                            STATE OF MICHIGAN

                            COURT OF APPEALS



RACHELLE C. JACKSON,                                                UNPUBLISHED
                                                                    October 11, 2016
               Plaintiff-Appellant,

v                                                                   No. 329320
                                                                    Kent Circuit Court
ROGER F. BERENS, STEVEN J. LANGELAND,                               LC No. 14-000841-NI
NOTIER-VER-LEE-LANGELAND CHAPEL,
INC., doing business as LANGELAND
STERENBERG FUNERAL HOMES,

               Defendants-Appellees,
and

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

               Defendant.


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

PER CURIAM.

        In this action for noneconomic tort damages under the no-fault act, MCL 500.3101 et
seq., the trial court granted summary disposition under MCR 2.116(C)(10) to defendant Roger
Berens as well as defendants Steven Langeland (hereinafter referred to individually as
“Langeland”) and Notier-Ver-Lee-Langeland Chapel, Inc., doing business as Langeland
Sterenberg Funeral Homes (collectively, “the Langeland defendants”). Plaintiff now appeals as
of right. Because plaintiff presented sufficient evidence of a threshold injury to survive a motion
under MCR 2.116(C)(10), we reverse the trial court’s grant of summary disposition to Berens
and the Langeland defendants, and we remand for further proceedings.

        The present case relates to two separate automobile accidents involving plaintiff.
Plaintiff’s first motor vehicle accident occurred on the afternoon of January 31, 2013, when she
was struck from behind by a vehicle driven by Berens. Several months later, on August 20,
2013, plaintiff was in a second automobile accident with Langeland, when he struck the side of
plaintiff’s vehicle as they were both attempting to make right hand turns from adjacent lanes.
After each accident, plaintiff underwent various treatments for injury to her spine, culminating in
surgery in 2014, and she could not perform some of her normal activities, including walking,

                                                -1-
gardening, and activities which required long periods of sitting such as watching TV, using a
computer, and attending church. As it relates to this appeal, plaintiff seeks to collect
noneconomic tort damages from both Berens and the Langeland defendants under MCL
500.3135(1), which requires plaintiff to establish that she suffered a serious impairment of a
body function caused by defendants’ ownership, maintenance, or use of a motor vehicle.1

        In the trial court, Berens and the Langeland defendants filed separate motions for
summary disposition under MCR 2.116(C)(10), asserting that no material question of fact
remained with regard to whether plaintiff suffered a serious impairment of a body function that
affected her ability to lead her normal life. In particular, Berens maintained that, before the
second accident, plaintiff had fully “recovered” from her injuries relating to the first accident and
that, in the timeframe between the first and second accidents, she had not suffered any real
impact on her general ability to lead her normal life. In comparison, according to the Langeland
defendants, plaintiff complained of the same injuries arising from both accidents, her treatment
has been continuous since the first accident, and any changes to her ability to lead her normal life
began after her first accident. In these circumstances, the Langeland defendants contended that
any injury was attributable to the first accident and that the second accident did not affect
plaintiff’s general ability to lead her normal life.

        The trial court granted summary disposition to both defendants. With regard to Berens,
the trial court based its decision on two basic findings: (1) before the second accident, plaintiff
had recovered from her injuries sustained in the first accident and was thus able to lead her
normal life, and (2) although plaintiff did obtain assistance for various tasks following the first
accident, she did so because she was “kind of shook up” and not because of any physical
injuries. In contrast, with respect to the Langeland defendants, the trial court determined that
plaintiff suffered no new injuries in the second accident which affected her ability to lead her
normal life. More specifically, the trial court determined that plaintiff’s claims “largely related
to conditions in her lower spine which pre-existed the second accident.” The trial court also
dismissed the evidence of plaintiff’s inability to lead her normal life after the second accident,
finding insufficient proof that she had people come to the home to cook for her and massage her
surgical incision. For these reasons, the trial court granted summary disposition to both
defendants under MCR 2.116(C)(10). Plaintiff now appeals as of right.

        On appeal, plaintiff argues that the trial court erred by granting defendants’ respective
motions for summary disposition because plaintiff has met the threshold requirements of MCL
500.3135(1) as required to maintain an action for noneconomic tort damages. Specifically,
plaintiff asserts that she has shown an objectively manifested impairment to her lumbar spine,
which, though degenerative in nature, was aggravated by the accident with Berens and
exacerbated further by the accident with Langeland. According to plaintiff, the impairment
caused by her spinal injury affects her general ability to lead her normal life, including, for
example, her ability to walk for exercise, bend, participate in church and other activities.



1
  Plaintiff also named her insurer, State Farm Insurance Company, as a defendant. Her claims
for no-fault benefits against State Farm settled, and State Farm is not a party to this appeal.


