Tawanda Harris v. Allstate Fire and Casualty Insurance Company ( 2023 )

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
TAWANDA HARRIS, UNPUBLISHED
May 18, 2023
Plaintiff-Appellant,
v No. 359588
Wayne Circuit Court
ALLSTATE FIRE AND CASUALTY INSURANCE LC No. 19-014303-NI
COMPANY, also known as ALLSTATE
INSURANCE COMPANY,
Defendant,
and
ARNOLD ALSON,
Defendant-Appellee.
Before: GLEICHER, C.J., and HOOD and MALDONADO, JJ.
PER CURIAM.
Plaintiff, Tawanda Harris, appeals as of right the circuit court’s order granting summary
disposition in favor of defendant, Arnold Alson (hereinafter “defendant”), pursuant to MCR 2.116
(C)(10) (no genuine issue of material fact),1 concluding that plaintiff did not sustain a serious
1
Defendant’s motion and the trial court’s order each cited both MCR 2.116(C)(10) and MCR
2.116(C)(8) (failure to state a claim) as bases for summary disposition. However, both the motion
and order were based entirely on the evidence and absence of evidence. A motion for summary
disposition under MCR 2.116(C)(8) tests a complaint’s legal sufficiency, and such a motion must
be decided based only on the pleadings, not any record evidence. Jeffrey-Moise v Williamsburg
Towne Houses Coop, Inc, 336 Mich App 616, 623; 971 NW2d 716 (2021). Moreover, defendant’s
motion provided only cursory citations to MCR 2.116(C)(8). Therefore, we have proceeded with
our analysis by applying only MCR 2.116(C)(10) and the rules governing its application.
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impairment of an important body function pursuant to MCL 500.3135.2 We conclude that the
evidence offered in this case presents a factual dispute concerning the nature and extent of
plaintiff’s injuries, and the dispute is material to a determination of whether she has suffered a
serious impairment. Therefore, we reverse the trial court’s order and remand for additional
proceedings.
I. BACKGROUND
This case arises from a February 10, 2019 motor vehicle accident. Plaintiff was traveling
through an intersection when defendant did not stop for a red light and hit the driver’s side of her
vehicle. Plaintiff reported that her left shoulder hit the door of her car. At the scene, she
complained of shoulder and neck pain, and was transported to a hospital. An x-ray of plaintiff’s
left shoulder and a CT scan of her cervical spine showed no acute abnormalities. Three days after
the accident, plaintiff followed up with her primary care physician and complained of neck and
shoulder pain on her left side. Her physician noted that she “exhibits tenderness” in her left neck
area and left shoulder, but had a “normal range of motion.” Plaintiff was cleared to return to work
after missing eight days due to the accident. When plaintiff’s pain persisted, her primary care
physician referred her to a physical medicine and rehabilitation specialist.
On March 28, 2019, plaintiff presented to Advance Rehabilitation Clinic for physical
therapy evaluation and treatment, where Dr. Michael Daneshvar evaluated her and determined that
she had a “flattening of cervical lordotic curve,” decreased range of motion “at her cervical [spine]
secondary to pain and muscle stiffness,” and an elevated left shoulder “as a result of muscle spasm
at upper trapezius muscle.” Plaintiff saw Dr. Hussein Huraibi a week later who diagnosed a sprain
of cervical spine ligaments and traumatic spondylopathy in cervical region, and referred her to a
physical therapist. Dr. Huraibi disabled plaintiff from housework from April 3, 2019 until May
15, 2019.
Plaintiff attended physical therapy two to three times a week from March 28, 2019, until
June 21, 2019, but her pain persisted. In July 2019, she sought chiropractic care and underwent a
course of treatment that involved spinal adjustments, extra-spinal manipulations, therapeutic
exercise, manual trigger point therapy, traction, massage therapy, and hot packs.
Altogether, plaintiff missed eight days of work after the accident because her pain
prevented her from doing physical tasks required of her. The pain also impeded her ability to
engage in her recreational activities including bowling, playing softball, and walking for long
periods of time.
Plaintiff brought this third-party no-fault action against defendant, alleging that
defendant’s negligence caused her to suffer injuries to her left shoulder, right leg, back, left arm,
and neck, as well as aggravating preexisting conditions. Defendant moved for summary
disposition pursuant to MCR 2.116(C)(10), arguing: (1) plaintiff failed to demonstrate an
objectively manifested impairment of an important body function, and (2) plaintiff did not
2
This appeal does not involve any of plaintiff’s claims against Allstate Fire and Casualty Insurance
Company, which were dismissed based on a stipulation of the parties.
