Richard D Hagerman v. Rashi Kakar ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RICHARD D. HAGERMAN, UNPUBLISHED
April 23, 2020
Plaintiff-Appellant,
v No. 346056
Ingham Circuit Court
RASHI KAKAR, LC No. 16-000819-NI
Defendant-Appellee.
Before: BORRELLO, P.J., and O’BRIEN and CAMERON, JJ.
PER CURIAM.
Plaintiff Richard D. Hagerman appeals the trial court’s order granting defendant Rashi
Kakar’s motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material
fact) on Hagerman’s negligence claim. We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of a motor vehicle accident that occurred at the intersection of Eaton
Rapids Road and Bishop Road in Ingham County, Michigan. On the evening of October 2, 2015,
Hagerman’s motor vehicle was struck when the vehicle that Kakar was driving entered the
intersection while Hagerman had the right of way. Hagerman reported having neck pain at the
scene of the accident. He was treated at a hospital and was later diagnosed with a sprained ankle,
a cervical strain, straightening of the cervical lordosis, cervicalgia, and a shoulder strain.
Hagerman reported that he suffered from migraines after the accident.
Hagerman filed suit against Kakar, alleging that she was negligent in causing the accident.
Discovery commenced. On September 27, 2016, Hagerman submitted to an independent medical
examination. The physician who conducted the examination concluded that Hagerman’s cervical
strain was related to the accident. However, the physician believed that Hagerman’s prognosis
was excellent and noted that cervical strains typically resolve within six months to a year. The
physician did not believe that further treatment was necessary or that temporary or permanent
restrictions should be placed on Hagerman.
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Hagerman testified at a September 28, 2017 deposition that he was still feeling pain in his
left shoulder and neck and that he was still experiencing headaches. 1 However, Hagerman
admitted that he had suffered from headaches and shoulder pain before the motor vehicle accident
occurred. Hagerman testified that, after the accident, he was unable to work for 30 days because
of the pain he was experiencing in his neck. As of September 2017, Hagerman did not lift weights
with his left arm, play basketball or football, or swim long distances. But Hagerman admitted that
he did not go to the gym very often before the motor vehicle accident and that he could still
complete abdominal and cardio workouts. Hagerman testified that he could no longer walk his
dogs as often as he used to, but he indicated that his dogs’ obesity contributed to their inability to
walk long distances. Although Hagerman continued to socialize with friends and family, he was
not able to enjoy going to movie theaters and could not lie on the left side of his body for longer
than 10 minutes because of the discomfort that he suffered. Hagerman testified that he had
difficulty driving because his range of motion was restricted due to his neck pain, but he did not
testify that he was physically unable to drive. He admitted that he had purchased and had driven
a motorcycle after his accident. Hagerman testified that his pain was worse in the mornings when
he was getting out of bed and getting dressed. However, he was able to get dressed, groom himself,
and complete household chores.
After the close of discovery, both Hagerman and Kakar moved for summary disposition
under MCR 2.116(C)(10). The trial court ultimately granted Kakar’s motion. The trial court,
noting that Hagerman had the right of way, determined that there was no genuine issue of material
fact concerning whether Kakar was negligent in causing the accident. The trial court found that,
although Hagerman was diagnosed with a sprained ankle, a cervical strain, and a shoulder strain
after the accident, there was evidence that Hagerman had headaches before the accident and that
he suffered from a left shoulder injury at work. Based on this evidence, the trial court determined
that there was a genuine issue of material fact as to whether Hagerman’s pain and limitations were
caused by the accident. Finally, the trial court determined that there was no genuine issue of
material fact regarding whether Hagerman’s injuries affected his general ability to lead his normal
life. The trial court noted that, after Hagerman returned to work, he continued to work the same
number of hours. With respect to Hagerman’s life outside of work, the trial court concluded that
Hagerman could still lead his normal life even if he suffered from some pain and sometimes did
less than he had before the accident. The trial court found that Hagerman’s normal life activities
mostly remained the same following the accident. The trial court entered summary disposition in
favor of Kakar. This appeal followed.