                                                -2-
Viewing the record in a light most favorable to plaintiff, we conclude that plaintiff has shown the
existence of a material question of fact regarding her experience of a threshold injury under
MCL 500.3135(1), and thus the trial court erred by granting defendants’ respective motions for
summary disposition under MCR 2.116(C)(10).

        We review de novo a trial court’s decision to grant a motion for summary disposition.
Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 59; 680 NW2d 50 (2004). A motion
under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Kosmalski, 261 Mich
App at 59. When reviewing a motion under MCR 2.116(C)(10), the trial court must consider the
affidavits, pleading, depositions, admissions, and other evidence in a light most favorable to the
nonmoving party. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “Where the
proffered evidence fails to establish a genuine issue regarding any material fact, the moving
party is entitled to judgment as a matter of law.” Id. “There is a genuine issue of material fact
when reasonable minds could differ on an issue after viewing the record in the light most
favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751
NW2d 8 (2008).

        “A party injured through the ownership, operation, maintenance, or use of a motor
vehicle must seek recovery within the strictures of the no-fault act.” Diallo v LaRochelle, 310
Mich App 411, 415; 871 NW2d 724 (2015) (citation omitted). Subject to certain exceptions,
with the enactment of MCL 500.3135, the Legislature abolished tort liability for harm arising
from the ownership, maintenance, or use of a motor vehicle. See MCL 500.3135(3); American
Alternative Ins Co, Inc v York, 470 Mich 28, 30; 679 NW2d 306 (2004). Relevant to the present
case, one of the exceptions to the abolishment of tort liability is the serious impairment of body
function exception, which requires a plaintiff to plead and prove a threshold injury as set forth in
MCL 500.3135(1). By statute, a “serious impairment of 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.” MCL 500.3135(5).2

         When considering whether a plaintiff has established a threshold injury, the trial court’s
first step is to determine “whether there is a factual dispute regarding the nature and the 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.” McCormick v Carrier, 487 Mich 180,
215; 795 NW2d 517 (2010). Once the court determines that it may decide whether the serious
impairment threshold has been met as a matter of law, the court then turns to the three-prong test
set forth by the Michigan Supreme Court in McCormick. In particular, to establish that a person
has suffered a “serious impairment of body function,” a plaintiff must show: “(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.” Id. at 195. “The serious impairment analysis is inherently




2
 Plaintiff’s complaint also asserted that she suffered a permanent serious disfigurement, but she
has not argued this point on appeal. We consider the issue of disfigurement abandoned. See
Cheesman v Williams, 311 Mich App 147, 161; 874 NW2d 385 (2015).


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fact- and circumstance-specific and must be conducted on a case-by-case basis,” mindful that
“what is important to one is not important to all.” Id. at 215-216.

        In dispute for purposes of appeal in the present case are the first and third prongs.3
Relevant to the first prong, an “objectively manifested impairment” refers to an impairment that
is “observable or perceivable from actual symptoms or conditions.” Id. at 215. The term
“impairment” relates to the effect of an injury; consequently, when considering whether there is
an “impairment,” “the focus ‘is not on the injuries themselves, but how the injuries affected a
particular body function.’” Id. at 197. To establish that the impairment is “objectively
manifested,” the plaintiff must “introduce evidence establishing that there is a physical basis for
their subjective complaints of pain and suffering.” Id. at 198. Notably, aggravation of a
preexisting condition can constitute a compensable threshold injury. Fisher v Blankenship, 286
Mich App 54, 63; 777 NW2d 469 (2009). “Regardless of the preexisting condition, recovery is
allowed if the trauma caused by the accident triggered symptoms from that condition.”
Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000).

         In terms of the third McCormick prong, to affect the person’s ability to lead 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.” McCormick, 487 Mich at 202. “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. As set forth in McCormick, there are
three important considerations for conducting this comparison of the person’s pre- and post-
accident life. First, the person’s life need only be “affected, not destroyed,” meaning “courts
should consider not only whether the impairment has led the person to completely cease a pre-
incident activity or lifestyle element, but also whether, although a person is able to lead his or her
pre-incident normal life, the person’s general ability to do so was nonetheless affected.” Id.
Second, because it is a person’s ability to live her normal life that must be affected, as opposed to
the person’s normal manner of living, “there is no quantitative minimum as to the percentage of
a person’s normal manner of living that must be affected.” Id. Finally, although temporal
considerations are not totally irrelevant, there is no express temporal requirement regarding how
long an impairment must last to constitute a threshold injury. Id. at 203, 222.

