                          STATE OF MICHIGAN

                           COURT OF APPEALS



DONALD NOLEN,                                                       UNPUBLISHED
                                                                    October 18, 2016
               Plaintiff-Appellant,

v                                                                   No. 327785
                                                                    Oakland Circuit Court
MARK PATRICK HASTINGS and ELIZABETH                                 LC No. 2014-142344-NI
ANN HASTINGS,

               Defendants-Appellees.


Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

       In this negligence action for damages resulting from an automobile accident, plaintiff
appeals the trial court order that granted defendants’ motion for summary disposition. For the
reasons provided below, we reverse.

         Plaintiff sued defendants to recover damages in relation to an automobile accident.
Plaintiff sued defendant Mark Patrick Hastings, who was under the influence of alcohol at the
time of the accident, for negligence for rear-ending his vehicle that had been stopped at a red
light. Plaintiff sought damages from defendant Elizabeth Ann Hastings under a theory of owner
liability because she was the owner of the car that Mark was driving.

        Defendants moved for summary disposition under MCR 2.116(C)(10) and argued that
plaintiff had failed to establish that he had suffered a “serious impairment of body function” as
contemplated by MCL 500.3135(1). Specifically, defendants contended that

       [t]he sole issue for purposes of this motion is the third prong [for establishing
       whether an injury rises to the level of a serious impairment of body function under
       Michigan’s no-fault act, MCL 500.3101 et seq.] That is, whether Plaintiff has
       established that any of the alleged impairments have affected his general ability
       to lead his normal life. [Emphasis added.]

While noting that plaintiff did not pursue any “aggressive treatment” for his claimed injuries,
defendants also argued that plaintiff’s limitations of his regular life activities were essentially
self-imposed and were not the result of doctor-imposed restrictions.



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       Plaintiff responded to the motion and argued that ever since the vehicle accident, he has
not been the same. Plaintiff contended that his life had changed dramatically since the motor
vehicle accident, specifically because of the pain he had in his neck, he could not participate in
his recreational activities as much as he had before, which included reading, riding his
motorcycle, golfing, and flying his plane. Further, plaintiff testified that the pain in his neck
made it difficult to sleep, such that he now awoke several times a night.

       When ruling from the bench, the trial court stated, in relevant part:

               The court, having reviewed the parties respective motion, response, briefs
       in support, attached documentary evidence, and the court record in this matter, as
       well as having considered the oral arguments presented by the parties to the court
       this morning, finds that while a factual dispute exists concerning the nature and
       extent of plaintiff’s injuries, the dispute is not material to the determination of
       whether plaintiff has suffered a serious impairment of body function.

              Thus, whether plaintiff suffered a serious impairment of body function is a
       question of law for the court to decide.

              It is the opinion of this court that plaintiff has failed to establish that he
       sustained a serious impairment of body function. That is, an objectively
       manifested impairment of an important body function that affects the person’s
       general ability to lead his or her normal life.

              The Court notes that while there may exist a medically identifiable or
       physiological basis for the pain, self-imposed restrictions because of pain, in and
       of themselves fail because there is no medical expertise supporting the restrictions
       which expertise would, in all likelihood, take into consideration the source of the
       pain before restrictions are imposed.

               Consequently, the court grants defendant’s [sic] motion for summary
       disposition pursuant to MCR 2.116(C)(10) and dismisses the plaintiff’s complaint
       in its entirety and the court will enter its order accordingly. [Emphasis added;
       citations omitted.]

       Importantly, for the critical, emphasized portion of the opinion, the trial court relied
solely on this Court’s opinion in McDanield v Hemker, 268 Mich App 269; 707 NW23d 211
(2005). In McDanield, this Court applied footnote 171 from the Supreme Court’s opinion


1
  In Kreiner, the Court provided a “nonexhaustive list of objective factors that may be of
assistance in evaluating whether the plaintiff’s ‘general ability’ to conduct the course of his
normal life has been affected.” Kreiner, 471 Mich at 133. One of the provided factors was
factor (d), “the extent to any residual impairment.” Id. Footnote 17 was attached to this factor
and stated, “Self-imposed restrictions, as opposed to physician-imposed restrictions, based on
real or perceived pain do not establish this point.” Id. at 133 n 17.


                                                -2-
Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004). McDanield, 268 Mich App at 282-
284. But Kreiner was later overruled by McCormick v Carrier, 487 Mich 180; 795 NW2d 517
(2010). Thus, plaintiff’s main thrust on appeal is that the trial court erred as a matter of law
because, while McDanield had not been expressly overruled, the principle of law it relied upon
has been rejected.

