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Docket Number

Docket No. 109570.

Attorney(S)

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen Bartnick (by Lee R. Franklin), for plaintiff. Conlin, McKenney, Philbrick Laro (by Allen J. Philbrick and Joseph W. Phillips), and MacArthur, Cheatham Acker, P.C. (by James G. Gross and Mary T. Nemeth), of Counsel, for defendant.

Judges

PER CURIAM.

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Smart Summary

Moore v Wicks, Docket No. 109570 (Mich. Ct. App. Feb. 7, 1990) — Summary

Factual and Procedural Background

On April 9, 1983, plaintiff sustained a laceration and fracture to the middle finger of her right hand in an automobile accident involving defendant as owner and driver of the other vehicle. Treatment was initially unsuccessful. On April 10, 1984, plaintiff underwent surgery to excise a bone fragment from the metacarpophalangeal joint. After continued deterioration, on November 27, 1985, surgery was performed to remove the joint and replace it with a plastic finger joint prosthesis. Additional surgery was performed on June 26, 1986. Plaintiff alleged she had not fully recovered after these procedures; defendant characterized the residual effects as minimal.

Plaintiff filed an original complaint on September 28, 1983. After mediation in October 1984, the case was removed to district court. On March 8, 1985, defendant moved for summary disposition arguing the injury did not constitute a "serious impairment of a bodily function" under MCL 500.3135; MSA 24.13135. The district court granted summary disposition on March 27, 1985; the circuit court affirmed on appeal. This Court denied leave to appeal, and the Michigan Supreme Court also denied leave subsequent to plaintiff's last surgery. On January 8, 1987, plaintiff filed a new suit alleging that the "serious impairment" arose in 1985 when the joint was replaced with the prosthesis. The circuit court granted defendant's motion for summary disposition under MCR 2.116(C)(7) on res judicata grounds. Plaintiff appealed; the Court of Appeals affirmed.

Legal Issues Presented

Whether res judicata bars plaintiff's second action based on the same injury where a prior action between the same parties resulted in final judgment.
Whether plaintiff's original suit was premature for failing to allege a "serious impairment of a bodily function" under MCL 500.3135 when plaintiff later contends the impairment accrued after the first suit.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff contended res judicata does not bar the second action because the original suit was premature: at the time of the first suit a "serious impairment" (an essential element under § 3135) had not yet accrued, and the serious impairment allegedly arose on November 27, 1985, when the metacarpophalangeal joint was replaced with a prosthesis.

Defendant's Arguments

Defendant maintained that the residual effects from plaintiff's injury and surgeries were minimal.
Earlier, in the first action, defendant moved for summary disposition on the ground that the plaintiff's injury did not constitute a serious impairment of a bodily function under § 3135 as a matter of law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
VanDeventer v Michigan Nat'l Bank, 172 Mich. App. 456, 463; 432 N.W.2d 338 (1988)	Defines doctrine of res judicata and its elements: (1) prior decision on the merits, (2) issues resolved in the first action, and (3) actions between the same parties or their privies.	The court relied on VanDeventer to state the elements required for res judicata to apply and to frame the analytical checklist used to evaluate whether the second action was barred.
Sherrell v Bugaski, 169 Mich. App. 10; 425 N.W.2d 707 (1988)	Applied res judicata to bar a second action where the plaintiff's damages later changed; explained that a change in facts does not necessarily defeat res judicata absent important remedial policy considerations.	The court agreed with the Sherrell panel's reasoning and applied it here, concluding that allowing successive suits as an injury worsened would improperly permit repeated litigation on the same issue.
Gose, supra	Referenced in Sherrell as an instance where change in fact may cause evasion of res judicata in areas with important remedial considerations (worker's compensation).	The court cited Sherrell's reliance on Gose to distinguish the present personal injury context from contexts (like worker's compensation) where remedial policy might justify reopening or recalculating damages.
Detroit v Nortown Theatre, Inc, 116 Mich. App. 386, 393; 323 N.W.2d 411 (1982), lv den 418 Mich. 875 (1983)	Stands for the proposition that a plaintiff may not be barred from instituting a subsequent action under § 3135 based on a different injury arising from the same accident (arguably different evidence).	The court cited this case to acknowledge that a subsequent suit based on a genuinely different injury might not be barred, but concluded that the plaintiff's second action here was based on the same injury and thus distinguishable.

Court's Reasoning and Analysis

The panel began by summarizing the factual and procedural history and then stated the elements of res judicata, citing VanDeventer for the three-part test. It examined the prior litigation history: plaintiff's first suit was dismissed on the merits for failure to establish a serious impairment under § 3135, and appeals were pursued and denied.

The court then considered controlling authority, particularly Sherrell v Bugaski, which had addressed a similar situation where a plaintiff's condition later worsened after an adverse merits ruling. The Sherrell panel had held that res judicata barred a second action despite changed facts regarding damages, except in areas where important remedial policies (illustrated by Gose in the worker's compensation context) might allow recalculation or reopening.

Applying Sherrell, the court concluded that permitting plaintiffs to file successive actions as an injury progressively worsened would allow repeated litigation on the same issue and burden the courts with successive appeals on the same threshold question (whether a "serious impairment" exists under § 3135). The court distinguished situations where a later suit is based on a different injury arising from the same accident (citing Detroit v Nortown Theatre) but found that here the second action was based on the same injury already litigated.