       Turning to the present facts, the evidence showed that plaintiff was in an automobile
accident with Berens in January of 2013. Following this accident, plaintiff underwent an MRI
which showed injuries to plaintiff’s lumbar spine, including disc desiccation, bulging disc
annulus, and interspace narrowing in relation to L5-S1. Although these changes were
undisputedly degenerative in nature, plaintiff’s testimony indicates that she was “healthy” and
asymptomatic before her accident with Berens. In comparison, after the accident, plaintiff
experienced significant pain and could not perform many of her normal activities, such as
walking 5 miles daily for exercise as she did before the accident, maintaining her garden,



3
 In terms of the second prong, the injury in question is a spinal injury, and the ability to use the
back is considered an important body function. Chumley v Chrysler Corp, 156 Mich App 474,
481; 401 NW2d 879 (1986). Defendants have not contended otherwise.


                                                 -4-
attending church, and performing various household tasks.4 Viewed in a light most favorable to
plaintiff, this evidence was sufficient to allow reasonable minds to conclude that, as a result of
the accident with Berens, plaintiff suffered an objectively manifested impairment which had
some effect on her general ability to lead her normal life. McCormick, 487 Mich at 202-203.

        It is true that, after the first accident, plaintiff received various medical treatments,
including pain injections and spinal adjustments. At her deposition, plaintiff testified that, by the
summer of 2013, she had “recovered” with treatment and was “feeling wonderful.” It was
largely based on plaintiff’s claims of recovery that the trial court granted summary disposition to
Berens. However, this was erroneous because there is no temporal requirement for how long an
impairment must last to satisfy MCL 500.3135(1). McCormick, 487 Mich at 203, 222.
Plaintiff’s claim of “recovery” may ultimately factor into a jury’s determination of the extent of
Berens’s liability; but, on the facts of this case, it does not negate a finding that plaintiff suffered
a compensable threshold injury and thus her “recovery” does not entitle Berens to summary
disposition under MCR 2.116(C)(10). Consequently, the trial court erred by granting Berens’s
motion for summary disposition.

        The trial court similarly erred by granting summary disposition to the Langeland
defendants based on the conclusions that plaintiff’s condition preexisted her second accident and
that her ability to lead her normal life did not change after the second accident. Taken in a light
most favorable to plaintiff, the evidence—including plaintiff’s deposition and medical records—
shows that plaintiff had “recovered,” or at least shown significant improvement, in the time
between her first and second accident. Indeed, according to plaintiff’s testimony and medical
records, before the second accidents, she was “feeling wonderful” and she had resumed some of
her normal activities to some extent such as walking, weeding her garden, watering her yard, and
attending church, and she was even doing things like jumping off of boats. In comparison,
according to plaintiff’s testimony, the second accident “tremendously” aggravated her original
condition. Following the second accident, plaintiff reported increased pain, she eventually
underwent surgery, and she now wears a back brace. After the second accident, plaintiff
reported a decrease in church attendance, an inability to walk for exercise, difficulty with basic
tasks such as putting on her shoes, an inability to sit for long periods to do things like use her
computer or watch television, and an inability to show affection to family, such as hugs, because
of issues with her back.5 According to plaintiff, despite surgery, she has not fully recovered
from her second accident and she remains unable to perform many of her normal activities.




4
  By concluding that plaintiff received assistance around her home solely for emotional reasons,
as opposed to a physical need, the trial court failed to view the evidence in a light most favorable
to plaintiff. Plaintiff testified that she was so “shook up” that she needed help managing her
medical care, which prompted her to obtain a “case manager.” However, plaintiff also testified
that it was due to her pain that she employed an agency to perform various household tasks such
cleaning her home, shoveling her walk, and mowing the lawn.
5
 By focusing only on the frequency with which plaintiff had people come to her home to cook
and massage her surgical incision following the second accident, the trial court ignored much of

                                                  -5-
        Given plaintiff’s apparent progress toward recovery from any symptoms caused by the
first accident and her worsening symptoms after the second accident, the August accident could
reasonably be seen as an aggravation of her preexisting condition and a prolonging of her
recovery. And, as noted, a plaintiff can establish an injury and, receive compensation, for the
aggravation or exacerbation of a preexisting condition. Fisher, 286 Mich App at 63. Further,
given evidence that plaintiff had begun to improve and return to some of her normal activities
before the second accident, the second accident can reasonably be seen as affecting her general
ability to lead her normal life. See Benefiel v Auto-Owners Ins Co, 482 Mich 1087; 759 NW2d
814 (2008). Overall, material questions of fact remain, and the trial court erred by granting the
Langeland defendants’ motion for summary disposition.

       Reversed and remanded for further proceedings. We do not retain jurisdiction. Having
prevailed in full, plaintiff may tax costs pursuant to MCR 7.219.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Deborah A. Servitto




the evidence favorable to plaintiff’s position and ultimately failed to view the evidence in a light
most favorable to plaintiff as the nonmovant. This was erroneous.


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