                           STATE OF MICHIGAN

                           COURT OF APPEALS



ELSAYED AFIFY, Individually and as Next                            UNPUBLISHED
Friend of ABDELRAHMAN AFIFY, ABDULLA                               February 22, 2018
AFIFY, and MOUSTAFA AFIFY,

              Plaintiffs-Appellants,

v                                                                  No. 335780
                                                                   Wayne Circuit Court
AAA INSURANCE COMPANY,                                             LC No. 14-010613-NI

              Defendant,

and

KEITH D. CERMAK, Guardian Ad Litem for
TROY VINCENT DONAHUE, a minor,

              Defendant-Appellee.


Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       Abdelrahman Afify (“Abdelrahman”) and Moustafa Afify (“Moustafa”), by and through
their Next Friend, Plaintiff Elsayed Afify (“Plaintiff”), appeal the trial court’s order granting
summary disposition in favor of defendant, Keith D. Cermak, guardian ad litem for Troy Vincent
Donahue, a minor.1 We affirm. 2



1
 For purposes of this appeal, the minor defendant will be referred to as “Donahue,” while his
guardian ad litem will be referred as “defendant.”
2
 Decisions on motions for summary disposition are reviewed de novo. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). A MCR 2.116(C)(10) motion tests the factual
sufficiency of the complaint. Maiden, 461 Mich at 120. The court evaluates the documentary
evidence and other materials submitted by the parties in the light most favorable to the
nonmovant. Id. Consequently, the court must draw all reasonable inferences in favor of the
nonmovant. Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789 NW2d 211 (2010). A


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        This is a third party auto negligence claim. On January 1, 2014, plaintiff’s vehicle was
involved in an accident with a vehicle driven by the minor, Troy Donahue, as it tried to proceed
through an intersection. At the time of the accident, both Abdelrahman and Moustafa, who were
minors, were passengers in a car driven by plaintiff. Although they did not sustain any apparent
injuries at the time of the accident, Abdelrahman and Moustafa subsequently began to experience
pain and physical limitations after the accident. Plaintiffs brought a complaint against Donahue,
and the Court appointed defendant Cermak as guardian ad litem for Donahue. Thereafter,
defendant brought a motion for partial summary disposition pursuant to MCR 2.116(10) (no
genuine issue of material facts), arguing that Abdelrahman and Moustafa did not suffer serious
impairments of a bodily function that affected their ability to live a normal life. The trial court
agreed and granted defendant’s motion. The court also denied defendant’s motion for
reconsideration.

        Tort liability is limited under the Michigan no-fault act. McCormick v Carrier, 487 Mich
180, 189; 795 NW2d 517 (2010). “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 a body function, or permanent serious
disfigurement.” MCL 500.3135(1). Serious impairment of a body function means “an
objectively manifested impairment of an important body function that affects the person’s
general ability to lead his or her normal life.”3 MCL 500.3135(5). To prove a serious
impairment of a body function, a plaintiff must show:

       (1) an objectively manifested impairment (observable or perceivable from actual
       symptoms or conditions) (2) of an important body function (a body function of
       value, significance, or consequence to the injured person) that (3) affects the
       person’s general ability to lead his or her normal life (influences some of the
       plaintiff’s capacity to live in his or her normal manner of living). [McCormick,
       487 Mich at 215.]

“However, there is no bright-line rule or checklist to follow in making that evaluation.”
Chouman v Homeowners Ins Co, 293 Mich App 434, 441; 810 NW2d 88 (2011). “Whether



trial court must grant the motion if it finds “no genuine issue as to any material fact” and
determines that “the moving party is entitled to judgment or partial judgment as a matter of law.”
MCR 2.116(C)(10).
3
 Our Supreme Court provided the following guidance for determining whether a plaintiff has
made a sufficient showing of a threshold injury to survive summary disposition:
              To begin with, the court should determine whether there is a factual
       dispute regarding the nature and extent of the person’s injuries, and, if so, whether
       the dispute is material to determining whether the serious impairment of body
       function threshold is met. If there is no factual dispute, or no material factual
       dispute, then whether the threshold is met is a question of law for the court.
       [McCormick, 487 Mich at 215(citation omitted).]



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someone has suffered a serious impairment is ‘inherently fact-and circumstance-specific and [the
analysis] must be conducted on a case-by-case basis.’ ” Id., quoting McCormick, 487 Mich at
215. Additionally, a plaintiff’s impairments need not be permanent. Id. at 203.

        For purposes of this appeal, only the third prong of the McCormick test is at issue, i.e.,
that the serious impairment affected the “person’s general ability to lead his or her normal life.”
McCormick, 487 Mich at 202. According to McCormick,

       [T]he 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. [Id. at 202.]

The inquiry “necessarily requires a comparison of the plaintiff’s life before and after the
accident.” Id.

        Plaintiff claims that Abdelrahman’s ability to lead a normal life was significantly affected
based solely on the fact that he had to quit the school’s wrestling team and withdraw from
football after the accident. However, even with giving the benefit of doubt to plaintiff, it does
not appear that there is a genuine issue of material fact whether Abdelrahman’s injuries affected
his general ability to lead a normal life. While there was record and deposition testimony that
Abdelrahman stopped wrestling because of too much back pain, there was evidence that shortly
after the accident, he continued with the school’s wrestling team. Moreover, after the accident,
he participated on the school’s football team, began boxing in a private gym, joined the track
team throwing shotput and discus, and started weight lifting classes, where he lifted weight every
day, and achieved an “A” grade in wrestling.

         We also conclude that Moustafa failed to produce evidence to support his claims. There
was evidence that he completed the basketball season after the accident, ran track in the spring of
2014 specializing as a long distance sprinter, participated in gym activities in school without any
restrictions, and began playing on the football team, playing defensive tackle, linebacker, safety,
and cornerback. As for his claims that he suffered from regular headaches and exacerbated anger
issues, he has failed to explain how they affected his ability to lead a normal life. Further,
headaches and anger issues cannot be considered relevant impairments where there is little, if
any, medical evidence establishing the accident as the cause of these infirmities. To the degree
that he is asserting that the headaches and anger issues are due to a prior closed-head injury, he
failed to provide any medical report or deposition testimony from “a licensed allopathic or
osteopathic physician who regularly diagnoses or treats closed-head injuries” to testify about any
“serious neurological injury.” See MCL 500.3135(2)(a)(ii).

        Given Abdelrahman’s and Moustafa’s young ages and active life styles, it cannot be said
that their life before the accident was more active, in any material way, than it was after the
accident. Nelson v Dubose, 291 Mich App 496, 499; 806 NW2d 333 (2011). Therefore, when

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viewing the facts in the light most favorable to plaintiff, the evidence does not establish a
genuine issue of material fact that Abdelrahman’s and Moustafa’s injuries affected their general
ability to lead their normal lives after the accident.

       Affirmed.



                                                           /s/ Kathleen Jansen
                                                           /s/ Deborah A. Servitto
                                                           /s/ Douglas B. Shapiro




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