Bernadean Boulware v. David James Gutsue ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
BERNADEAN BOULWARE, UNPUBLISHED
December 18, 2018
Plaintiff-Appellant,
and
PAIN CENTER USA, PLLC, and
INTERNATIONAL PAIN CENTER, PLLC,
Intervening Plaintiffs,
v No. 339355
Wayne Circuit Court
DAVID JAMES GUTSUE, HEIDI LOUISE LC No. 16-006089-NI
GUTSUE, and ALLSTATE INSURANCE
COMPANY,
Defendants-Appellees.
Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
PER CURIAM.
Plaintiff, Bernadean Boulware, appeals1 an order granting the motion for summary
disposition of defendants David James Gutsue and Heidi Louise Gutsue (collectively defendants)
in this no-fault insurance action. We affirm.
This action arises out of alleged injuries sustained by plaintiff when David rear-ended
plaintiff’s vehicle. Plaintiff was stopped at a stoplight on Woodward when she was rear-ended.
The speed limit was 30 miles per hour, and the collision caused plaintiff’s vehicle to hit the back
of the vehicle that was stopped in front of her. Plaintiff’s “chest hit the steering wheel,” and her
right knee “hit the front of the car down at the bottom.” The airbags, however, did not deploy.
1
Boulware v Gutsue, unpublished order of the Court of Appeals, entered December 19, 2017
(Docket No. 339355).
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Immediately after the accident, plaintiff, who was 61 years old at the time, exited her
vehicle, inspected the vehicle for damage, and spoke to the woman she rear-ended after being
pushed forward by defendants’ vehicle. Plaintiff then returned to her vehicle and waited for her
husband. Plaintiff declined the police officer’s offer to call an ambulance, informing the officer
that she would have her husband take her to the hospital. Once plaintiff’s husband arrived,
plaintiff drove her vehicle home while her husband followed in his vehicle. Her husband then
drove plaintiff to the hospital, where she complained of pain in her back, shoulders, neck, and
knee.
Plaintiff commenced a first-party and third-party lawsuit against Allstate Insurance
Company and defendants. On February 23, 2017, defendants filed a motion for summary
disposition under MCR 2.116(C)(10), arguing there was no genuine issue of material fact that the
car accident did not cause plaintiff’s injuries, and no genuine issue of material fact that plaintiff
did not suffer a serious impairment of an important body function as a result of the accident. The
trial court concluded that plaintiff failed to “show an objective manifestation of impairment to an
important body function that has an effect on her general ability to lead her normal life.”
On appeal, plaintiff argues that the trial court erred in granting defendants’ motion for
summary disposition because there was a genuine issue of material fact regarding whether she
suffered a serious impairment of body function after a car accident between plaintiff and
defendants.2 We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen Contracting, LLC, 322 Mich
App 218, 224; 911 NW2d 493 (2017). “Summary disposition is appropriate under MCR
2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” Id. (citation omitted). There is a genuine issue of
material fact “when reasonable minds could differ on an issue after viewing the record in the
light most favorable to the nonmoving party.” Id. (citation omitted).
Michigan’s no-fault insurance statute limits tort liability. Patrick v Turkelson, 322 Mich
App 595, 606; 913 NW2d 369 (2018). Pursuant to MCL 500.3135(1), “[a] person remains
subject to tort liability for noneconomic loss caused by his or her 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.” Plaintiff argues that the May 20, 2015 motor
vehicle accident caused her “serious impairment of body function.”
A “ ‘serious impairment of body function’ means an objectively manifested impairment
of an important body function that affects the person’s general ability to lead his or her normal
life.” MCL 500.3135(5). In order to prove a serious impairment of body function a plaintiff
must demonstrate: “(1) an objectively manifested impairment (observable or perceivable from
actual symptoms or conditions) (2) of an important body function (a body function of value,
2
Plaintiff conceded that causation was not actually an issue. Thus, causation will not be
discussed herein.
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significance, or consequence to the injured person) that (3) affects the person’s general ability to
lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal
manner of living).” McCormick v Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010). Whether
an individual “has suffered serious impairment of body function” is a question of law to be
decided by the trial court if either “[t]here is no factual dispute concerning the nature and extent
of the person’s injuries,” or there is a factual dispute, “but the dispute is not material to the
determination [of] whether the person has suffered a serious impairment of body function.”
MCL 500.3135(2)(a). The trial court determined that plaintiff was unable to establish the first
prong, and, thus, granted defendants Gutsues’ motion for summary disposition.
An “objectively manifested impairment is one ‘that is evidenced by actual symptoms or
conditions that someone other than the injured person would observe or perceive as impairing a
body function.’ ” Turkelson, 322 Mich App at 606, quoting McCormick, 487 Mich at 196. What
is important is “ ‘whether the impairment is objectively manifested, not the injury or its
symptoms.’ ” Turkelson, 322 Mich App at 606, quoting McCormick, 487 Mich at 197.
Impairment is defined as “the state of being impaired.” Turkelson, 322 Mich App at 606-607
(quotation marks and citation omitted). And “impaired means the state of (1) being weakened,
diminished, or damaged or (2) functioning poorly or inadequately.” Id. at 607 (quotation marks
and citation omitted). “[M]ere subjective complaints of pain and suffering are insufficient to
show impairment.” Id. (emphasis added). However, “evidence of a physical basis for that pain
and suffering may be introduced to show that the impairment is objectively manifested.” Id.
