Myrtle Flossie Moore v. William Thomas Swafford

STATE OF MICHIGAN
COURT OF APPEALS
MYRTLE FLOSSIE MOORE, UNPUBLISHED
June 16, 2016
Plaintiff-Appellant,
v No. 320246
Eaton Circuit Court
WILLIAM THOMAS SWAFFORD and COCA- LC No. 12-000969-NI
COLA REFRESHMENTS USA, INC.,
Defendants-Appellees.
Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.
RIORDAN, J. (dissenting).
I believe the trial court properly granted defendants’ motion for summary disposition.
Therefore, I respectfully dissent.
Plaintiff, born in 1938, has a lengthy medical history. She has a history of arthritis with
chronic back pain, cancer of the spine, osteoarthritis, hiatal hernia, hypercholesteremia,
hypertension, renal stones, anemia, diabetes, hypothyroidism, cataracts, and radiation and
chemotherapy for bone cancer, colon cancer, liver cancer, and spinal cord cancer. Plaintiff also
received medical treatment in 2006 for neck pain that radiated into her right shoulder, which
included pain in the neck and right shoulder when she moved her right shoulder. As the majority
concedes, plaintiff had a significant medical history showing multiple treatments and issues with
her shoulder, back, and spine
At issue in this case is whether the plaintiff suffered a serious impairment as a result of
the June 13, 2011 car accident. In that incident, plaintiff was rear-ended when stopped at a
traffic light. Because her hands were on the steering wheel, she believed her shoulder probably
twisted from the impact. However, she declined transport to the hospital after the accident.
After checking with her insurance agent, plaintiff went to the emergency room for
shoulder pain. Her shoulder was x-rayed, although there was no swelling or bruising. She
subsequently saw several doctors, including Dr. John Morgan, an orthopedic surgeon. She
informed him that the pain in her right shoulder was caused by the accident. An MRI of her
shoulder was taken, and demonstrated a 6-millimeter gap in the portion of her rotator cuff.
Morgan concluded that she most likely tore her rotator cuff, even though the radiologist detected
no evidence of a tear. Morgan diagnosed plaintiff with rotator cuff syndrome and shoulder
impingement syndrome.
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After continued treatment, including physical therapy and surgery, plaintiff initiated this
instant action against defendants, seeking damages for noneconomic losses under the no-fault
act. MCL 500.3135(1). Defendants eventually moved for summary disposition, contending that
there was no genuine issue of material fact regarding whether plaintiff suffered a serious
impairment of a body function under the no-fault act. The trial court granted defendants’
motion, and plaintiff now appeals.
Under the no-fault act, MCL 500.3101 et seq., tort liability for noneconomic loss is
limited to cases in which a plaintiff “has suffered death, serious impairment of body function, or
permanent serious disfigurement” that was “caused by [the] ownership, maintenance, or use of a
motor vehicle.” MCL 500.3135(1). A “serious impairment of body function” requires proof of:
“(1) an objectively manifested impairment (2) of an important body function that (3) affects the
person’s general ability to lead his or her normal life.” McCormick v Carrier, 487 Mich. 180,
195; 795 NW2d 517 (2010); MCL 500.3135(5). Courts may determine whether a person
suffered a serious impairment of body function as a matter of law if (1) there is not a factual
dispute concerning the nature and extent of the person’s injuries, or (2) there is a factual dispute
concerning the nature and extent of the person's injuries, but that dispute is not material to the
determination of whether the person suffered a serious impairment of body function. MCL
500.3135(2)(a).
In the instant case, the trial court found that there was some factual dispute regarding the
nature and extent of plaintiff’s injuries. Nonetheless, it concluded that the dispute was not
material to the determination of whether plaintiff suffered a serious impairment of a body
function. In other words, the trial court concluded that any injury that may have incurred did not
affect her general ability to live a normal life, which was the type of everyday living she had
prior to the June 13, 2011 car accident.
The trial court did not err. Under McCormick, a plaintiff must show that an accident-
related injury had “an influence on some of the person’s capacity to live in his or her normal
manner of living.” 487 Mich. at 202. This inquiry “necessarily requires a comparison of the
plaintiff's life before and after the incident.” Id. See also Nelson v Dubose, 291 Mich. App. 496,
499; 806 NW2d 333 (2011) (“[T]he plaintiff has to show that the plaintiff's ability to lead a
normal life has been affected by comparing the plaintiff’s life before and after the injury.”). The
McCormick Court noted three caveats: (1) the plaintiff’s general ability to lead her pre-accident
normal life need only be affected, not destroyed; (2) the focus is on whether the impairment
affected the plaintiff’s ability to maintain her normal manner of living, not whether some of her
manner of living has itself been affected; and (3) the impairment need not be permanent. Id. at
202-203.
The plaintiff testified that after the accident, she was able to continue to live alone, even
at her advanced age. No one came to live with her or to help with day-to-day activities. She
continued to mow her lawn, cook, clean her own home, and sweep the floors. Some of her
activities apparently were limited, such as washing walls, climbing ladders, carrying groceries, or
holding her grandchildren. However, given plaintiff’s advanced age and extensive medical
history before the auto accident, which included pain in her knees, shoulders, and neck, it cannot
be said that her life before the accident was more active, in any material way, than it was after
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the incident. See Nelson, 291 Mich. App. at 499. Plaintiff also continued to drive, again at her
advanced age, although not as frequently.
In summary, when viewing the facts in a light most favorable to plaintiff, the evidence
before us does not establish a genuine issue of material fact that plaintiff’s injuries affected her
general ability to lead her normal life after the accident at issue.
Accordingly, I would find that the trial court properly granted summary disposition to
defendants. For these reasons, I dissent.
/s/ Michael J. Riordan
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