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demonstrate her injuries affected her general ability to lead a normal life. The trial court granted
summary disposition, concluding “plaintiff failed to present any evidence of an objective
manifestation.” Plaintiff moved for reconsideration, which the trial court denied. This appeal
followed.
II. STANDARDS OF REVIEW
We “review de novo a trial court’s decision to grant or deny summary disposition.” Broz
v Plante & Moran, PLLC, 331 Mich App 39, 45; 951 NW2d 64 (2020).
Motions for summary disposition brought pursuant to MCR 2.116(C)(10) test the factual
sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665(2019). “The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual
disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary
disposition under MCR 2.116(C)(10).” Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377;
836 NW2d 257 (2013). “In deciding whether to grant a motion for summary disposition pursuant
to MCR 2.116(C)(10), a court must consider the affidavits, together with the pleadings,
depositions, admissions, and documentary evidence then filed in the action or submitted by the
parties’ in the light most favorable to the nonmoving party.” Bonner v City of Brighton, 495 Mich
209, 220-221; 848 NW2d 380 (2014) (quotation marks, citations, and alteration omitted). The
moving party bears the initial burden of production, which may be satisfied “in one of two ways.”
Quinto v Cross & Peters Co, 451 Mich 358, 361; 547 NW2d 314 (1996). “First, the moving party
may submit affirmative evidence that negates an essential element of the nonmoving party’s claim.
Second, the moving party may demonstrate to the court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim.” Id. at 362 (quotation
marks and citation omitted). Once the moving party satisfies its burden in one of those two ways,
“[t]he burden then shifts to the opposing party to establish that a genuine issue of disputed fact
exists.” Id. A genuine issue of material fact exists “when reasonable minds can differ on an issue
after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW
Capital Mgmt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
We also “review de novo the interpretation and application of a statute as a question of
law. If the language of a statute is clear, no further analysis is necessary or allowed.” Eggleston
v Bio-Medical Applications of Detroit, Inc., 468 Mich 29, 32; 658 NW2d 139 (2003).
III. ANALYSIS
Plaintiff argues that the trial court erred by granting summary disposition because she
demonstrated a threshold injury under MCL 500.3135. We agree.
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.” Interpreting the version of MCL 500.3135 in effect until June 11, 2019, our
Supreme Court explained there are three necessary prongs to establish a “serious impairment of
body function”:
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(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). [McCormick v
Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010).]
The Legislature adopted McCormick’s framework by enacting subsection (5), which now
defines “serious impairment of body function” as follows:
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,
must be conducted on a case-by-case basis, and requires comparison of the injured
person’s life before and after the incident.
Turning to the first prong, the McCormick Court held an objectively manifested impairment
“is an impairment that is evidenced by actual symptoms or conditions that someone other than the
injured person would observe or perceive as impairing a body function. In other words, an
‘objectively manifested’ impairment is commonly understood as one observable or perceivable
from actual symptoms or conditions.” Id. at 196. The existence of pain and suffering, standing
alone, does not satisfy the serious impairment threshold; instead, “plaintiffs must introduce
evidence establishing that there is a physical basis for their subjective complaints of pain and
suffering,” and this showing “generally requires medical testimony.” Id. at 197-198 (quotation
marks and citation omitted). Relatedly, “when considering an impairment, the focus is not on the
injuries themselves, but how the injuries affected a particular body function.” Id. at 197 (quotation
marks and citation omitted).
Record evidence supports that plaintiff sustained objectively manifested impairments to
her back, neck, and shoulder caused by the accident. Defendant argues plaintiff failed to present
medical testimony or documentation evidencing a physical basis for her subjective complaints of
impairment as a result of the accident. However, Dr. Huraibi’s records show that he detected
“traumatic spondylopathy” in plaintiff’s cervical region, and Dr. Daneshvar indicated that plaintiff
had a flattening of her cervical lordotic curve, decreased range of motion, and an elevated left
shoulder as a result of muscle spasm. Therefore, plaintiff presented evidence of objectively
manifested impairments.