Typically, medical evidence is needed “to make this showing.” Id.
Ultimately, plaintiff did not provide any evidence demonstrating an objectively
manifested impairment. Almost immediately after the accident, plaintiff went to St. John
Hospital where CT scans of plaintiff’s cervical spine and head showed no injuries attributable to
the accident, only changes in her medical condition attributable to degenerative conditions or
aging. X-rays of plaintiff’s right knee and chest also failed to show plaintiff suffered any injuries
as a result of the accident. An MRI report of plaintiff’s right shoulder only indicated plaintiff
had “[m]ild to moderate subacromial /subdeltoid bursitis.” Plaintiff argues that “[b]ursitis can be
caused by trauma.” This may be true, however, both this Court and the Michigan Supreme Court
have stated that the inquiry must be “ ‘whether the impairment is objectively manifested, not the
injury or its symptoms.’ ” Turkelson, 322 Mich App at 606, quoting McCormick, 487 Mich at
197. In other words, “while an injury is the actual damage or wound, an impairment generally
relates to the effect of that damage.” McCormick, 487 Mich at 197. The MRI of plaintiff’s right
shoulder showed an injury, rather than an impairment. The doctors who examined plaintiff after
the accident could not observe plaintiff’s alleged impairments, and plaintiff did not provide
affidavits or depositions from other individuals in plaintiff’s life who had observed an
impairment. See Turkelson, 322 Mich App at 609, citing McCormick, 487 Mich at 196-198
(stating that an impairment that is “observable by others” meets “the standard for showing an
‘objectively manifested impairment’ ”).
Dr. May Antone, plaintiff’s primary care physician who had treated plaintiff before the
accident, acknowledged that “there [was] not much of a change in [plaintiff’s] physical
examination” after the accident, and that she had to rely on plaintiff’s “subjective symptoms.”
Before the accident, plaintiff had “a lot of limitation[s] with her physical ability,” including
issues with walking and standing. According to plaintiff’s medical documentation, she had a
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history of arthritis. About a week after the accident, Dr. Antone observed that plaintiff exhibited
some “[d]ecreased range of motion in both shoulders,” which Dr. Antone attributed to “a soft
tissue injury.”
About six months after the accident, Dr. Asit Ray examined plaintiff for the defense, and
Dr. Ray noted that he “did not find any objective evidence to substantiate [plaintiff’s] subjective
complaint[s] of pain as a result of the auto accident.” When Dr. Jeffrey Carroll examined
plaintiff for the defense about a year after the accident, he did not observe any physical evidence
of injury to plaintiff’s shoulder, and noted that plaintiff had “[f]ull active and passive range of
motion,” but that plaintiff experienced pain when moving her shoulder. According to Carroll,
plaintiff’s symptoms were related to degenerative disc and joint disease, and she exhibited no
limitations concerning movement in her back, shoulders, or knee. Dr. Ruth Ramsey also
concluded, upon reviewing multiple MRIs and an earlier CT scan of plaintiff’s spine, that
plaintiff suffered from degenerative changes of the cervical spine—not post-traumatic changes.
In April 2017, Dr. Harry Sukumaran concluded that any sprains or strains had resolved with
treatment and any current complaints were related to preexisting conditions, including
degenerative changes of the spine. In fact, plaintiff’s own orthopedic spine surgeon, Dr. Martin
Kornblum, did not conclude that plaintiff’s complaints of back, shoulder, and knee pain were
related to the accident, instead concluding that the MRIs showed “some internal worsening” and
“some baseline spondylosis,” but “nothing that is causing any significant canal stenosis.” Dr.
Kornblum also noted lumbar facet arthritis in December 2016.
In sum, plaintiff did not demonstrate that she suffered an objectively manifested
impairment. Plaintiff’s subjective complaints of pain are insufficient to show impairment,
Turkelson, 322 Mich App at 607, and plaintiff’s own primary care physician testified that there
was no objective evidence to substantiate plaintiff’s complaints. Further, multiple doctors
concluded that the MRIs and CT scans indicated degenerative changes—just like the initial
findings directly after the accident. Moreover, those doctors who conducted physical
examinations only noted plaintiff’s complaints of pain, not long-lasting impairments attributable
to plaintiff’s injuries. Therefore, we hold that the trial court did not err when it concluded that
plaintiff failed to satisfy the first prong of the McCormick test. As such, we need not discuss the
second and third prongs.
In her brief on appeal, plaintiff argues the trial court erred when it failed to consider
evidence that plaintiff presented for the first time when she submitted her motion for
reconsideration, and when it failed to consider plaintiff’s argument that she was entitled to relief
from judgment because of newly discovered evidence. Plaintiff did not present this argument in
her application for leave to appeal. Under MCR 7.205(E)(4), an “appeal is limited to the issues
raised in the application and supporting brief.” MCR 7.205(E)(4). See also Boulware v Gutsue,
unpublished order of the Court of Appeals entered December 19, 2017 (Docket No. 339355).
Accordingly, this Court will not consider plaintiff’s arguments concerning the motion for
reconsideration and relief for judgment because of newly considered evidence.
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Thus, because plaintiff failed to demonstrate she had an objectively manifested
impairment as a result of the accident, the trial court did not err when it granted defendants’
motion for summary disposition as there was no genuine issue of material fact regarding whether
the car accident caused plaintiff a serious impairment of body function.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron
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