McCORMICK v. CARRIER

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway

FILED JULY 31, 2010

STATE OF MICHIGAN

SUPREME COURT

RODNEY MCCORMICK,

Plaintiff-Appellant,

v No. 136738

LARRY CARRIER,

Defendant,

and

ALLIED AUTOMOTIVE GROUP, INC.,

indemnitor of GENERAL MOTORS

CORPORATION,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

The issue in this case is the proper interpretation of the “serious impairment of

body function” threshold for non-economic tort liability under MCL 500.3135. We hold

that Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), was wrongly decided

because it departed from the plain language of MCL 500.3135, and is therefore overruled.

We further hold that, in this case, as a matter of law, plaintiff suffered a serious

impairment of a body function. Accordingly, we reverse and remand the case to the trial

court for proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

This case arises out of an injury that plaintiff, Rodney McCormick, suffered while

working as a medium truck loader at a General Motors Corporation (GM) plant.1

Plaintiff’s job mainly consisted of assisting in the loading of trucks, which required

climbing up and around trucks and trailers, standing, walking, and heavy lifting. He

generally worked nine- to ten-hour shifts, six days a week.

On January 17, 2005, a coworker backed a truck into plaintiff, knocking him over,

and then drove over plaintiff’s left ankle. Plaintiff was immediately taken to the hospital,

and x-rays showed a fracture of his left medial malleolus.2 Plaintiff was released from

the hospital that day, and two days later metal hardware was surgically inserted into his

ankle to stabilize plaintiff’s bone fragments. Plaintiff was restricted from weight-bearing

activities for one month after the surgery and then underwent multiple months of physical

therapy. The metal hardware was removed in a second surgery on October 21, 2005.

1

The only defendant remaining at this point in the case is GM’s indemnitor,

Allied Automotive Group, Inc, because the parties have stipulated the release of the other

original defendants. For simplicity’s sake, the opinion will use “defendant” to refer to

this entity.

2

The medial malleolus is the bony prominence that protrudes from the medial side

of the ankle. Stedman’s Medical Dictionary (26th ed).

2

At defendant’s request, plaintiff underwent a medical evaluation with Dr. Paul

Drouillard in November 2005. He indicated that plaintiff could return to work but was

restricted from prolonged standing or walking. On January 12, 2006, the specialist who

performed plaintiff’s surgeries cleared him to return to work without restrictions. The

specialist’s report noted that plaintiff had an “excellent range of motion,” and an x-ray

showed “solid healing with on [sic] degenerative joint disease of his ankle.”

Beginning on January 16, 2006, plaintiff returned to work as a medium truck

loader for several days, but he had difficulty walking, climbing, and crouching because of

continuing ankle pain. He requested that his job duties be restricted to driving, but

defendant directed him to cease work.

Defendant required plaintiff to undergo a functional capacity evaluation (FCE) in

March 2006. The FCE determined that plaintiff was unable to perform the range of tasks

his job required, including stooping, crouching, climbing, sustained standing, and heavy

lifting. This was due to ankle and shoulder pain,3 a moderate limp, and difficulty bearing

weight on his left ankle. The report stated that plaintiff’s range of motion in his left ankle

was not within normal limits and that difficulty climbing and lifting weights had been

reported and observed.

In May 2006, Dr. Drouillard examined plaintiff again and reported that plaintiff

could return to work. Dr. Drouillard’s report stated that plaintiff complained of ankle and

3

Plaintiff had a pre-existing back and shoulder injury that is unrelated to the

incident in this case.

3

foot pain, but the doctor found “no objective abnormality to correspond with his

subjective complaints.” In June 2006, plaintiff also underwent a magnetic resonance

imaging (MRI) test, which showed some postoperative scar and degenerative tissue

formation around his left ankle. At plaintiff’s request, another FCE was performed on

August 1, 2006, which affirmed that plaintiff could return to work without restriction and

was capable of performing the tasks required for his job. The report stated that plaintiff

complained of “occasional aching” and tightness in his ankle, but it did not appear to be

aggravated by activities such as prolonged standing or walking. It also noted that

plaintiff’s range of motion in his left ankle was still not within normal limits, although it

had improved since the March 2006 FCE.

Plaintiff returned to work on August 16, 2006, 19 months after he suffered his

injury. He volunteered to be assigned to a different job, and his pay was not reduced. He

has been able to perform his new job since that time.

On March 24, 2006, plaintiff filed suit, seeking recovery for his injuries under

MCL 500.3135. In his October 2006 deposition, plaintiff testified that at the time of the

incident, he was a 49-year-old man and his normal life before the incident mostly

consisted of working 60 hours a week as a medium-duty truck loader. He stated that he

also was a “weekend golfer” and frequently fished in the spring and summer from a boat

that he owns. He testified that he was fishing at pre-incident levels by the spring and

4

summer of 2006, but he has only golfed once since he returned to work.4 He stated that

he can drive and take care of his personal needs without assistance and that his

relationship with his wife has not been affected. He stated that he has not sought medical

treatment for his ankle since January 2006, when he was approved to return to work

without restriction. He further testified that his life is “painful, but normal,” although it is

“limited,” and he continues to experience ankle pain.