                                 I. STANDARDS OF REVIEW

       As recently expressed by this Court:

               This Court reviews a trial court’s decision on a motion for summary
       disposition de novo. When reviewing a motion for summary disposition under
       MCR 2.116(C)(10), this Court considers the affidavits, pleadings, depositions,
       admissions, and other evidence submitted by the parties in the light most
       favorable to the party opposing the motion to determine whether a genuine issue
       of material fact exists. The motion is properly granted if there is no genuine issue
       regarding any material fact and the moving party is entitled to judgment as a
       matter of law. [Laster v Henry Ford Health Sys, ___ Mich App ___; ___ NW2d
       ___ (Docket No. 324739, issued August 23, 2016), slip op, p 4 (citations and
       quotation marks omitted).]

Further, the proper interpretation and application of the no-fault act is a question of law that we
review de novo. Southeast Mich Surgical Hosp v Allstate Ins Co, ___ Mich App ___; ___
NW2d ___ (Docket No. 323425, issued August 9, 2016), slip op, p 2.

                                          II. ANALYSIS

       Under Michigan’s no-fault act, “insureds may recover directly from their insurers,
without regard to fault, for qualifying economic losses arising from motor vehicle incidents.”
McCormick, 487 Mich at 189.

               In exchange for the payment of these no-fault economic loss benefits from
       one’s own insurance company, the Legislature limited an injured person’s ability
       to sue a negligent operator or owner of a motor vehicle for bodily injuries. In
       particular, the Legislature significantly limited the injured person’s ability to sue a
       third party for noneconomic damages, e.g., pain and suffering. No tort suit
       against a third party for noneconomic damages is permitted unless the injured
       person “has suffered death, serious impairment of body function, or permanent
       serious disfigurement.” [Kreiner, 471 Mich at 115, overruled on other grounds
       McCormick, 487 Mich 180, quoting MCL 500.3135(1).]

        At issue in this case is whether plaintiff’s suit is barred because he failed to meet the
threshold of suffering a “serious impairment of body function,” which the Legislature has
defined as “an objectively manifested impairment of an important body function that affects the
person’s general ability to lead his or her normal life.” MCL 500.3135(5). Thus, there are “three
prongs that are necessary to establish a ‘serious impairment of body function’: (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, 487 Mich at 195 (footnote omitted). At the
                                                -3-
trial court, defendants moved for (and the trial court granted) summary disposition based on the
assertion that plaintiff could not meet the third requirement of having the injury affect his general
ability to lead his normal life. On appeal, defendants also argue that plaintiff has failed to meet
the other two requirements as well. But because those issues were not the bases for defendants’
motion for summary disposition at the trial court, we will limit our review to the “sole issue”
they did raise: “whether Plaintiff has established that any of the alleged impairments have
affected his general ability to lead his normal life.”

        In McCormick, the Court went to great lengths to express its disagreement with the
Kreiner Court’s interpretation of what constitutes a “serious impairment of body function.” Id.
at 203-209. As relevant to this appeal, the Court specifically rejected the Kreiner Court’s
adoption of a series of “extra-textual” factors2 used to compare a person’s lifestyle before the
subject accident and after. Id. at 207-208. The McCormick Court held that “[b]ecause the
factors adopted by the Kreiner majority are not based in the statutory text, and this Court’s role is
to apply the unambiguous statutory language, not improve it, we hold that the majority erred by
adopting them.” Id. at 208.

        In relation to its factor (d) that addressed “the extent of any residual impairment,” the
Kreiner Court added footnote 17, which stated, “Self-imposed restrictions, as opposed to
physician-imposed restrictions, based on real or perceived pain do not establish this point.”
Kreiner, 471 Mich at 133 n 17. It is the reliance on this language that resulted in the trial court’s
error in the present case.

        As the McCormick Court made abundantly clear, the factors the Kreiner Court employed
to evaluate whether an impairment has “affect[ed] the person’s general ability to lead his or her
normal life” are no longer of value and should not be relied on. Such an acknowledgment is
important here because the trial court, when it granted defendants’ motion for summary
disposition, relied solely on this Court’s decision in McDanield, which in turn relied on the
Kreiner factors.

        In McDanield, 268 Mich App at 270, this Court was asked to determine whether the
plaintiff had incurred a serious impairment of body function as set forth in MCL 500.3135(1). In
evaluating whether the plaintiff’s general ability to lead her normal life was affected by the
impairment, the McDanield Court turned to the Kreiner Court’s decision, particularly citing in
detail the factors that the Kreiner Court had implemented. McDanield, 268 Mich App at 274-
275. After initially reviewing the first four factors that the Kreiner Court adopted and applying
them to the facts in McDanield, the McDanield Court set forth the following analysis:

              We have intentionally left factor d, “the extent of any residual
       impairment,” for last because it is directly tied to the footnote that appears to have


2
  “These factors are: ‘(a) the nature and extent of the impairment, (b) the type and length of
treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment,
and (e) the prognosis for eventual recovery.’ ” McCormick, 487 Mich at 208, quoting Kreiner,
471 Mich at 133.


