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Docket Number

Docket No. 65649.

Attorney(S)

Rappleye, Wilkins Arcaro (by Viola A. Kaminski), for plaintiff. Kelly, Kelly Kelly (by William J. Kelly), for defendant.

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: McDonald v. Oberlin (Michigan Court of Appeals, July 7, 1983)

Factual and Procedural Background

Plaintiff filed suit to recover damages for noneconomic losses arising from an automobile accident. After the defendant moved for summary judgment, the trial court granted summary judgment in favor of the defendant under GCR 1963, 117.2(3) (no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law). Plaintiff appealed as of right.

Plaintiff alleged that she had sustained a "serious impairment of a body function" within the meaning of the Michigan automobile no-fault statute (MCL 500.3135; MSA 24.13135), a statutory threshold required to retain nonintentional tort liability for noneconomic loss. There was no factual dispute regarding the extent of plaintiff's injuries in the record before the court. The trial court decided the threshold question as a matter of law, relying on the parties' briefs, plaintiff's deposition, and the court file. Plaintiff later advanced on appeal that she had been entirely disabled from work for three months due to a "severe dorsal strain" and that she had been released for only "light duty" when she returned to work; the court found that the report containing the diagnosis was not in the lower court file and that plaintiff's deposition testimony did not establish the claimed incapacity.

Legal Issues Presented

Whether, as a matter of law, the plaintiff suffered a "serious impairment of a body function" sufficient to meet the statutory threshold for maintaining a noneconomic-loss tort claim under MCL 500.3135; MSA 24.13135.
Whether summary judgment under GCR 1963, 117.2(3) was properly granted where there was no genuine issue as to any material fact regarding the extent of the plaintiff's injuries.
Whether the trial court's grant of summary judgment was based on the correct procedural ground (the plaintiff argued the court used GCR 1963, 117.2(1) in error).

Arguments of the Parties

Plaintiff's Arguments

Plaintiff alleged that she suffered a "serious impairment of a body function" as required to pursue noneconomic-loss tort damages under the Michigan no-fault statute.
On appeal, plaintiff asserted she was entirely disabled from work for three months due to a "severe dorsal strain" (a supporting medical report was not in the lower court file).
Plaintiff further contended that when she returned to work after three months she was released only for "light duty" by her physician (the record in the lower court proceeding did not establish this and her deposition testimony was contrary).
Plaintiff also suggested the trial court had granted summary judgment under GCR 1963, 117.2(1) (failure to state a claim) rather than under GCR 1963, 117.2(3).

Defendant's Arguments

Defendant moved for summary judgment under GCR 1963, 117.2(3), asserting there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. The motion implicitly argued the injuries did not meet the statutory threshold for noneconomic-loss tort recovery.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22 (1982)	When there is no factual dispute regarding the extent of a plaintiff's injuries, the trial court is to decide as a matter of law whether the plaintiff has suffered a "serious impairment of a body function."	The court applied Cassidy to justify deciding, as a matter of law, whether plaintiff's injuries met the statutory threshold because there was no factual dispute about the injuries in the record.
Trail Clinic, PC v. Bloch, 114 Mich. App. 700, 319 N.W.2d 638 (1982)	Medical reports or evidence not included in the lower court file generally cannot be relied upon or used to bolster a party's claim on appeal.	The court cited Trail Clinic to hold that the plaintiff could not rely on a medical report (diagnosing "severe dorsal strain") that was not part of the lower court record in trying to bolster her claim on appeal.
People v. Gibbs, 120 Mich. App. 485, 328 N.W.2d 65 (1982)	Supporting authority for the proposition that items not in the lower court record are not available on appeal.	The court relied on Gibbs (alongside Trail Clinic) to explain that the diagnostic report absent from the lower court file could not be used on appeal.
Bob v. Holmes, 78 Mich. App. 205, 259 N.W.2d 427 (1977)	The party opposing a summary judgment motion must present some proof to establish the existence of a genuine issue of material fact.	The court invoked Bob v. Holmes to state the plaintiff's burden in opposing the motion and concluded plaintiff failed to present proof showing a genuine issue of material fact regarding meeting the statutory threshold.

Court's Reasoning and Analysis

The court began its analysis by identifying the governing statutory threshold: under the Michigan automobile no-fault law (MCL 500.3135; MSA 24.13135), nonintentional tort liability for noneconomic loss remains only if the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. The plaintiff alleged serious impairment of a body function.

Applying Cassidy v. McGovern, the court recognized that when the extent of the plaintiff's injuries is not in factual dispute, the question whether those injuries constitute a "serious impairment of a body function" is for the court to decide as a matter of law. Here, the trial court had no factual dispute before it regarding the extent of injuries (doctors examining the plaintiff were not deposed and the record consisted of briefs, the plaintiff's deposition, and the court file), so deciding the legal threshold question was appropriate.