The trial court granted defendant’s motion for summary disposition on the basis

that plaintiff had recovered relatively well and could not meet the serious impairment

threshold provided in MCL 500.3135(1). The Court of Appeals affirmed, with one judge

dissenting. McCormick v Carrier, unpublished opinion per curiam of the Court of

Appeals, issued March 25, 2008 (Docket No. 275888). The majority held that, under

Kreiner, plaintiff’s impairment did not affect his ability to lead his normal life because he

is able to care for himself, fish and golf, and work at the same rate of pay. The dissent

disagreed, arguing that two doctors had determined that the impairment would cause

4

There are no facts in the record regarding the extent to which plaintiff fished

between January 2005 and January 2006 or the extent to which he was able to golf in the

period between the incident and when he returned to work, despite the arguments to the

contrary by both parties and the dissent. Defendant has alleged that plaintiff was able to

fish while he was not working, but the only factual support it cites is plaintiff’s statement

that he fished in the six or seven months after January 2006, which was when he was

initially cleared to return to work, and when he actually returned to work. Although

plaintiff’s counsel agreed in the arguments before the trial court that plaintiff had been

fishing, it was unclear as to what time period he was referring. In plaintiff’s brief to this

Court, he alleges that by the time of his deposition, he had “returned” to fishing with the

same frequency as before the accident, which suggests that plaintiff might be arguing that

his fishing activities were interrupted.

5

problems over plaintiff’s entire life and his employer had determined that he could not

perform his work duties, the main part of his “normal” life.

After initially denying leave to appeal, this Court granted plaintiff’s motion for

reconsideration, vacated its prior order, and granted the application for leave to appeal.

McCormick v Carrier, 485 Mich 851 (2009).

II. STANDARD OF REVIEW

This Court reviews a motion for summary disposition de novo. In re Smith Trust,

480 Mich 19, 23-24; 745 NW2d 754 (2008). The proper interpretation of a statute is a

legal question that this Court also reviews de novo. Herman v Berrien Co, 481 Mich

352, 358; 750 NW2d 570 (2008).

III. ANALYSIS

The issue presented in this case is the proper interpretation of MCL 500.3135. We

hold that Kreiner incorrectly interpreted MCL 500.3135 and is overruled because it is

inconsistent with the statute’s plain language and this opinion. Further, under the proper

interpretation of the statute, plaintiff has demonstrated that, as a matter of law, he

suffered a serious impairment of body function.

A. OVERVIEW OF MCL 500.3135

In 1973, the Michigan Legislature adopted the no-fault insurance act, MCL

500.3101 et seq. The act created a compulsory motor vehicle insurance program under

which insureds may recover directly from their insurers, without regard to fault, for

qualifying economic losses arising from motor vehicle incidents. See MCL 500.3101 and

500.3105. In exchange for ensuring certain and prompt recovery for economic loss, the

6

act also limited tort liability. MCL 500.3135. See also DiFranco v Pickard, 427 Mich

32, 40-41; 398 NW2d 896 (1986). The act was designed to remedy problems with the

traditional tort system as it relates to automobile accidents. These included that “[the

contributory negligence liability scheme] denied benefits to a high percentage of motor

vehicle accident victims, minor injuries were overcompensated, serious injuries were

undercompensated, long payment delays were commonplace, the court system was

overburdened, and those with low income and little education suffered discrimination.”

Shavers v Attorney General, 402 Mich 554, 579; 267 NW2d 72 (1978).

Under the act, tort liability for non-economic loss arising out of the ownership,

maintenance, or use of a qualifying motor vehicle is limited to a list of enumerated

circumstances. MCL 500.3135(3). The act creates threshold requirements in MCL

500.3135(1), which has remained unchanged in all key aspects since the act was adopted.

That subsection currently provides that “[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.”

The threshold requirement at issue in this case is whether plaintiff has suffered

“serious impairment of body function.” The act did not originally define this phrase.

Accordingly, it initially fell to this Court to do so, and the result was a series of differing

opinions. In Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), this Court held

that whether the serious impairment threshold is met is a question of law for the court to

decide where there is no material disputed fact. Id. at 502. It further held that in order to

7

meet the threshold, the plaintiff must show an objectively manifested injury and an

impairment of an important body function, which it defined as “an objective standard that

looks to the effect of an injury on the person’s general ability to live a normal life.” Id. at

505. This Court later in part modified and in part affirmed Cassidy in DiFranco, supra.

The DiFranco Court agreed that a plaintiff had to suffer an objectively manifested injury,

but it rejected the Cassidy Court’s determination that the impairment needed to be

“important” and its definition of “important.” DiFranco, 427 Mich at 61-67, 70-75. The

DiFranco Court further held that whether the threshold is met is a question of law for the

court only if there are no material disputed facts and the facts could not support

conflicting inferences. Id. at 53-54.

