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Monday, September 27, 2010
By Michael Nichols
As of July 31, 2010, McCormick v Carrier (Docket No. 136738, decided July 31, 2010) will make it easier for car crash victims to get their case before a jury for pain and suffering. Prior to McCormick, accident victims who suffered broken bones or had surgery, would end up with their case being dismissed at the Circuit Court level because they could not prove they suffered a threshold injury or serious impairment of body function. This is because the old law, which was passed when Kriener v Fischer became the law in 2004, made it so hard, if not impossible, for many automobile accident victims who had serious injuries to prove they suffered a threshold injury. McCormick overruled Kreiner and clarifies what it means to have a serious impairment of body function. Because of McCormick, victims of car crashes will now get their day in court and a chance to win damages (money) for pain and suffering in a third party auto accident lawsuit. For those victims who otherwise would not have a case, this new law is great news. To determine if you suffered a serious impairment of body function, 3 prongs are necessary: 1) an objectively manifested impairment ; 2) of an important body function that 3) affects the person's ability to lead his or her normal life (influences some of the victim's capacity to live in his or her normal manner of living).
The first prong, Objectively manifested impairment: The court stated, the common meaning of "objectively manifested" is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe and perceive as impairing a body function. In other words, objectively manifested impairment is commonly understood as one observable or perceivable from actual symptoms or conditions (which will generally require medical testimony, but not always) establishing that there is a physical basis for the subjective complaints of pain and suffering. Examples of objectively manifested impairments can be broken bones, disc herniation, illnesses such as seizure disorders, paralysis, brain injuries, etc.)
The second prong, Important body function: The court stated, whether a body function has great value, significance, or consequence will vary depending on the person. Further, whether a body function is important is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person's life. (i.e. functionality of a pinky finger is more important to a profesisonal pianist vs a bartender).
The third prong, Ability to lead normal life: The third prong requires a comparison of the person's pre-and-post-accident life. Your life, however, does'nt have to be destroyed; it only has to be "affected." It doesn't matter if you totally ceased doing a particular activity versus could still do it, but just not as well. Both scenarios still "affected" your ability to lead your normal life. For example, if Bob played golf everyday before the accident and after the accident he could no longer play because of the torn rotator cuff he sustained in the accident, he would satisfy the third prong because his ability to lead his normal life was affected. In comparison, if Bob could still play, but did so with pain that allowed him to play half of the games he used to prior to the accident, Bob would still meet the third prong.
Plaintiff, Mr. McCormick, suffered a badly fractured ankle that required two surgeries. The surgeries were successful and Mr. McCormick returned to work approximately one year after the accident and was able to resume all of his pre-accident activities including fishing and golfing. Mr. McCormick's case was thrown out of the Circuit Court (dismissed) because his injury did not meet the threshold injury or serious impairment of body function - as that term was applied by the Kreiner decision. This is the type of case that made the old law so bad for Michigan auto accident victims. Individuals who suffered very serious injuries were prevented from having their day in court. The court in McCormick stated, that the Kreiner case, "took unambiguous statutory text and, through linguistic gymnastics, contorted it into a confusing and ambiguous test." To summarize, a auto accident victim no longer has to go through 'linguistic gymnastics" to have their day in court. Instead, the court is required to follow the three prong test described above.
Wendy Schiller-Nichols focuses her practice on automobile accidents. She represents victims who have lost loved ones or themselves sustained serious injuries due to a car or truck accident. If you have any questions, please contact Ms. Schiller-Nichols at 517-432-9000.