Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  May 15, 2020                                                                   Bridget M. McCormack,
                                                                                               Chief Justice

  159878                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
  HELEN FAYE LINGENFELTER,                                                         Richard H. Bernstein
           Plaintiff-Appellant,                                                    Elizabeth T. Clement
                                                                                   Megan K. Cavanagh,
                                                                                                    Justices
  v                                                      SC: 159878
                                                         COA: 343292
                                                         Monroe CC: 17-139619-NI
  FARM BUREAU GENERAL INSURANCE
  COMPANY,
           Defendant,
  and
  BETTY KRIEGER,
             Defendant-Appellee.
  ______________________________________/

        On order of the Court, the application for leave to appeal the May 23, 2019
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

         CAVANAGH, J. (dissenting).

         I respectfully dissent from this Court’s order denying plaintiff’s application for
  leave to appeal.

         On May 6, 2016, plaintiff was riding in the front passenger seat of her fiancé’s
  vehicle. Defendant ran a red light and struck the vehicle on the front passenger side,
  causing significant damage to the vehicle and deploying its airbags. There is no dispute
  that defendant caused the accident. Plaintiff, a retiree in her mid-70s, was taken by
  ambulance to the hospital where she was summarily discharged after CT scans and x-rays
  did not show any fractures or bleeding. However, plaintiff contends that the accident
  caused injuries to her right shoulder, neck, and back, as well as headaches and radiating
  pain.

          Plaintiff filed a claim for first-party personal protection insurance benefits with
  Farm Bureau Insurance Company and a third-party negligence claim against defendant.
  At issue in this appeal is only plaintiff’s third-party negligence claim. The trial court
  granted defendant summary disposition pursuant to MCR 2.116(C)(10), finding that
  plaintiff did not sustain an objectively manifested impairment that affected her general
  ability to lead her normal life. Plaintiff appealed, and the Court of Appeals majority
  affirmed over one judge’s dissent.
                                                                                          2

        A motion under MCR 2.116(C)(10) is properly granted where there is no genuine
issue of material fact. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160 (2019).
“A genuine issue of material fact exists when the record leaves open an issue upon which
reasonable minds might differ.” Id. (quotation marks and citation omitted). The
evidence must be viewed in a light most favorable to the nonmoving party. Id. This
Court reviews a trial court’s decision on a motion for summary disposition de novo. Id.
at 159.

       Michigan’s no-fault act, MCL 500.3101 et seq., limits a defendant’s tort liability
for noneconomic damages resulting from a motor vehicle accident except where the
“injured person has suffered death, serious impairment of body function, or permanent
serious disfigurement.” MCL 500.3135(1). Plaintiff alleges that as a result of the
accident caused by defendant she has suffered serious impairment of body function and,
therefore, is entitled to recover noneconomic damages. At the relevant times in this case,
the no-fault act defined “serious impairment of body function” as an (1) “objectively
manifested impairment,” (2) “of an important body function,” (3) “that affects the
person’s general ability to lead his or her normal life.” MCL 500.3135(5) as amended by
2012 PA 158; see also McCormick v Carrier, 487 Mich 180, 195 (2010). 1

        In this case, the trial court concluded that there was no genuine issue of material
fact concerning the first and third prong of the “serious impairment of a body function”
definition, and the Court of Appeals majority agreed. The sticking point seemed to be
that before the accident plaintiff had an extensive history of medical problems. Notably,
however, the aggravation of a preexisting condition can constitute a compensable injury
under the no-fault act. Fisher v Blankenship, 286 Mich App 54, 63 (2009). In my
opinion, preexisting conditions or not, viewed in a light most favorable to plaintiff, there
was a question of fact concerning whether plaintiff suffered an objectively manifested
impairment that affected her ability to lead her normal life.

       As to the first prong, an “objectively manifested” impairment is one that is
“evidenced by actual symptoms or conditions that someone other than the injured person
would observe or perceive as impairing a body function.” McCormick, 487 Mich at 196.
In essence, for a plaintiff to make this showing, he or she must present evidence
establishing a physical basis for subjective complaints of pain. Id. at 198. Such a
showing will generally, but not always, require medical documentation. Id.