In 1995, however, the Legislature intervened. It amended MCL 500.3135 to

define a “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.” MCL 500.3135(7). The Legislature also expressly provided that whether a

serious impairment of body function has occurred is a “question[] of law” for the court to

decide unless there is a factual dispute regarding the nature and extent of injury and the

dispute is relevant to deciding whether the standard is met. MCL 500.3135(2)(a). Thus,

the Legislature incorporated some language from DiFranco and Cassidy but also made

some significant changes.5

5

Some courts have broadly stated that the Legislature rejected DiFranco in favor

of Cassidy, see Kreiner, 471 Mich at 121 n 8, but that is an oversimplification. Some of

the language adopted by the Legislature was used consistently in both DiFranco and

8

This Court interpreted the amended provisions in 2004, in Kreiner. The question

before this Court is whether the Kreiner majority properly interpreted the statute, and, if

not, whether its interpretation should be overruled.

B. INTERPRETATION OF MCL 500.3135

The primary goal of statutory construction is to give effect to the Legislature’s

intent. Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753

(2010). This Court begins by reviewing the language of the statute, and, if the language

is clear and unambiguous, it is presumed that the Legislature intended the meaning

expressed in the statute. Id. Judicial construction of an unambiguous statute is neither

required nor permitted.6 In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d

164 (1999). When reviewing a statute, all non-technical “words and phrases shall be

construed and understood according to the common and approved usage of the

language,” MCL 8.3a, and, if a term is not defined in the statute, a court may consult a

dictionary to aid it in this goal. Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas

Cassidy, and the Legislature clearly rejected some elements of Cassidy. The similarities

and differences between DiFranco and Cassidy and the amendments to MCL 500.3135

will be discussed below to the extent that they are significant. Although the dissent

disagrees in the abstract with my statement that it is an oversimplification to state that the

Legislature merely rejected DiFranco in favor of Cassidy, I can only conclude that it is

unable to support this accusation with any specific, substantive arguments, given that it

fails to expressly address or reject my more nuanced analysis of each of the specific

phrases that the Legislature adopted or rejected from Cassidy and DiFranco.

6

This Court’s members disagree on when a statute is ambiguous. See Petersen v

Magna Corp, 484 Mich 300, 310-313 (opinion by KELLY, C.J.), 339-342 (opinion by

HATHAWAY, J.); 773 NW2d 564 (2009). We need not address that issue here because

MCL 500.3135 is unambiguous under any of the views.

9

Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751 (1998). A court should consider the

plain meaning of a statute’s words and their “‘placement and purpose in the statutory

scheme.’” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999)

(citation omitted). “Where the language used has been subject to judicial interpretation,

the legislature is presumed to have used particular words in the sense in which they have

been interpreted.” People v Powell, 280 Mich 699, 703; 274 NW 372 (1937). See also

People v Wright, 432 Mich 84, 92; 437 NW2d 603 (1989).

1. A QUESTION OF LAW OR FACT UNDER MCL 500.3135(2)

The first step in interpreting MCL 500.3135 is to determine the proper role of a

court in applying MCL 500.3135(1) and (7). The Legislature addressed this issue in the

amended MCL 500.3135(2)(a), which states in relevant part:

The issues of whether an injured person has suffered serious impairment

of body function or permanent serious disfigurement are questions of law

for the court if the court finds either of the following:

(i) There is no factual dispute concerning the nature and extent of

the person’s injuries.

(ii) There is a factual dispute concerning the nature and extent of

the person’s injuries, but the dispute is not material to the

determination as to whether the person has suffered a serious

impairment of body function or permanent serious disfigurement.

Under the plain language of the statute, the threshold question whether the person

has suffered a serious impairment of body function should be determined by the court as

a matter of law as long as there is no factual dispute regarding “the nature and extent of

the person’s injuries” that is material to determining whether the threshold standards are

10

met.7 If there is a material factual dispute regarding the nature and extent of the person’s

injuries, the court should not decide the issue as a matter of law.8 Notably, the disputed

7

Notably, MCL 500.3135(2)(a) could unconstitutionally conflict with MCR

2.116(C)(10) in those cases wherein a court is required to (1) resolve material, disputed

facts with regard to issues other than the nature and extent of the injury, such as the

extent to which the injury actually impairs a body function or the injured party relied on

that function as part of his or her pre-accident life, or (2) decide whether the threshold is

met even though reasonable people could draw different conclusions from the facts. See

Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994), and Henderson

v State Farm Fire & Cas Co, 460 Mich 348, 357; 596 NW2d 190 (1999).

Given that the allocation of decision-making authority between a judge and a jury

is “a quintessentially procedural determination,” Shropshire v Laidlaw Transit, Inc, 550

F3d 570, 573 (CA 6, 2008), this potential conflict raises questions as to whether the

Legislature may have unconstitutionally invaded this Court’s exclusive authority to

promulgate the court rules of practice and procedure to the extent that MCL

500.3135(2)(a) is merely procedural. See Perin v Peuler (On Rehearing), 373 Mich 531,

541; 130 NW2d 4 (1964). We do not reach this issue today because we conclude that

there are no material factual disputes affecting the serious impairment threshold

determination in this case. Notably, however, the division of questions of law and fact

between a judge and a jury is based on longstanding procedural rules, see Mawich v

Elsey, 47 Mich 10, 15-16; 10 NW 57 (1881), that are intended to promote judicial

efficiency. See Moll v Abbott Laboratories, 444 Mich 1, 26-28; 506 NW2d 816 (1993).