II. STANDARD OF REVIEW
Motions for summary disposition are reviewed de novo. See McCormick v Carrier, 487
Mich. 180, 188; 795 NW2d 517 (2010). This Court reviews the entire record to determine whether
a party was entitled to summary disposition. Patrick v Turkelson, 322 Mich. App. 595, 605; 913
NW2d 369 (2018). A motion brought under MCR 2.116(C)(10) tests the factual support of a
plaintiff’s claim and is reviewed “by considering the pleadings, admissions, and other evidence
1
Hagerman testified that he stopped experiencing pain in his ankle a few weeks after the motor
vehicle accident occurred.
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submitted by the parties in the light most favorable to the nonmoving party. Summary disposition
is appropriate if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich. 105, 111; 746
NW2d 868 (2008). “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 655 NW2d 486 (2008).
III. ANALYSIS AND APPLICATION
We conclude that summary disposition was inappropriately granted because a genuine
issue of material fact exists concerning whether Hagerman’s general ability to lead his normal life
was affected by the alleged accident-related injuries.2
Under MCL 500.3135(1) of the no-fault act, “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.” MCL 500.3135(5) defines a “serious impairment of body function” as follows:
(5) As used in this section, “serious impairment of body function” means an
impairment that satisfies all of the following requirements:
(a) It is objectively manifested, meaning it is observable or perceivable from
actual symptoms or conditions by someone other than the injured person.
(b) It is an impairment of an important body function, which is a body
function of great value, significance, or consequence to the injured person.
(c) It affects the injured person’s general ability to lead his or her normal
life, meaning it has had an influence on some of the person’s capacity to live in his
or her normal manner of living. Although temporal considerations may be relevant,
there is no temporal requirement for how long an impairment must last. This
examination is inherently fact and circumstance specific to each injured person,
2
As an initial matter, we note that the first two issues raised in Hagerman’s appellate brief are not
properly before this Court. Hagerman argues as his first issue that the trial court properly
determined that there was no genuine issue of material fact concerning Kakar’s negligence.
Hagerman argues as his second issue that the trial court erred by finding that a genuine issue of
material fact existed as to whether Hagerman’s current issues were caused by the accident. MCR
7.205(E)(4) limits an appeal to those issues raised in the application and its supporting brief, unless
otherwise ordered. In a March 24, 2019 order, this Court explicitly limited the grant of leave to
appeal to the issues raised in the application and its supporting brief. Hagerman v Kakar,
unpublished order of the Court of Appeals, entered March 24, 2019 (Docket No. 346056).
Hagerman’s application for delayed leave to appeal and Hagerman’s brief in support of that
application raised a single issue and did not discuss either of the first two issues raised in
Hagerman’s appellate brief. Therefore, these issues are not properly before us, and we will not
consider them.
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must be conducted on a case-by-case basis, and requires comparison of the injured
person’s life before and after the incident.
In McCormick, 487 Mich. at 215, our Supreme Court stated that the proper interpretation
of the clear and unambiguous language in MCL 500.3135 creates the following test:
To begin with, the court should determine whether there is a factual dispute
regarding the nature and the extent of the person’s injuries, and, if so, whether the
dispute is material to determining whether the serious impairment of body function
threshold is met. MCL 500.3135(2)(a)(i) and (ii). If there is no factual dispute, or
no material factual dispute, then whether the threshold is met is a question of law
for the court. Id.
If the court may decide the issue as a matter of law, it should next determine
whether the serious impairment threshold has been crossed. The unambiguous
language of MCL 500.3135([5]) provides three prongs that are necessary to
establish a “serious impairment of body function”: (1) an objectively manifested
impairment (observable or perceivable from actual symptoms or conditions) (2) of
an important body function (a body function of value, 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).
On appeal, only the third prong of McCormick is at issue, i.e., whether the serious
impairment affected Hagerman’s general ability to lead his normal life. In McCormick, 487 Mich.
at 202, our Supreme Court explained that to “affect the person’s ability to lead his or her normal
life” means “to have an influence on some of the person’s capacity to live in his or her normal
manner of living.” “By modifying ‘normal life’ with ‘his or her,’ the Legislature indicated that
this requires a subjective, person- and fact-specific inquiry that must be decided on a case-by-case
basis.” Id. Thus, “[d]etermining the effect or influence that the impairment has had on a plaintiff’s
ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after
the incident.” Id.
