dispute. The evidence clearly established, and all parties agreed, that plaintiff sustained six rib fractures and a fracture of the right clavicle and of a toe in the right foot. Defendants' arguments on appeal do not address the nature and extent of the plaintiff's injuries, but rather focus on the effect of these injuries upon her capacity to perform household chores and her ability to return to work. Thus, defendants in reality dispute only whether the plaintiff's injuries amount to a serious impairment of body function as contemplated by MCL 500.3135; MSA 24.13135. The existence of such a dispute does not prevent the trial court from deciding the question as a matter of law. On the contrary, the import of Cassidy is that such disputes are to be resolved by the trial judge, not the jury.^[1]

Our review of the trial court's ruling upon reconsideration of the plaintiffs' motion leads us to the conclusion that Cassidy was not followed. The comment that "I'm merely reconsidering the same thing I considered at the time I ruled not to take it from the jury" indicates that the trial judge did not fully comprehend his expanded role in making the decision as set out in Cassidy. His ruling does not reveal whether he considered the existence or absence of a factual dispute as to the nature and extent of the plaintiff's injuries. We believe that if the issue had been considered, the only conclusion possible is that the threshold question should not have been submitted to the jury.

We also conclude that, as a matter of law, the plaintiff's injuries were of a severity such as to constitute a serious impairment of body function. In reaching this conclusion, we are mindful of the guidelines which have been developed thus far. For example, to meet the threshold, an injury must result in the impairment of an important body function and, by the statute's own terms, it must be serious. Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984). Further, the injury need not be permanent, but it must be objectively manifested. Cassidy, p 505; Guerrero v Schoolmeester, 135 Mich App 742, 748; 356 NW2d 251 (1984).

Plaintiff's injuries, broken bones, were objectively manifested. Further, while the injuries were not permanent, by the defendants' own admission they were of a nature which required bedrest in order to heal properly. Plaintiff was unable to perform ordinary household chores for a period of time and did not return to work until February, 1977. While the injuries were not of the severity suffered by the plaintiff in Cassidy, we believe that they were sufficiently serious to meet the threshold requirement contained in MCL 500.3135; MSA 24.13135.

Since the trial judge erred in submitting the threshold question to the jury, we must now decide whether this error deprived the plaintiffs of a fair trial. An error such as this constitutes the denial of a fair trial "only if the jury, in fact, did not find that she suffered a serious impairment". LaHousse v Hess, 125 Mich App 14, 19; 336 NW2d 219 (1983). Unfortunately, as in LaHousse, a general verdict was returned, and thus the jury could have come to any one of several conclusions. For example, they may have found that the threshold had not been met or that the threshold had been met but the injuries were not proximately caused by the accident. Further, they may have found in favor of the plaintiff on the threshold and causation questions but concluded that damages had not been proven. In light of the speculation necessitated by the general verdict, as well as the unlikelihood of the latter two possibilities, this Court cannot conclude that the plaintiff received a fair trial despite the trial court's error. Thus, the trial court's denial of the plaintiffs' motion for directed verdict on the threshold question is reversed, and the matter is remanded for a new trial on the issues of causation and damages only.

Reversed and remanded.

BEASLEY, P.J. (concurring).

I concur in reversing and remanding for the reason that the trial judge has not made findings applying the Cassidy^[1] standards.

The difficult question on appeal remains whether any effect is to be given to a jury verdict reached after a fair trial according to the law as it was at the time. The jury apparently decided that there was no serious impairment of body function. Quite obviously, the jury did not believe plaintiffs or the expert witness employed by their counsel. Probably, the Supreme Court meant in its brief order that the jury verdict should be disregarded.^[2]

However, the trial judge has not made sufficient findings for us to know the basis for his decision after remand and, particularly, whether or not he gave weight to the jury verdict.

NOTES

[*] Retired circuit judge, sitting on the Court of Appeals by assignment.

[1] As to the plaintiff's claims of problems with her breathing as a result of the accident, again there was no real dispute. The only evidence introduced at trial on the subject was the plaintiff's description of her complaints and her medical expert's testimony that she suffers from post-traumatic pleural thickening. Defense counsel did not attempt to dispute the existence of breathing problems or its relation to the automobile accident through his examination of the treating physician. However, our conclusions as to the propriety of the trial court's refusal to decide the question as a matter of law do not require acceptance of the plaintiff's breathing complaints. Thus, even if a factual dispute as to these problems does exist, "the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function", and a legal ruling on the threshold question was nonetheless appropriate.

[1] Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982).

[2] Range v Gorosh, 417 Mich 1059; 335 NW2d 649 (1983).