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While plaintiff’s medical records do not explicitly state these impairments were a result of
the accident, it is reasonably inferable that they were. This Court has stated:
Although causation cannot be established by mere speculation, a plaintiff’s
evidence of causation is sufficient at the summary disposition stage to create a
question of fact for the jury if it establishes a logical sequence of cause and effect,
notwithstanding the existence of other plausible theories, although other plausible
theories may also have evidentiary support. [Patrick v Turkelson, 322 Mich App
595, 617; 913 NW2d 369 (2018) (quotation marks and citations omitted).]
Pertinently, “[c]ausation is an issue that is typically reserved for the trier of fact unless
there is no dispute of material fact.” Id. After the accident, plaintiff was transferred to the hospital
and complained of neck and shoulder pain. Three days later, plaintiff followed up with her primary
care physician and again complained of neck and shoulder pain. About two weeks later, plaintiff
called her primary care physician and complained of pain and indicated she wanted to try physical
therapy. About a month later, plaintiff was diagnosed with a sprain of cervical spine ligaments,
traumatic spondylopathy in cervical region, flattening of cervical lordotic curve, decreased range
of motion, and an elevated shoulder because of a muscle spasm. Therefore, plaintiff’s evidence
demonstrated a “logical sequence of cause and effect” that these impairments were a result of the
accident. Id. As such, plaintiff’s medical records provided evidence of “an impairment that is
evidenced by actual symptoms or conditions that someone other than the injured person would
observe or perceive as impairing a body function” such that there was a question of fact on the
issue of objectively manifested impairment sufficient to survive summary disposition.
McCormick, 487 Mich at 196; see also MCL 500.3135(5)(a).
Turning to the second prong, “[w]hether a body function has great ‘value,’ ‘significance,’
or ‘consequence’ will vary depending on the person. Therefore, this prong is an inherently
subjective inquiry that must be decided on a case-by-case basis . . . .” McCormick, 487 Mich at
199. Historically, this Court has recognized: “The ability to move one’s back is an important body
function.” Chumley v Chrysler Corp, 156 Mich App 474, 481; 401 NW2d 879 (1986) (citations
omitted).3 In this case, the evidence suggests that the impaired body functions were important to
plaintiff. Plaintiff’s deposition testimony established her pain impacted her ability to walk,
participate in recreational activities, and perform certain physical tasks at work.
Turning to the third prong, plaintiff presented evidence these impairments affected her
general ability to live her normal life. Evidence was presented that plaintiff missed eight days of
work because of the accident, and Dr. Huraibi disabled plaintiff from housework from April 3,
2019 until May 15, 2019, after the accident. Additionally, plaintiff testified she could no longer
bowl or play softball, which were activities she participated in regularly before the accident.
Importantly, as the McCormick Court explained: “[t]he statute merely requires that a person’s
general ability to lead his or her normal life has been affected, not destroyed.” Id. at 202. Suitably,
3
While decisions issued before November 1990 should be “considered to be precedent and entitled
to significantly greater deference than are unpublished cases,” this Court is not “strictly required
to follow” such decisions. Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d
607 (2018) (emphasis omitted).
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“there is no quantitative minimum as to the percentage of a person’s normal manner of living that
must be affected.” Id. at 203. Moreover, “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.” Id. As such, plaintiff presented evidence from which
a rational trier of fact could conclude that the impairments affected her general ability to lead her
normal life.
Defendant argues that plaintiff has not suffered an objectively manifested impairment from
the accident and does not meet the threshold set forth by MCL 500.3135 to receive relief.
Defendant suggests that there is no factual dispute because the only injuries alleged by plaintiff
are soft tissue in nature and that plaintiff’s ability to lead her normal life has not been affected as
a result of the accident. However, neither the case law nor MCL 500.3135 render persistent “soft
tissue” injuries nonrecoverable, and here, plaintiff met her burden of establishing the existence of
genuine issues of disputed fact material to a determination of whether she suffered a serious
impairment. When viewing the evidence in the light most favorable to plaintiff, as we must, the
evidence reasonably supports a finding that she has chronic back, neck, and shoulder pain
impairments that are objectively manifested by a reduced range of motion and muscle spasms, and
which have affected her general ability to lead her normal life. As such, the trial court erred by
granting summary disposition in favor of defendant.
IV. CONCLUSION
Reversed and remanded for additional proceedings consistent with this opinion. We do
not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Noah P. Hood
/s/ Allie Greenleaf Maldonado
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