Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  November 16, 2018                                                              Stephen J. Markman,
                                                                                            Chief Justice

  157265                                                                               Brian K. Zahra
                                                                               Bridget M. McCormack
  LINDSEY PATRICK and                                                                David F. Viviano
                                                                                 Richard H. Bernstein
  CHRISTIAN PATRICK,                                                                  Kurtis T. Wilder
            Plaintiffs-Appellees,                                               Elizabeth T. Clement,
  v                                                     SC: 157265                               Justices
                                                        COA: 336061
  VIRGINIA B. TURKELSON,                                Kent CC: 15-006324-NI
       Defendant-Appellant,
  and
  AUTO-OWNERS INSURANCE COMPANY
  and CITIZENS INSURANCE COMPANY
  OF THE MIDWEST,
             Defendants-Appellees,
  and
  HOME-OWNERS INSURANCE COMPANY,
             Defendant.
  _______________________________________/

        On order of the Court, the application for leave to appeal the January 16, 2018
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should now be reviewed by this Court.

        MARKMAN, C.J. (dissenting).

         I respectfully dissent from this Court’s order denying leave to appeal. Rather, I
  would grant leave to appeal to hear defendant’s argument that this Court should
  reconsider both McCormick v Carrier, 487 Mich 180 (2010), and Kreiner v Fischer, 471
  Mich 109 (2004), the latter of which was overruled by the former.

         Plaintiff seeks to recover noneconomic damages arising from injuries sustained
  when her automobile was struck by an automobile operated by defendant. The trial court
  granted defendant’s motion for summary disposition on the basis that plaintiff did not
  suffer a “serious impairment of body function.” But the Court of Appeals reversed and
  held that questions of fact existed regarding whether plaintiff had suffered a serious
  impairment of body function. Patrick v Turkelson, 322 Mich App 595 (2018).

        MCL 500.3135(1) provides:

               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.
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MCL 500.3135(5) defines “serious impairment of body function” as an “objectively
manifested impairment of an important body function that affects the person’s general
ability to lead his or her normal life.” Kreiner, 471 Mich at 131, held that “[a]lthough
some aspects of a plaintiff’s entire normal life may be interrupted by the impairment, if,
despite those impingements, the course or trajectory of the plaintiff’s normal life has not
been affected, then the plaintiff’s ‘general ability’ to lead his normal life has not been
affected and he does not meet the ‘serious impairment of body function’ threshold.” It
also held that the impairment must be “objectively manifested”; “[s]ubjective complaints
that are not medically documented are insufficient.” Id. at 132. McCormick, 487 Mich at
201, however, overruled Kreiner and held that an impairment affects a person’s general
ability to lead his or her normal life where the impairment “influence[s] some of the
person’s power or skill, i.e., the person’s capacity, to lead a normal life.” In addition, a
plaintiff need only show that “some of the person’s ability to live in his or her normal
manner of living has been affected, not that some of the person’s normal manner of living
has itself been affected.” Id. at 202. Finally, McCormick held that “the common
meaning of ‘objectively manifested’ in MCL 500.3135(7) is an impairment that is
evidenced by actual symptoms or conditions that someone other than the injured person
would observe or perceive as impairing a body function.” Id. at 196.

        Plaintiff claims that the side airbag, which deployed and hit her left ear, has caused
her to suffer hearing loss and tinnitus. Testing showed that her hearing was mostly
within normal limits, but with a mild loss at high frequencies. Her doctor testified that
this could be corrected with a hearing aid, but that the loss is so minor that most people in
plaintiff’s position would not find a hearing aid worth the expense. Her doctor also
testified that there are no objective findings to verify the existence of tinnitus because it is
a “phantom” sound, but that it could conceivably have been caused by airbags. Plaintiff
testified that the tinnitus has had a negative impact on her ability to work because her job
requires her to spend a significant amount of time driving and the road noise makes the
ringing in her ears worse. Before the accident, she worked about 30 hours a week, but
now she works only about 8 hours a week. Plaintiff admitted, however, that this is
partially attributable to the fact that she had a second child after the accident. She also
testified that before the accident she enjoyed kayaking, hiking, and attending concerts,
but she does not enjoy these activities anymore because of the tinnitus. She further
testified that her ear problems have affected her ability to care for her children because
she is less patient, more irritable, and more anxious. Her husband testified that they have
experienced difficulties communicating since the accident and that she sometimes tells
him that she cannot hear him.

        At least arguably, plaintiff has not suffered a “serious impairment of body
function” under Kreiner. There is no objective evidence that she suffers from tinnitus or
indeed that she has suffered any significant hearing loss. Furthermore, even assuming
that there is objective evidence of these conditions, they do not appear to affect plaintiff’s
                                                                                                               3


“general ability to lead her normal life” under Kreiner. Her doctor testified that the
hearing loss is “minor” and could be corrected by a hearing aid. The tinnitus, while
understandably highly irritating, has, again at least arguably, not prevented plaintiff from
generally leading her normal life. She takes care of her two children and although she
does not work very much anymore, this appears to be mostly a function of the fact that
she has chosen to stay home more to care for her children. The fact that she does not
kayak, hike, or attend concerts as much may or may not affect her “general ability to lead
her normal life,” for she has never testified that any of these things constituted a major
part of her preaccident life. Under Kreiner, therefore, plaintiff arguably has not suffered
a “serious impairment of body function.” Under McCormick, however, plaintiff has,
perhaps more certainly, suffered a “serious impairment of body function.” Plaintiff’s
husband testified that she sometimes cannot hear him, which would arguably satisfy
McCormick’s “objective” requirement, i.e., a third person observing her impairment. In
addition, again perhaps more certainly, some of plaintiff’s ability to live her normal life
has been affected because she no longer kayaks, hikes, or attends concerts.

        Plaintiff thus more certainly satisfies the no-fault act’s “serious impairment”
threshold for tort liability as construed by McCormick than she satisfies the same
threshold as construed by Kreiner. Therefore, this would seem to be an appropriate case
in which to assess both McCormick and Kreiner, which set very different standards for
tort liability, and to determine which of these standards is most compatible with MCL
500.3135. Accordingly, I would grant leave to appeal.

       ZAHRA, J., would grant leave to appeal.

       BERNSTEIN, J., did not participate because he has a family member with an interest
that could be affected by the proceeding




                         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.
                         November 16, 2018
       a1105
                                                                             Clerk