                                                -4-
been the sole basis for the trial court’s resolution of this case, and which has
created much confusion and contention in the bench and bar of this state.
[Kreiner, 471 Mich] at 133 n 17. We, hopefully, will clarify the meaning of the
footnote in a manner that is consistent with the intention of our Supreme Court in
drafting the language contained therein.

        Directly after reciting factor d, the Kreiner Court placed footnote 17, and
the footnote provides, “Self-imposed restrictions, as opposed to physician-
imposed restrictions, based on real or perceived pain do not establish this point.”
Read in the context of the placement of the footnote, the footnote can be
construed as providing, “Self-imposed restrictions, as opposed to physician-
imposed restrictions, based on real or perceived pain do not establish [the extent
of any residual impairment].” The necessary corollary of this language is that
physician-imposed restrictions, based on real or perceived pain, can establish the
extent of a residual impairment.

        First, we think it necessary to define what is being spoken about when the
Court refers to “residual” impairment. The term “residual” means “pertaining to
or constituting a remainder; remaining; leftover” or “something that remains to
discomfort or disable a person following an illness, injury, operation, or the
like[.]” Random House Webster’s College Dictionary (2001). The impairment
here can be best described as the inability of McDanield, in many situations, to
position or maneuver her upper body, extremities, and neck and head in such a
way that avoids pain from ligamentous injuries of the cervical spine, thereby
interfering with or precluding various activities in McDanield’s life. This claimed
impairment is continuing or ongoing and remains to discomfort McDanield
following the injury; therefore, it qualifies as a “residual” impairment. Consistent
with the Kreiner footnote, the extent of this residual impairment cannot be proven
by way of self-imposed restrictions based on real or perceived pain. Stated
differently, McDanield cannot establish the extent of her residual impairment by
merely claiming that she has restricted herself from engaging in activities or
making certain movements because she experiences pain. We note that a self-
imposed restriction not based on real or perceived pain can be considered. If a
plaintiff restricts himself or herself from doing something because the plaintiff is
physically incapable of doing so, but not on the basis of pain, the restriction
should be subject to consideration in determining the extent of any residual
impairment. For example, if a right-handed person’s right arm is in a full cast,
and that person claims to be restricted from playing sports that involve throwing a
ball, the self-imposed restriction would suffice.

        We think it evident that our Supreme Court crafted footnote 17 in Kreiner,
in the context of establishing the extent of any residual impairment, because the
nature of pain tends to be subjective and therefore inherently questionable. While
there may exist a medically identifiable or physiological basis for the pain, self-
imposed restrictions because of pain, in and of themselves, fail because there is
no medical expertise supporting the restrictions, which expertise would, in all
likelihood, take into consideration the source of the pain before restrictions are

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       imposed. That said, if there are physician-imposed restrictions based on real or
       perceived pain, footnote 17 does not require that the doctor offer a medically
       identifiable or physiological basis for imposing the restrictions. [McDanield, 268
       Mich App at 282-284 (emphasis altered).]

        However, as already discussed, the Michigan Supreme Court in McCormick expressly
rejected the factors that the Kreiner Court adopted to evaluate whether an individual’s
impairment has affected that person’s general ability to lead his or her normal life, which
included the Kreiner Court’s statement that “[s]elf-imposed restrictions, as opposed to physician-
imposed restrictions” will not support a conclusion that a person’s general ability to lead his or
her normal life has been affected by any impairment. These factors and the limitation on self-
imposed restrictions were reiterated by the Court in McDanield. Therefore, the trial court erred
when it expressly cited to and relied on McDanield for this proposition when it granted
defendants’ motion for summary disposition.

        As a result, we address whether there is a question of fact regarding if plaintiff’s injuries
affected his general ability to lead his normal life under the appropriate legal framework. The
Michigan Supreme Court offered the following guidance for courts undertaking such an analysis:

                [T]he plain text of the statute and these [dictionary] definitions
       demonstrate that the common understanding of to “affect the person’s ability to
       lead his or her normal life” is to have an influence on some of the person’s
       capacity to live in his or her normal manner of living. By modifying “normal
       life” with “his or her,” the Legislature indicated that this requires a subjective,
       person- and fact-specific inquiry that must be decided on a case-by-case basis.
       Determining the effect or influence that the impairment has had on a plaintiff’s
       ability to lead a normal life necessarily requires a comparison of the plaintiff’s life
       before and after the incident. [McCormick, 487 Mich at 202.]

