             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


STEVE WHITE,                                                           UNPUBLISHED
                                                                       March 19, 2020
               Plaintiff-Appellant,

v                                                                      No. 345328
                                                                       Wayne Circuit Court
CHRISTINE JOSEPH,                                                      LC No. 16-011771-NI

               Defendant/Cross-Defendant-Appellee,

and

CITIZENS INSURANCE COMPANY OF THE
MIDWEST,

               Defendant/Cross-Plaintiff.


Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

       In this third-party no-fault action, plaintiff appeals by leave granted1 the trial court’s order
granting defendant/cross-defendant Christine Joseph’s motion for summary disposition under
MCR 2.116(C)(10). We reverse and remand for further proceedings consistent with this opinion.



        This action arises out of alleged injuries sustained by plaintiff on October 8, 2015, when
Joseph rear-ended plaintiff’s vehicle while driving on I-94. Plaintiff filed this no-fault insurance
action on September 14, 2016. On December 15, 2017, Joseph filed a motion for summary
disposition under MCR 2.116(C)(10), arguing that there were no genuine issues of material fact



1
 White v Joseph, unpublished order of the Court of Appeals, entered February 6, 2019 (Docket
No. 345328).


                                                 -1-
as to whether plaintiff suffered a serious impairment of body function as a result of the car accident
with Joseph. The trial court granted Joseph’s motion, and this appeal followed.

       This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under
MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. When considering a motion
under MCR 2.116(C)(10), the trial court must consider all evidence submitted by the parties in the
light most favorable to the party opposing the motion. Id. “A motion under MCR 2.116(C)(10)
may only be granted when there is no genuine issue of material fact.” Id. (citation omitted). “A
genuine issue of material fact exists when the record leaves open an issue upon which reasonable
minds might differ.” Id. (citation and quotation marks omitted).

        Michigan’s no-fault insurance statute limits tort liability by not only requiring a plaintiff to
prove that an injury was caused by an auto accident, but also to prove that the injury meets a
threshold to impose tort liability. Patrick v Turkelson, 322 Mich App 595, 606; 913 NW2d 369
(2018). Under MCL 500.3135(1), “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.” At
issue in this case is whether plaintiff suffered a serious impairment of body function.

       A serious impairment of body function is 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). In order to prove a serious impairment of body function, a plaintiff must
demonstrate:

       (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 v
       Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010).]

“The serious impairment analysis is inherently fact- and circumstance-specific and must be
conducted on a case-by-case basis.” Id. Additionally, “the statute only requires 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. Further, the statute does
not include “an express temporal requirement as to how long an impairment must last in order to
have an effect on ‘the person’s ability to live his or her normal life.’ ” Id. at 203.

        If factual disputes exist “regarding the nature and extent of a person’s injuries, the threshold
question of whether there was a serious impairment of body function is for the jury and may not
be decided as a matter of law.” Patrick, 322 Mich App at 608. That is, “the issue of whether a
serious impairment of body function has been incurred is a question of law to be decided by the
court only if (1) there is no factual dispute concerning the nature and extent of the person’s injuries,
or (2) there is a factual dispute concerning the nature and extent of the person’s injuries, but the
dispute is not material to the determination whether the person has suffered a serious impairment
of body function.” Id. at 607-608 (quotation marks and citation omitted). We conclude that there


                                                  -2-
are factual disputes concerning the nature and extent of plaintiff’s back and neck injuries, and that
those disputes are material to determining whether the serious impairment of body function
threshold is met.

        Shortly after the accident, plaintiff went to an urgent care center complaining of back pain,
blurred vision, headaches, and dizziness. Thy physician at the urgent care facility observed that
plaintiff had a limited range of motion in his spine, significant muscle spasms in his spine, and
lumbar tenderness. Some medical professionals also believed that plaintiff could have had a
concussion or even a traumatic brain injury. MRI reports revealed several bulging and potentially
herniated discs in plaintiff’s spine, and electromyography reports of plaintiff’s upper and lower
extremities were suggestive of bilateral radiculopathy—or a pinched nerve. Although he did not
do so, it was recommended that plaintiff have surgery for a herniated disc. Additionally, plaintiff
was referred to physical therapy and a chiropractor, and work restrictions were imposed.

         Plaintiff testified at his deposition to a number of ways in which his injuries—which he
argues were a result of the accident—impacted his life. Plaintiff testified that, after the accident,
his back pain prevented him from sleeping through the night and from falling into a deep sleep.
As a result, plaintiff frequently experienced fatigue. This fatigue and a resulting lack of motivation
caused plaintiff to no longer fully participate in some of the activities he enjoyed before the
accident, including exercise and photography. Plaintiff also testified at his deposition that his
ability to read and comprehend reading has been strained. Plaintiff experiences eye fatigue and no
longer reads for enjoyment.

         Plaintiff was evaluated by several independent medical professionals in relation to this
litigation, most of whom concluded that plaintiff did not have objective evidence of any injury or
condition arising from the accident. Some opined that plaintiff’s injuries preexisted the accident,
however, at least one doctor did report that plaintiff’s neck and back pain could be related to the
accident.

        Thus, although some of the independent medical evaluators would disagree, for the
purposes of this Court and summary disposition, plaintiff has provided at least some evidence that
he suffered some level of brain and spine injury from the accident that has caused continuing
headaches and pain, and, at the very least, has created a question of fact concerning the nature and
extent of his injuries. This factual dispute is material to determining whether the serious
impairment of body function threshold is met because the conflicting medical evidence is relevant
to determining whether plaintiff suffered an objectively manifested impairment. Therefore,
because there is some question regarding the nature and extent of plaintiff’s injuries, and because
the dispute is material to determining whether the serious impairment of body function threshold
is met, the court should not have granted defendant’s motion for summary disposition.
McCormick, 487 Mich at 193-194.




                                                 -3-
        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                         /s/ Michael J. Kelly
                                                         /s/ Karen M. Fort Hood
                                                         /s/ Stephen L. Borrello




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