Meklir v. Bigham , 147 Mich. App. 716 ( 1985 )

147 Mich. App. 716 (1985) 383 N.W.2d 95

MEKLIR
v.
BIGHAM

Docket No. 80928.

Michigan Court of Appeals.

Decided June 26, 1985.

Meklir, Schreir, Nolish & Friedman, P.C. (by Samuel A. Meklir), for plaintiffs.

Garan, Lucow, Miller, Seward, Cooper & Becker (by Steven P. Iamarino and William J. Brickley), for defendant.

Before: D.E. HOLBROOK, JR., P.J., and BEASLEY and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting defendant's motion for summary judgment pursuant to GCR 1963, 117.2(3).

Plaintiff Rozanne Meklir was injured when the vehicle she was riding in was struck in the rear by defendant's automobile. The trial court held as a matter of law that plaintiff Rozanne Meklir, although injured in the accident, had not sustained a serious impairment of body function and was barred from bringing an action in tort to recover for noneconomic damages under the no-fault act, MCL 500.3135; MSA 24.13135. Rozanne's husband alleged loss of consortium. As his claim is dependent upon that of his wife summary judgment was entered on his claim as well. Unless otherwise noted, "plaintiff" will refer only to Rozanne.

On appeal plaintiff contends that the trial court erred in its grant of summary judgment as there were genuine issues of material fact and the affidavit filed in support of the motion was procedurally defective. Plaintiff also alleges that as a matter of law she did sustain a serious impairment of bodily function. Defendant asks us to award him costs and attorney fees as he argues that this is a frivolous and vexatious appeal.

Plaintiff's argument that the motion for summary judgment was procedurally defective is without merit. This precise issue was disposed of in Jakubiec v Kumbier, 134 Mich. App. 773, 775-776; 351 NW2d 865 (1984), and Brooks v Reed, 93 Mich. App. 166, 174-175; 286 NW2d 81 (1979). Accordingly, we find no reversible error in defendant's failure to file an affidavit based on personal knowledge.

Plaintiff contends that the trial court erred in finding that her injuries were not a serious impairment of a body function. She first argues that there was a factual dispute, which would make the extent of her injuries a question for the jury and the grant of summary judgment improper. To support her claim of a factual dispute, plaintiff points out the affidavit from one of her doctors who stated that her injuries were serious impairments of bodily function. However, these statements are legal conclusions, not facts. Additionally, plaintiff attempts to present a genuine issue of material fact by pointing out discrepancies between her affidavit and her deposition.

In her affidavit she alleged that her activities were severely curtailed due to her pain, while in her deposition she stated that she only had to slow her activities down due to her pain. The discrepancy plaintiff is relying upon regards the amount of pain she is suffering. However, her pain is not a factor material to her recovery.

"We also note the Cassidy Court's determination of the legislative intent to predicate recovery on objectively manifested injuries, not on pain and suffering. Cassidy, supra, p 505." Jakubiec, supra, p 777.

The actual injuries were not disputed.

"[G]iving the benefit of every reasonable doubt to the party opposing the motion and [we are] satisfied that it is impossible for the claim to be supported at trial because of some deficiency which could not be overcome." Feldman v Green, 138 Mich. App. 360, 367; 360 NW2d 881 (1984).

As there was no factual dispute, this was a matter of law for the court to decide. Cassidy v McGovern, 415 Mich. 483, 488; 330 NW2d 22 (1982).

Plaintiff is barred from bringing this suit under the no-fault act unless she can meet the threshold requirements of proving a serious impairment of an important bodily function. Cassidy, supra, pp 504-505. These requirements are stated in Williams v Payne, 131 Mich. App. 403, 409; 346 NW2d 564 (1984).

"First, ``impairment of body function' actually means ``impairment of important body functions'. Cassidy v McGovern, 415 Mich. 504. Second, by its own terms, the statute requires that any impairment be ``serious'. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich. App. 200, 210; 247 NW2d 349 (1976). Third, the section applies only to ``objectively manifested injuries'. Cassidy v McGovern, 415 Mich. 505."

Plaintiff claims that she suffered injuries to her neck, lower back and left hand. We do not doubt that the ability to move one's back is an important body function. Argenta v Shahna, 135 Mich. App. 477, 489; 354 NW2d 796 (1984). We would also agree that movement of one's neck and hand are also important body functions. However, we do not find any impairment of plaintiff's to be serious. Seriousness is judged by the effect of the injury on a person's ability to lead a normal life. Cassidy, supra, p 505.

Even if we were to hold that the medical findings of muscle spasm, tenderness and limitations upon the flexibility of her muscles were objective manifestations of her injuries, it does not appear that her lifestyle has been significantly altered. Flemings v Jenkins, 138 Mich. App. 788, 790; 360 NW2d 298 (1984). Plaintiff is still able to engage in her normal activities and is not incapacitated by her discomfort. McDonald v Oberlin, 127 Mich. App. 73, 76; 338 NW2d 725 (1983). While plaintiff experiences difficulties in her daily life, i.e., inability to play cards for long periods of time, difficulty in cooking and a reduction in her social life, we do not find that such difficulties interfere in any significant manner with plaintiff's lifestyle. Guerrero v Schoolmeester, 135 Mich. App. 742, 751; 356 NW2d 251 (1984), and Branden v Lee, 133 Mich. App. 215; 358 NW2d 63 (1984). Accordingly, we find no error in granting summary judgment for defendant.

We do not find this appeal to be frivolous or vexatious and we decline to award defendant attorney fees and costs under MCL 600.2445; MSA 27A.2445.

Affirmed. Cost to appellee.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.