Whether MCL 500.3135(2)(a) serves a purpose other than judicial dispatch is not clear,

as the Legislature itself stated that the 1995 amendments were intended, in part, “to

prescribe certain procedures for maintaining [tort liability arising out of certain

accidents].” See the title of 1995 PA 222. And, of course, the scope of the rules

governing summary disposition are also supported—if not compelled—by the right to a

jury trial in civil cases. See, generally, Conservation Dep’t v Brown, 335 Mich 343, 346-

347; 55 NW2d 859 (1952), and Dunn v Dunn, 11 Mich 284, 286 (1863). Accord Byrd v

Blue Ridge Rural Electric Coop, Inc, 356 US 525, 537-538; 78 S Ct 893; 2 L Ed 2d 953

(1958). Interestingly, the dissent states that it disagrees with the majority that there could

be a conflict between the statute and the court rule, but it also approvingly quotes

DiFranco for the proposition that reasonable minds can often differ over the threshold

issues in these cases.

8

This plain reading of the statute is not necessarily inconsistent with the Kreiner

majority’s interpretation of MCL 500.3135(2)(a), see Kreiner, 471 Mich at 131-132, but

neither the majority nor dissent in Kreiner discussed the constitutionality of this

11

fact does not need to be outcome determinative in order to be material, but it should be

“significant or essential to the issue or matter at hand.” Black’s Law Dictionary (8th ed)

(defining “material fact”).

2. A “SERIOUS IMPAIRMENT OF BODY FUNCTION”

UNDER MCL 500.3135(1) AND (7)

In those cases where the court may decide whether the serious impairment

threshold is met as a matter of law, the next issue is the proper interpretation of MCL

500.3135(7). It provides that, for purposes of the section, 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.” On its face, the

statutory language provides three prongs that are necessary to establish a “serious

impairment of body function”: (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.9

Overall, because we conclude that each of these prongs’ meaning is clear from the

plain and unambiguous statutory language, judicial construction is neither required nor

provision. As noted in footnote 7 of this opinion, however, the manner in which Kreiner

interpreted the statute may be unconstitutional to the extent that it requires a court to

usurp the role of the fact-finder. That issue is not presented on the facts of this case,

however.

9

The Kreiner majority first addressed whether the impaired body function was

important and then analyzed whether the impairment was objectively manifested. 471

Mich at 132-133. We find it more consistent with the statutory text to first address the

objectively manifested impairment requirement.

12

permitted. In re MCI, 460 Mich at 411. Notably, however, a dictionary may aid the

Court in giving the words and phrases in MCL 500.3135(7) their common meaning, and

where the language used in MCL 500.3135(7) was originally adopted and interpreted in

Cassidy and DiFranco, it may be presumed that the Legislature intended the previous

judicial interpretation to be relevant. Oakland Co Bd of Rd Comm’rs, 456 Mich at 604,

and Wright, 432 Mich at 92. As will be discussed within, where the Kreiner majority’s

interpretation of these prongs is inconsistent with the clear language of the statute, we

hold that Kreiner was wrongly decided. Most significantly, its interpretation of the third

prong deviates dramatically from the statute’s text.

a. AN OBJECTIVELY MANIFESTED IMPAIRMENT

Under the first prong, it must be established that the injured person has suffered an

objectively manifested impairment of body function. The common meaning of “an

objectively manifested impairment” is apparent from the unambiguous statutory

language, with aid from a dictionary, and is consistent with the judicial interpretation of

“objectively manifested” in Cassidy and DiFranco. To the extent that the Kreiner

majority’s interpretation of this prong differs from this approach, it was wrongly decided.

To begin with, the adverb “objectively” is defined as “in an objective manner,”

Webster’s Third New International Dictionary (1966), and the adjective “objective” is

defined as “1. Of or having to do with a material object as distinguished from a mental

concept. 2. Having actual existence or reality. 3. a. Uninfluenced by emotion, surmise, or

personal prejudice. b. Based on observable phenomena; presented factually . . . .” The

American Heritage Dictionary, Second College Edition (1982). It is defined specifically

13

in the medical context as “[i]ndicating a symptom or condition perceived as a sign of

disease by someone other than the person afflicted.” Id.10 The verb “manifest” is defined

as “1. To show or demonstrate plainly; reveal. 2. To be evidence of; prove.” Id. Overall,

these definitions suggest 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. In other words, an “objectively manifested” impairment is commonly

understood as one observable or perceivable from actual symptoms or conditions.