The court examined the deposition and the court file and concluded the record showed only some pain and discomfort, without significant effect on the plaintiff's mode of living. The plaintiff's later assertion on appeal that she had been entirely disabled for three months rested on a diagnostic report that was not part of the lower court record; the court held (citing Trail Clinic and Gibbs) that evidence not included in the lower court file could not be used on appeal to bolster the claim.

Further, the plaintiff's deposition testimony did not establish the claimed incapacity or restriction to "light duty." The deposition indicated the plaintiff may have worked sporadically during the three-month period, was not confined to bed, and was able to function normally and engage in normal activities. Based on that record, the court concluded the degree of injury was insufficient as a matter of law to meet the statutory minimum threshold.

The court also addressed the plaintiff's procedural misunderstanding: the trial court's ruling and the defendant's motion were under GCR 1963, 117.2(3) (summary judgment for lack of genuine factual dispute), not GCR 1963, 117.2(1) (failure to state a claim). In that context, the court reiterated the burden on the party opposing a summary judgment motion (citing Bob v. Holmes): the opposing party must present some proof demonstrating a genuine issue of material fact. Because plaintiff presented no such proof in the record, summary judgment was proper.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the trial court's grant of summary judgment for the defendant under GCR 1963, 117.2(3), concluding as a matter of law that the plaintiff's injuries, as shown in the record, did not constitute a "serious impairment of a body function" sufficient to meet the statutory threshold for noneconomic-loss tort recovery.

Implications: The direct effect of the decision is the termination of plaintiff's noneconomic-loss tort claim against the defendant by summary judgment. The court applied existing statutory standard and precedent to the record facts and did not announce or discuss any new legal rule or broader legal change.

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McDONALD v OBERLIN

PER CURIAM.

Plaintiff filed suit seeking to recover damages for noneconomic losses arising out of an automobile accident. The trial court granted summary judgment in favor of defendant pursuant to GCR 1963, 117.2(3) (no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law). Plaintiff appeals as of right.

Following adoption of the Michigan automobile no-fault insurance law, a person remains subject to nonintentional tort liability for noneconomic loss caused by his use of a motor vehicle only if the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. MCL 500.3135; MSA 24.13135. In the instant case, plaintiff alleged that she suffered serious impairment of a body function. When there is no factual dispute regarding the extent of a plaintiff's injuries, the trial court is to decide as a matter of law whether the plaintiff has suffered a serious impairment of a body function. Cassidy v McGovern, 415 Mich. 483, 488; 330 N.W.2d 22 (1982).

There is no factual dispute regarding the extent of plaintiff's injuries. The doctors who examined plaintiff were not deposed prior to the summary judgment motion. The trial court based its decision on the parties' briefs, plaintiff's deposition, and the remainder of the court file. In accordance with Cassidy, the trial court properly decided as a matter of law whether plaintiff had suffered a serious impairment of a body function. Plaintiff complained in her deposition of some pain and discomfort as a result of her injury. This injury does not appear to have affected plaintiff's mode of living in any significant way. On appeal, plaintiff asserts that she was entirely disabled from work for three months due to "severe dorsal strain". The report containing that diagnosis, however, is not included in the lower court file and, therefore, it cannot be used by plaintiff to bolster her claim on appeal. See Trail Clinic, PC v Bloch, 114 Mich. App. 700, 708-709; 319 N.W.2d 638 (1982); People v Gibbs, 120 Mich. App. 485, 491; 328 N.W.2d 65 (1982).

Plaintiff contends further on appeal that when she returned to work three months after the accident, she was released for only "light duty" by her physician. This was not established at the lower court proceeding. Indeed, plaintiff's deposition testimony is contrary to that position. Although she did not specifically recall whether she had worked sporadically during the three-month period, she acknowledged that she may have gone to work for a couple of days. Additionally, plaintiff was not confined to bed and was able to function normally and engage in her normal activities. Plaintiff was not incapacitated by her discomfort, nor did it interfere with her normal lifestyle. Reviewing the record, we find that the trial court properly concluded as a matter of law that plaintiff failed to meet the minimum threshold requirement.

Plaintiff's second argument is based upon a factual misconception. Plaintiff argues that the trial court improperly granted summary judgment under GCR 1963, 117.2(1) (failure to state a claim upon which relief can be granted). Defendant's motion and the lower court opinion and order, however, were based upon GCR 1963, 117.2(3) (no genuine issue of material fact and the moving party is entitled to judgment as a matter of law). GCR 1963, 117.2(3) is designed to test whether factual support exists for the plaintiff's claim. The party opposing the motion must present some proof to establish the existence of a genuine issue of material facts. Bob v Holmes, 78 Mich. App. 205, 212; 259 N.W.2d 427 (1977). There was no dispute as to the injuries sustained in the present case. The issue was whether those injuries met the requisite legal threshold. Plaintiff did suffer some discomfort due to the accident; however, the degree of the injury was insufficient to meet the minimum threshold requirement. Summary judgment was properly entered in defendant's favor.

Affirmed.

McDONALD v. OBERLIN