The McCormick Court cautioned that a person’s general ability to lead his or her normal life
need not be destroyed, only affected. Id. Additionally, the plain language of MCL 500.3135(5)
requires only that “some of the person’s ability to live in his or her normal manner of living
[have] been affected, not that some of the person’s normal manner of living has itself been
affected.” Id. Accordingly, there is no “quantitative minimum as to the percentage of a person’s
normal manner of living that must be affected.” Id. at 203. Finally, the McCormick Court
clearly stated that the statute does not provide for a temporal limitation regarding how long an
impairment must endure before it can have an impact on a person’s “general ability to live his or
her normal life.” Id. In so ruling, the McCormick Court noted that there is no requirement that
an impairment of body function be permanent. Id.

         Here, plaintiff testified that he was born on June 29, 1947, and that he resides in
Clarkston, Michigan. Plaintiff is retired from General Motors but works seasonally for the
Oakland County Sheriff’s Department as a marine deputy. It is not disputed that plaintiff’s
injuries did not affect his ability to continue his part-time work. Plaintiff also reported no
problems with his personal care needs, and his relationship with his significant other has not
been impacted by his injuries. However, evidence was presented that showed that plaintiff’s
ability to partake in his normal recreational activities was curtailed.

                                                -6-
        Plaintiff is an owner of a motorcycle as well as a co-owner of a small plane. Plaintiff’s
neck “bothers [him] all the time” with a constant dull pain, which occasionally manifests as a
sharp pain, “like a needle sticking in [his neck],” when he turns his neck. When asked what
limitations he has because of his neck pain, plaintiff explained:

               I’ve limited my flying. The vibration from the plane bothers my neck and
       makes it hurt. The bumps make it hurt. I’ve limited my motorcycle riding to
       about two hours this summer because the vibration makes my neck hurt. I don’t
       limit my driving, but it’s becoming a—not becoming a problem, it is a problem,
       to try and turn around and look for traffic or to back up, stuff like that. I don’t
       drive for a long period of time. I have to stop every couple of hours, get out,
       move around a little bit because my neck hurts.

               I used to like work on my airplane and get underneath it when it was time
       to inspect it and clean it and stuff like that, and I can’t lay on a creeper and raise
       my head anymore. I have trouble sleeping. I wake up about four, five times a
       night, because when I move I get a sharp pain in [his neck] and it wakes me up.
       Working around the house is—I mean, I still have problems with it. I’ve got to be
       careful what I do.

               That’s all I can think of right now.

        Before the accident, plaintiff would fly approximately 50 to 60 hours a year, but he has
limited that to about 20 hours a year because of the vibration in the plane, and having to turn his
head right and left and looking up and down is difficult. And with respect to his motorcycle
riding, plaintiff before the accident would ride anywhere between 2,000 and 4,000 miles. But
after the accident, he only had been able to tolerate 200 miles per year, as riding is “miserable.”
Indeed, in the summer of 2014 plaintiff only rode his motorcycle twice, each for a short period of
time. Additionally, plaintiff golfed approximately once a week prior to the accident but now is
only able to tolerate golfing once a month due to the pain in his neck. Further, plaintiff stated
that even mundane, light activities, such as reading and sleeping, have been negatively affected
by his neck pain.

        Therefore, after viewing all of the evidence in a light most favorable to plaintiff as the
non-moving party, we hold that there is a question of fact whether the third prong of the
subsection 3135(5) analysis was satisfied where the impairment had a significant influence on
how plaintiff conducted his life. McCormick, 487 Mich at 202. Plaintiff suffers from constant
pain following the subject motor vehicle accident, and his participation in recreational activities
such as flying his plane, motorcycle riding, and golfing has been significantly curtailed because
of his pain. Further, his basic activities of living, such as sleeping, driving a car, and reading
have been negatively affected as well. As a result, there is a question of fact for a jury to resolve
whether “plaintiff has shown that the impairment affected his general ability to lead his normal
life because it influenced some of his capacity to live in his normal, pre-incident manner of
living.” Id. at 218. The trial court erred when it determined that these “self-imposed restrictions
because of pain” were fatal to plaintiff’s claim; indeed, these types of restrictions are now no
longer a bar under McCormick. We stress that our holding is limited solely to whether there was
sufficient evidence to show that plaintiff’s injuries affected his general ability to lead his normal

                                                -7-
life. Because they were not part of the instant motion for summary disposition, we offer no
opinion on whether there was sufficient evidence to show that the other two requirements ([1] an
objectively manifested impairment [2] of an important body function) for establishing a serious
impairment of body function were met.

       Reversed. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                           /s/ Henry William Saad
                                                           /s/ Kathleen Jansen
                                                           /s/ Michael J. Kelly




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