Notably, MCL 500.3135(7) does not contain the word “injury,” and, under the

plain language of the statute, the proper inquiry is whether the impairment is objectively

manifested, not the injury or its symptoms.11 This distinction is important because

“injury” and “impairment” have different meanings. An “injury” is “1. Damage of or to a

person . . . 2. A wound or other specific damage.” The American Heritage Dictionary,

10

See also Webster’s Third New International Dictionary (1966), defining

“objective,” in relevant part, as “publicly or intersubjectively observable or verifiable

especially by scientific methods: independent of what is personal or private in our

apprehension and feelings: of such nature that rational minds agree in holding it real or

true or valid.” It also defines “objective” in the context “of a symptom of disease” as

“perceptible to persons other than an affected individual.” Id. (italics omitted).

11

Accordingly, the Court of Appeals decisions that have gone beyond the plain

language of the statute and imposed an extra-textual “objectively manifested injury”

requirement, in clear contravention of Legislative intent, are overruled to the extent that

they are inconsistent with this opinion. See, e.g., Netter v Bowman, 272 Mich App 289,

305; 725 NW2d 353 (2006) (holding that “the current meaning of ‘objectively

manifested’ . . . requires that a plaintiff’s injury must be capable of objective

verification”.

14

Second College Edition (1982). “Impairment” is the “state of being impaired,” Webster’s

Third New International Dictionary (1966), and to be “impaired” means being

“weakened, diminished, or damaged” or “functioning poorly or inadequately.” Random

House Webster’s Unabridged Dictionary (1998). These definitions show that while an

injury is the actual damage or wound, an impairment generally relates to the effect of that

damage. Accordingly, when considering an “impairment,” the focus “is not on the

injuries themselves, but how the injuries affected a particular body function.” DiFranco,

427 Mich at 67.

Further, the pre-existing judicial interpretation of “objectively manifested” is

consistent with the plain language of the later-adopted statute. In Cassidy, this Court

explained that the serious impairment threshold was not met by pain and suffering alone,

but also required “injuries that affect the functioning of the body,” i.e., “objectively

manifested injuries.” Cassidy, 415 Mich at 505. In other words, Cassidy defined

“objectively manifested” to mean affecting the functioning of the body.12 DiFranco

affirmed this and further explained that the “objectively manifested” requirement

signifies that plaintiffs must “introduce evidence establishing that there is a physical basis

for their subjective complaints of pain and suffering” and that showing an impairment

generally requires medical testimony. DiFranco, 427 Mich at 74.

12

Although the Legislature plainly rejected that it is the injury that should be

objectively manifested, as opposed to the impairment, the previous judicial construction

of “objectively manifested” is still relevant.

15

The Kreiner majority’s interpretation of this language was only partially consistent

with the plain language of the statute. It addressed this issue briefly, stating that

“[s]ubjective complaints that are not medically documented are insufficient [to establish

that an impairment is objectively manifested].” Kreiner, 471 Mich at 132. To the extent

that this is inconsistent with DiFranco’s statement that medical testimony will generally

be required to establish an impairment, it is at odds with the legislative intent expressed

by the adoption of the “objectively manifested” language from DiFranco and Cassidy.

Thus, to the extent that Kreiner could be read to always require medical documentation, it

goes beyond the legislative intent expressed in the plain statutory text, and was wrongly

decided.

b. OF AN IMPORTANT BODY FUNCTION

If there is an objectively manifested impairment of body function, the next

question is whether the impaired body function is “important.” The common meaning of

this phrase is expressed in the unambiguous statutory language, although reference to a

dictionary and limited reference to Cassidy is helpful.

The relevant definition of the adjective “important” is “[m]arked by or having

great value, significance, or consequence.” The American Heritage Dictionary, Second

College Edition (1982). See also Random House Webster’s Unabridged Dictionary

(1998), defining “important” in relevant part as “of much or great significance or

consequence,” “mattering much,” or “prominent or large.” Whether a body function has

great “value,” “significance,” or “consequence” will vary depending on the person.

Therefore, this prong is an inherently subjective inquiry that must be decided on a case-

16

by-case basis, because what may seem to be a trivial body function for most people may

be subjectively important to some, depending on the relationship of that function to the

person’s life.

The “important body function” language was originally adopted in Cassidy, where

the Court stated that an “important” body function is not any body function but also does

not refer to the entire body function. Cassidy, 415 Mich at 504. This pre-existing

judicial construction of “important body function” is consistent with the common

meaning of “important.”13

For this prong, the Kreiner majority’s interpretation appears to be consistent with

the plain language of the statute, as it only briefly stated that “[i]t is insufficient if the

impairment is of an unimportant body function.” Kreiner, 471 Mich at 132.14 If,

however, the Kreiner majority’s position has been construed in a manner that is

inconsistent with this opinion, then we disapprove of those constructions.

13

Cassidy also held that the importance of a body function is an objective

standard based on its effect on “the person’s general ability to live a normal life.”

Cassidy, 415 Mich at 505 (emphasis added). As discussed below, however, the

Legislature specifically rejected the idea that the normal life evaluation should be

objective, and, thus, implicitly rejected Cassidy’s determination that whether a body

function is “important” could be objectively determined outside the context of the

person’s actual life. Notably, DiFranco is inapposite because it rejected the “important

body function” test. DiFranco, 427 Mich at 61-62.