Because the first action was decided on the merits, the issues were resolved, and the parties were the same, the court determined that res judicata barred the second suit. The circuit court's grant of summary disposition under MCR 2.116(C)(7) on res judicata grounds was therefore proper.

Holding and Implications

Holding: The Court of Appeals affirmed the circuit court's order granting defendant's motion for summary disposition on res judicata grounds.

Implications: The direct consequence is that plaintiff's second action—alleging that the "serious impairment" arose later when the metacarpophalangeal joint was replaced—was barred by res judicata because it concerned the same injury and the same parties and the first action was resolved on the merits. The opinion applies existing precedent to prevent successive suits based on the same injury as it later worsens; the opinion does not state that it establishes a new legal rule beyond applying those precedents.

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MOORE v WICKS

PER CURIAM.

Plaintiff appeals as of right from the circuit court's order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) on the grounds of res judicata. We affirm.

According to the parties, on April 9, 1983, plaintiff's middle finger of her right hand was lacerated and broken in an automobile accident, in which defendant was the owner and driver of the other vehicle. Treatment of the injury was unsuccessful, and on April 10, 1984, plaintiff underwent surgery to excise a bone fragment from the metacarpophalangeal joint. According to plaintiff, the condition of her finger continued to deteriorate. On November 27, 1985, after traumatic arthritis of the joint was diagnosed, surgery was performed to remove the joint and replace it with a plastic finger joint prosthesis. Although plaintiff obtained some relief, additional surgery was performed on her right hand on June 26, 1986. According to plaintiff, even after these surgeries and other treatment, she had not yet fully recovered. Defendant contends that the residual effects from plaintiff's injury and surgeries are minimal.

Plaintiff filed her original complaint against defendant on September 28, 1983. After mediation in October, 1984, the case was removed to the district court. On March 8, 1985, defendant moved for summary disposition on the ground that plaintiff's injury did not constitute a serious impairment of a bodily function under MCL 500.3135; MSA 24.13135 as a matter of law. The district court granted defendant's motion on March 27, 1985, and the circuit court upheld the district court's order on appeal. This Court denied plaintiff's application for leave to appeal, as did the Michigan Supreme Court subsequent to the plaintiff's last surgery. On January 8, 1987, plaintiff again filed suit against defendant for her injury, but she alleged that the "serious impairment" arose in 1985 when her metacarpophalangeal joint was replaced with the prosthesis.

Plaintiff contends on appeal that res judicata does not bar her second action. She claims that her original suit was premature in the absence of a serious impairment, an essential element of her cause of action. Thus, plaintiff argues, she could not properly proceed before her serious impairment accrued on November 27, 1985.

Under the doctrine of res judicata, where two parties have litigated a claim and it has resulted in a final judgment, neither party may relitigate that same claim. VanDeventer v Michigan Nat'l Bank, 172 Mich. App. 456, 463; 432 N.W.2d 338 (1988). For the doctrine to apply, (1) there must have been a prior decision on the merits, (2) the issues must have been resolved in the first action, and (3) both actions must be between the same parties or their privies. Id. at 464.

A panel of this Court considered this issue in Sherrell v Bugaski, 169 Mich. App. 10; 425 N.W.2d 707 (1988). In Sherrell, the plaintiff had sued the defendants for injuries, including severe headaches, lower back pain and shock to her nervous system, which she sustained in an automobile accident. Id. at 12. The trial court granted the defendants' summary disposition motion on the basis that there was no genuine issue of material fact on whether a serious impairment of bodily function existed under § 3135. This Court affirmed the trial court's decision, but the plaintiff subsequently discovered that she had a herniated disk, allegedly as a result of the accident. She again filed a negligence action, and defendants again moved for summary disposition, but on the ground that res judicata and the statute of limitations barred the second suit. On appeal from the trial court's denial of the defendant's motion, this Court concluded that res judicata did indeed bar the plaintiff's second action. Id. The Court pointed out that the same parties were involved, that the first action was decided on the merits, and that the same matter raised in the second suit had been previously adjudicated. Id. at 13-14. The Court explained its rejection of the plaintiff's argument on the latter factor:

The previous suit was dismissed expressly on the issue of lack of damages. Simply because the facts on the issue of plaintiff's damages have changed, the application of res judicata is not barred. The only instance where a change in fact may cause an evasion of the application of res judicata is in an area of law where there are important competing considerations, such as worker's compensation. See Gose, supra, p 176. In worker's compensation cases, the remedial purpose of the statute is to maintain the fiscal integrity of persons whose wage-earning ability has been suspended or terminated. Id. Thus, an injury discovered after a lawsuit would be considered in recalculating a plaintiff's damages and res judicata would not apply to bar such recalculation.

No such important remedial policy applies in the present personal injury case. [ 169 Mich. App. 14-15.]

Under the facts of this case, we agree with the panel in Sherrell. To hold otherwise would allow a plaintiff to file a succession of actions based on the same injury as it worsens to the point where it finally becomes a serious impairment under § 3135. Until that point was reached, our courts would be required to consider a succession of appeals on that issue. While a plaintiff may not be barred from instituting a subsequent action under § 3135 based on a different injury arising from the same accident, and thus arguably different evidence, see Detroit v Nortown Theatre, Inc, 116 Mich. App. 386, 393; 323 N.W.2d 411 (1982), lv den 418 Mich. 875 (1983), here, plaintiff's second action is based on the same injury on which the first action was based. The trial court properly granted defendant's motion for summary disposition on the basis of res judicata.

Affirmed.

MOORE v. WICKS