Viewing the evidence in the light most favorable to Hagerman, we conclude that the trial
court erred in concluding that Hagerman’s injuries did not affect his general ability to lead his
normal life. Hagerman testified that he did not work for 30 days as a result of his accident-related
injuries. Although Kakar accurately notes that Hagerman was not told by a doctor that he could
not work for 30 days, we conclude that this is not dispositive. Hagerman testified that his doctor
instructed him to take a week or two off of work. When Hagerman attempted to return to work,
he was sent home due to the fact that he was limping and experiencing pain. The following day,
Hagerman expressed that he did not believe that he would be able to work because of the pain he
was experiencing. As a result, Hagerman was given a temporary leave of absence without pay.
Hagerman testified that, when he returned to work, he was permitted to “skip” a certain job because
it caused pain to his shoulder.
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Although Hagerman only missed 30 days of work, in McCormick, our Supreme Court
explicitly stated that “the statute does not create an express temporal requirement as to how long
an impairment must last in order to have an effect on ‘the person’s general ability to live his or her
normal life.’ ” McCormick, 487 Mich. at 203. Furthermore, Hagerman did not need to show that
his general ability to lead his normal life had been “destroyed,” and there “is no quantitive
minimum as to the percentage of a person’s normal manner of living that must be affected.” Id. at
202-203. Indeed, a plaintiff can meet the third prong by showing impairment for a relatively short
period of time. See e.g., Piccione v Gillette, 327 Mich. App. 16, 21-22; 932 NW2d 197 (2019)
(opinion by M. J. Kelly, J.)3 (holding that there was a genuine issue of material fact precluding
summary disposition regarding whether the injured plaintiff’s general ability to lead his normal
life was impaired by his clavicle fracture where, in addition to evidence that the plaintiff could not
go to school for two weeks and that his ability to complete various other activities was
compromised after the accident for a period of time, there was also evidence that the plaintiff had
physically recovered from his injury and resumed his normal life within three or four months).
Therefore, the trial court erred by concluding that the undisputed evidence established that
Hagerman’s ability to work was not affected by the alleged accident-related injuries.
The evidence also supports that Hagerman’s personal life was affected. Hagerman testified
that, after the accident, he suffered pain in the morning while he was getting out of bed and getting
dressed. Hagerman testified that he no longer played basketball or football or swam long distances.
He was also unable to lie on his left side or watch movies in a movie theatre because of the pain
and discomfort that he experienced. Hagerman testified that he could not walk his dogs as often
or as far and that he struggled with performing certain chores. Although Kakar argues that a doctor
did not restrict Hagerman from performing certain tasks, the fact that an injured person is cautious
about participating in an activity after an accident may demonstrate that an injury has had an effect
on the person’s ability to live his normal life. See Piccione, 327 Mich. App. at 22.4 In this case,
Hagerman’s decision not to swim or play sports due to his fear of further injury, his decision to
walk his dogs less often than he did before the accident, and his pain and discomfort preventing
him from going to the movies or doing other things that strained his left shoulder and left side of
his body could demonstrate that his ability to lead his normal life was affected by his alleged
injuries. Therefore, when viewing the evidence in a light most favorable to Hagerman, we
conclude that the trial court erred by granting summary disposition in favor of Kakar.
3
In Piccione, Judge Markey and Judge Swartzle concurred with the lead opinion because binding
precedent compelled reversal. Piccione, 327 Mich. App. at 23 (Markey, J., and Swartzle, J.,
concurring).
4
Kakar cites various unpublished opinions of this Court in support of the propositions that “self-
imposed” limitations do not count as an impairment on the ability to lead a normal life, and that
serious impairment may not be predicated on the inability to do activities that have not been
attempted since the injury. However, to the extent that there is a conflict between Piccione and
the unpublished opinions cited by Kakar, Piccione controls. See MCR 7.215(C)(2).
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Stephen L. Borrello
/s/ Colleen A. O’Brien
/s/ Thomas C. Cameron
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