14

The Kreiner majority also apparently agreed that this is a subjective, case-by-

case inquiry. Kreiner, 471 Mich at 134 n 19.

17

c. THAT AFFECTS THE PERSON’S GENERAL ABILITY

TO LEAD HIS OR HER NORMAL LIFE

Finally, if the injured person has suffered an objectively manifested impairment of

body function, and that body function is important to that person, then the court must

determine whether the impairment “affects the person’s general ability to lead his or her

normal life.” The common meaning of this phrase is expressed by the unambiguous

statutory language, and its interpretation is aided by reference to a dictionary, reading the

phrase within its statutory context, and limited reference to Cassidy.

To begin with, the verb “affect” is defined as “[t]o have an influence on; bring

about a change in.” The American Heritage Dictionary, Second College Edition (1982).

An “ability” is “[t]he quality of being able to do something,” id., and “able” is defined as

“having sufficient power, skill, or resources to accomplish an object.” Merriam-Webster

Online Dictionary, <http://www.merriam-webster.com> (accessed May 27, 2010). The

adjective “general” means:

1. Relating to, concerned with, or applicable to the whole or every

member of a class or category. 2. Affecting or characteristic of the majority

of those involved; prevalent: a general discontent. 3. Being usually the

case; true or applicable in most instances but not all. 4. a. Not limited in

scope, area, or application: as a general rule. b. Not limited to one class of

things: general studies. 5. Involving only the main features of something

rather than details or particulars. 6. Highest or superior in rank.” [The

American Heritage Dictionary, Second College Edition (1982).]

The sixth definition is obviously irrelevant, and the first definition of “general” does not

make sense in this context because a person’s “whole” ability to live his or her normal

life is surely not affected short of complete physical and mental incapacitation, which is

accounted for in a different statutory threshold: death. The other definitions, however,

18

more or less convey the same meaning: that “general” does not refer to only one specific

detail or particular part of a thing, but, at least some parts of it. Thus, these definitions

illustrate that to “affect” the person’s “general ability” to lead his or her normal life is to

influence some of the person’s power or skill, i.e., the person’s capacity, to lead a normal

life.

The next question is the meaning of “to lead his or her normal life.” The verb

“lead,” in this context, is best defined as “[t]o pass or go through; live.” The American

Heritage Dictionary, Second College Edition (1982). Although the verb “lead” has many

definitions, some of which have similar nuances, this definition is the most relevant

because it expressly applies in the context of leading a certain type of life. Indeed, other

dictionaries provide a similar definition with the same context, using a “type of life” as an

example.15 Similarly, “life” has multiple meanings, but one specifically references the

context of leading a particular type of life, which is “[a] manner of living: led a good

life.” Id. Other definitions are similar, such as “[t]he physical, mental, and spiritual

experiences that constitute a person’s existence,” or “[h]uman existence or activity in

general.” Id. Given the contextual examples used in the dictionary, the common

understanding of “to lead his or her normal life” is to live, or pass life, in his or her

normal manner of living.

15

See Random House Webster’s Unabridged Dictionary (1998), defining “lead”

as “to go through or pass (time, life, etc.): to lead a full life,” and Webster’s Third New

International Dictionary (1966), defining it as “to go through (life or some other period

of time): PASS, LIVE <there he led a very peaceful existence>.”

19

Therefore, the plain text of the statute and these definitions demonstrate that the

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.

There are several important points to note, however, with regard to this

comparison. First, the statute merely requires that a person’s general ability to lead his or

her normal life has been affected, not destroyed. Thus, 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.

Second, and relatedly, “general” modifies “ability,” not “affect” or “normal life.”

Thus, the plain language of 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. Thus, while the extent to which a

person’s general ability to live his or her normal life is affected by an impairment is

undoubtedly related to what the person’s normal manner of living is, there is no

quantitative minimum as to the percentage of a person’s normal manner of living that

must be affected.

20

Third, and finally, the statute does not create an express temporal requirement as

to how long an impairment must last in order to have an effect on “the person’s general

ability to live his or her normal life.” To begin with, there is no such requirement in the

plain language of the statute. Further, MCL 500.3135(1) provides that the threshold for

liability is met “if the injured person has suffered death, serious impairment of body

function, or permanent serious disfigurement.” While the Legislature required that a

“serious disfigurement” be “permanent,” it did not impose the same restriction on a

“serious impairment of body function.” Finally, to the extent that this prong’s language

reflects a legislative intent to adopt this portion of Cassidy in some measure,16 Cassidy

expressly rejected a requirement of permanency to meet the serious impairment

threshold. Cassidy, 415 Mich at 505-506 (noting that “two broken bones, 18 days of

hospitalization, 7 months of wearing casts during which dizzy spells further affected his

mobility, and at least a minor residual effect one and one-half years later are sufficiently

serious to meet the threshold requirement of serious impairment of body function”).

