                           STATE OF MICHIGAN

                           COURT OF APPEALS



RACHEL SMITH,                                                       UNPUBLISHED
                                                                    April 13, 2017
               Plaintiff-Appellant,

v                                                                   No. 329285
                                                                    Genesee Circuit Court
ONTAIS JENKINS JOHNSON, MONIQUE                                     LC No. 13-101299-NI
NICOLE SMITH, PROGRESSIVE MICHIGAN
INSURANCE COMPANY, and WEST BEND
MUTUAL INSURANCE COMPANY,

               Defendants-Appellees.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

GADOLA, J. (dissenting).

         In this action for non-economic damages under the no-fault act, MCL 500.3101 et seq.,
the trial court granted summary disposition to defendant insurers pursuant to MCR 2.116(C)(10)
finding that plaintiff had failed to establish a genuine issue of material fact with respect to
whether the injuries she allegedly sustained in an automobile accident affected her general ability
to lead her normal life. Because I disagree with the conclusion of the majority opinion that the
trial court incorrectly reached this decision, I respectfully dissent.

        This case arises from a motor vehicle accident that occurred on June 10, 2011. Plaintiff
was a passenger in a car driven by her husband; their car was proceeding through an intersection
when it was hit by another vehicle. Neither the owner nor the driver of the other car was insured
and consequently, plaintiff brought this action against defendant insurers for uninsured motorist
benefits.

       Plaintiff has a history of chronic back and neck pain and incapacity resulting from those
conditions. In 2009, she began to receive regular medical care to address her symptoms of neck
and back pain, cervical radiculopathy, anxiety, and sleeplessness; plaintiff related these
symptoms to a 2006 vehicle accident. Plaintiff continued to receive care for her back and neck
pain from her treating physician throughout 2010, and into 2011. In March 2011, an EMG
showed “cervical paraspinal denervation with radiculopathy at C5-C6 roots.” An MRI showed
cervical spondylosis. Her treating physician excused her from work from April 18, 2011 to April
29, 2011 due to “severe neck and shoulder pain on both sides.”



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        On April 25, 2011, plaintiff began treating with a new physician for “bilateral back, neck,
leg and arm pain” which plaintiff contended was exacerbated by “exercising, sitting, standing,
walking, bending, pushing, pulling, squatting, lying down and coughing.” At that time, plaintiff
asserted that as a result of her pain she could not do her job as a preschool teacher, nor could she
engage in housework, yard work, or other daily activities. Plaintiff testified that although in the
past she had participated in recreational activities such as motorcycling, bowling, tennis,
basketball, and track, she stopped these activities after her back pain necessitated her being
excused from work. Plaintiff’s new physician excused her from work for six weeks ending on
June 6, 2011, and on May 25, 2011, extended the time off work for three more months.

       The accident occurred on June 10, 2011. After the accident, plaintiff continued to treat
with her physician for back pain, and also attended physical therapy. The therapist’s records
from her June 28, 2011 appointment report that plaintiff’s “recent pain was begun in February
2011 and since has not improved,” but make no mention of the June 10, 2011 accident. Plaintiff
now contends that she has serious impairment of body function arising from the June 10, 2011
accident and seeks non-economic damages as a result.

        Under the no-fault act, “[a] person remains subject to tort liability for noneconomic loss
caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person
has suffered death, serious impairment of body function, or permanent serious disfigurement.”
MCL 500.3135(1). A serious impairment of body function is defined by the act 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). Our Supreme Court has
described this as a three-pronged test in which the person asserting the claim must establish “(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 v Carrier, 487 Mich 180,
195; 795 NW2d 517 (2010). When there is no factual dispute regarding the nature and extent of
the plaintiff’s injuries material to determining when these threshold standards are met, the
threshold question of whether a plaintiff has suffered a serious impairment of body function is a
question of law for the trial court. Id. at 193.

        In this case, for purposes of the motion for summary disposition, the parties dispute only
whether plaintiff established the third prong of the test, that is, whether the injuries allegedly
arising from the June 10, 2011 accident affect her general ability to lead her normal life. That
determination requires a comparison of plaintiff’s life before and after the incident in question.
Id. at 202. To prevail, plaintiff must demonstrate that some of her general ability to live in her
normal manner has been affected, not that some of her normal manner of living has itself been
affected. Id. at 202. “General” as used in the statute modifies “ability.” Id. at 202. As
explained in McCormick, “‘general’ does not refer to only one specific detail or particular part of
a thing, but, at least some parts of it.” Id. at 201. The inquiry is subjective and case specific, and
does not require a specific temporal showing or a “quantitative minimum as to the percentage of
a person’s normal manner of living that must be affected.” Id. at 203.

        In this case, the majority opinion concludes that the trial court erred by focusing on the
causation of plaintiff’s limitations rather than upon the subjective nature of plaintiff’s life before
and after the accident. I disagree. The trial court record demonstrates that the trial court was
clearly focused on the third prong of the McCormick test. The trial court properly compared

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plaintiff’s life before the June 10, 2011 accident to her life after the accident and determined that
plaintiff had failed to present evidence creating a genuine issue of material fact regarding
whether her injuries allegedly arising from the accident affect her general ability to lead her
normal life. Before the June 10, 2011 accident, plaintiff reported to her doctor that her pain was
exacerbated by “exercising, sitting, standing, walking, bending, pushing, pulling, squatting, lying
down and coughing.” Plaintiff informed her doctor that she could not do her job as a preschool
teacher, nor could she do housework, yard work, or “daily activities.” She was unable to engage
in her previous recreational activities. Before the June 10, 2011 accident, plaintiff had been
restricted from work, and on May 25, 2011, plaintiff’s treating physician excused plaintiff from
work for three additional months.

         After the June 10, 2011 accident, plaintiff contended that she could not return to her job,
could not do housework or yard work, could not participate in recreational activities, and needed
assistance with daily activities such as basic hygiene. Comparing plaintiff’s life before the June
10, 2011 accident to her life after the accident, there is virtually no difference in her general
ability to lead her normal life. The only difference is that plaintiff contends that she now needs
assistance with basic hygiene and getting out of bed, whereas before the accident she stated that
she could not perform “daily activities” but did not specifically define the activities to include
hygiene and getting out of bed. These differences do not constitute an appreciable change in
plaintiff’s general ability to lead her normal life.

        Because our analysis must focus upon plaintiff’s general ability to lead her normal life,
and because there is virtually no difference in plaintiff’s life after the accident from before the
accident, plaintiff failed to show that there was a genuine issue of material fact on the threshold
question of whether her general ability to lead her normal life was affected by any injuries
allegedly sustained in the June 10, 2011 accident. Plaintiff therefore is not legally entitled to
recover from the uninsured motorist, and defendant insurers were entitled to summary
disposition. I therefore would affirm.



                                                              /s/ Michael F. Gadola




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