1
  MCL 500.3135(5) has recently been amended to expressly incorporate McCormick’s
interpretation of all three components of this definition. See 2019 PAs 21 and 22. That
amendment went into effect on June 11, 2019, after the lower courts rendered their
decisions. Accordingly, McCormick is the controlling authority in this case rather than
the current version of MCL 500.3135(5).
                                                                                             3

       Plaintiff did produce medical documentation of an objectively manifested
impairment. This included an “Attending Physician’s Report” authored by Dr. Rodney
Gilreath, diagnosing plaintiff with traumatic injury to multiple areas, including her back
and extremities. 2 The report indicates that the injuries were a result of the accident. It
acknowledges plaintiff’s past surgery, but indicates an increase in pain since the accident.
Additionally, plaintiff presented the trial court with various imaging studies, indicating
that she has objectively manifested medical conditions. While defendant provided
evidence suggesting that plaintiff’s injuries existed prior to the accident, “[a] trial court
may not weigh evidence when ruling on a summary disposition motion . . . .” Bank of
America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 512 (2016). I would
conclude that plaintiff’s medical documentation was sufficient to create a question of
material fact.

       In regard to the third prong, an impairment “affects a person’s ability to lead her
normal life” if it has “an influence on some of the person’s capacity to live in his or her
normal manner of living.” McCormick, 487 Mich at 202. This is a subjective inquiry
that is person- and fact-specific and requires a comparison of the preincident and
postincident life of the plaintiff. Id. The plaintiff does not have to show that he or she
has actually ceased a preincident activity or lifestyle element, but must only show that his
or her general ability to do so was affected. Id. Moreover, it is the person’s ability to
lead his or her normal life that is at the center of the inquiry, not that the actual manner of
life has been affected. Id. Finally, there is no “express temporal requirement as to how
long an impairment must last” after the accident. Id. at 203.

       Similar to my conclusion on the first prong, I believe that the evidence presented
by plaintiff also establishes a question of fact regarding whether any alleged impairment
affected plaintiff’s ability to lead her normal life. For example, plaintiff testified that
before the accident she could walk two miles per day, but now she can only walk two
blocks. She said that she can no longer perform housework. She stated that she has
trouble sleeping because certain positions are uncomfortable as a result of her injuries.
Some may view these limitations as a de minimis change in plaintiff’s normal life, but
given that the inquiry is subjective and centers on plaintiff’s ability to live her normal




2
  The Court of Appeals majority viewed this evidence as suspect, stating that it
“contradicted” Dr. Gilreath’s prior, postaccident diagnosis of plaintiff’s back pain as
“chronic.” Lingenfelter v Farm Bureau Gen Ins Co, unpublished opinion of the Court of
Appeals, issued May 23, 2019 (Docket No. 343292), p 5. In other words, the majority
seems to have concluded that Dr. Gilreath was not credible; however, “[t]he court is not
permitted to assess credibility” when deciding a motion for summary disposition.
Skinner v Square D Co, 445 Mich 153, 161 (1994).
                                                                                                               4

life, a retiree in her late 70s with preexisting health problems might not. 3 In my opinion,
this was another question of fact properly left for the jury to resolve.

       All that being said, I believe that plaintiff has pleaded sufficient facts to avoid
summary disposition in regard to the three-prong test of McCormick, and I would
therefore vacate the Court of Appeals’ judgment and remand to the trial court to consider
whether defendant was both the factual and legal cause of plaintiff’s injuries. See Ray v
Swager, 501 Mich 52, 64 (2017).

       BERNSTEIN, J., joins the statement of CAVANAGH, J.




3
  I also note that the panel majority cited McDanield v Hemker, 268 Mich App 269, 282
(2005), for the proposition that “[s]elf-imposed restrictions based on real or perceived
pain do not establish the extent of any residual impairment.” Lingenfelter, unpub op at 3.
I find this proposition highly suspect in light of McCormick’s discussion of whether an
impairment affects the person’s general ability to lead his or her normal life. McCormick,
487 Mich at 200-203.



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 15, 2020
       a0512
                                                                             Clerk