Despite the fact that the language of the statute was plain, the Kreiner majority

deviated significantly from the statutory text in its interpretation of this prong. To begin

with, the Kreiner majority erred in its interpretation of the phrase “that affects the

person’s general ability” for two reasons. First, it selectively quoted only the dictionary

16

Although some of this prong’s text is derived from Cassidy, the Legislature

made important modifications. The Cassidy Court stated that the serious impairment

threshold “looks to the effect of an injury on the person’s general ability to live a normal

life,” Cassidy, 415 Mich at 505, and the Legislature rejected that the standard for “a”

normal life was objective.

21

definitions of “general” that best supported its conclusions. It gave one definition for this

word, “‘the whole; the total; that which comprehends or relates to all, or the chief part; a

general proposition, fact, principle, etc.;—opposed to particular; that is, opposed to

special,’” and then relied on definitions of “in general” and “generally” to conclude that

“general” means “‘for the most part.’” Kreiner, 471 Mich at 130, quoting Webster’s New

International Dictionary. Webster’s, however, offers 10 definitions of the adjective

“general,” many of which are similar to definitions quoted above from The American

Heritage Dictionary. Moreover, of these 10 definitions, the majority chose the most

restrictive, even though, as discussed above, it does not make the most sense in this

context. And, even then, the Kreiner majority looked to other forms of the word.

Second, the Kreiner majority stated that “[t]he starting point in analyzing whether an

impairment affects a person’s ‘general,’ i.e., overall, ability to lead his normal life should

be identifying how his life has been affected, by how much, and for how long.” Kreiner,

471 Mich at 131. Although other portions of the Kreiner majority opinion more carefully

stated that the test was the effect on a person’s general ability, this particular reasoning

could be pulled out of context to suggest that courts should focus on how much the

impairment affects a person’s life, instead of how much it affects the person’s ability to

live his or her life.

Further, the Kreiner majority significantly erred in its interpretation of “to lead his

or her normal life.” It relied on a dictionary to define “lead” as “to conduct or bring in a

particular course.” Notably, depending on how this definition is interpreted, it may have

a similar meaning to “live” or “pass” when “conduct” and “course” are given a certain

22

meaning. “Conduct” can mean “to behave or act,” and “course” can mean “[a] mode of

action or behavior” or “[a] typical or natural manner of proceeding or developing:

customary passage . . . .” The American Heritage Dictionary, Second College Edition

(1982). The meaning of “to behave or act in his or her typical or natural manner of

proceeding” may be similar to “living in his or her normal manner of living.”

Beyond this point, however, the Kreiner majority went astray and gave the statute

a labored interpretation inconsistent with common meanings and common sense.

Applying its chosen definition of “lead,” the majority concluded that “the effect of the

impairment on the course of a plaintiff’s entire normal life must be considered,” and if

“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 . . . .” Kreiner,

471 Mich at 131. In other words, the Kreiner majority held that the “common meaning”

of whether an impairment has affected “the person’s general ability to lead his or her

normal life” is whether it has affected the person’s general ability to conduct the course

or trajectory of his or her entire normal life. This “common meaning” is quite different

from the actual statutory text in form and substance. Significantly, the Kreiner majority’s

interpretation of the statute interjects two terms that are not included in the statute or the

dictionary definitions of the relevant statutory language: “trajectory” and “entire.” Both

terms create ambiguity where the original statutory text had none, and the Kreiner

majority thus erred by selectively defining the words used in definitions of statutory

terms in order to shift away from the common meaning that the words have in the context

of MCL 500.3135(7).

23

As to the first addition, while “trajectory” is a synonym for “course” when

“course” is defined as, for example, “[t]he direction of continuing movement,” The

American Heritage Dictionary, Second College Edition (1982), it is not a synonym for

the definition of “course” that makes sense in the context of defining a “general ability to

lead his or her normal life.” When “conduct” is used with this definition of “course,” it

has the very different meaning of “[t]o direct the course of; control.” Id. The plain

language of the statute does not suggest that the Legislature’s intent was to address the

effect of an impairment on the person’s ability to control the direction of their life, as

opposed to its effect on the person’s ability to live in his or her normal manner of living.

Yet the majority managed to imply this meaning by inserting “trajectory” as a synonym

for “course,” thereby shifting the meaning of “course” from the most natural contextual

reading of the word. The use of “trajectory” and the suggestion that “course” should be

understood to mean “the direction of continuing movement,” instead of “a mode of action

or behavior,” creates ambiguity by implying a sense of permanence that is inconsistent

with, and does not make sense in the context of, the actual statutory language.

As to the second addition, the majority modified the statutory language “his or her

normal life” with “entire,” a modification that it apparently created out of thin air,17

thereby creating an ambiguity that had not previously existed in the statutory text. The

17

The Kreiner majority did define “in general” as “with respect to the entirety”

when interpreting “general ability.” Kreiner, 471 Mich at 130. But, even assuming that

it is proper to use the definition of the phrase “in general” to define the adjective

“general,” the Legislature used general to modify ability, not life.

24

word “life” has more than one meaning. As noted, it can refer to the meaning that would

be commonly understood to apply in the context of the statutory language, which is “a

manner of living.” It also can refer to “[t]he interval of time between birth and death;

lifetime.” The American Heritage Dictionary, Second College Edition (1982). The

differences are significant: whereas the first meaning refers to the day-to-day process of

living, the second is a finite measure that encompasses all of one’s time on earth.

Although “entire” could modify either meaning of “life,” it is probably more commonly

used to modify the second. Thus, by inserting “entire,” the Kreiner majority created an

ambiguity that is not present in the original statutory text because the second, finite

definition of “life” does not make sense in the context of the actual statutory language. It

would be unusual to refer to someone’s general ability to lead his or her normal

“lifetime” or “interval of time between life and death.” At best, this would seem to refer

to an effect on the person’s life expectancy, but this would not be a subjective inquiry,

and it is an impossible leap from any common understanding of the statutory language.18

At a minimum, using the modifier “entire” reinforces the general sense of permanence

that is also created by the insertion of “trajectory,” but which, as explained, is not in the

actual statutory text. Because the Kreiner majority created ambiguity where there was

none, and crafted a statutory interpretation that is, in effect, a judicially constructed house

of cards, we hold that it incorrectly interpreted the third prong of MCL 500.3135(7).

18

It is also to some extent accounted for in another threshold in MCL 500.3135(1):

death.

25

The Kreiner majority aggravated this error, and departed even more dramatically

from the statutory text, by providing an extra-textual “nonexhaustive list of objective

factors” to be used to compare the plaintiff’s pre- and post-incident lifestyle. These

factors are: “(a) the nature and extent of the impairment, (b) the type and length of

treatment required, (c) the duration of the impairment, (d) the extent of any residual

impairment, and (e) the prognosis for eventual recovery.” Kreiner, 471 Mich at 133.19

The Legislature has unambiguously defined the “serious impairment of body function,”

and the role of this Court is to apply the plain language of that definition, not to improve

it with a list of judicially created factors that are not necessarily based in the statute’s

text. In fact, at least some of the Kreiner majority’s factors have no basis in the statutory

text and are instead derived from its extra-textual and extra-definitional additions to the

actual statutory language, “entire” and “trajectory,” and serve to reinforce the ambiguity

that its interpretation of the third prong created, especially given that all of the factors

expressly or impliedly include a temporal component. Because the factors adopted by the

Kreiner majority are not based in the statutory text, and this Court’s role is to apply the

19

The majority correctly observes that I do not object to courts employing factors

when applying statutes in many circumstances. I certainly object, however, to courts

doing so in a manner that not only perverts the statutory language but is also unsupported

by, and inconsistent with, the legislative intent expressed by the statutory language, as the

Kreiner majority did.

26

unambiguous statutory language, not improve it, we hold that the majority erred by

adopting them.20

In summary, the Kreiner majority’s interpretation of the third prong departed from

the idea that a court “should not casually read anything into an unambiguous statute that

is not within the manifest intent of the Legislature as derived from the words of the

statute.” Kreiner, 471 Mich at 157 (CAVANAGH, J., dissenting). Indeed, as I remarked in

dissent, the Kreiner majority’s “interpretation” of the plain language of MCL

500.3135(7) was a “chilling reminder that activism comes in all guises, including so-

called textualism.” Kreiner, 471 Mich at 157. Therefore, we hold that the Kreiner

majority’s interpretation of this prong, including the list of non-exhaustive factors, is not

based in the statute’s text and is incorrect.

20

Indeed, the potential for the Kreiner majority’s interpretation to be read in a

manner that is inconsistent with the statute has been realized in lower court decisions.

For example, in Gagne v Schulte, unpublished opinion per curiam of the Court of

Appeals, issued February 28, 2006 (Docket No. 264788), the Court of Appeals held that a

plaintiff had not suffered a serious impairment of body function even though her knee

injury resulted in surgery and severe restrictions on her movement for a year after the

accident, indefinite continuing restrictions on her ability to perform her pre-accident job

and other activities in which she participated before the accident, and a permanent loss of

stability in her knee and an increased risk of osteoarthritis. The majority reasoned that

these impairments were insufficient to meet the threshold because she might someday be

able to resume some activities with a knee brace and “there is no evidence that this period

of decreased function affected her life so extensively that it altered the trajectory or

course of her entire normal life.” Id., unpub op at 2. Indeed, the majority’s reasoning

seemed to consider whether the plaintiff’s ability to control the direction of her entire life

had been altered, rather than her ability to live her life in a normal manner, given that it

found the threshold was not met despite evidence that the plaintiff had continuing

restrictions on movement, activities, and work, and medically documented long-term

damage.

27

3. STARE DECISIS: SHOULD KREINER BE OVERRULED?

To the extent that the Kreiner majority’s interpretation of the statute was

inconsistent with the foregoing approach, and departed from the legislative intent

expressed in the unambiguous language of the statute, we hold that it was wrongly

decided. Given this conclusion, the question is whether it should be overruled. We hold

that it should be.21

Under the doctrine of stare decisis, “principles of law deliberately examined and

decided by a court of competent jurisdiction should not be lightly departed.” Brown v

Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996) (citations and

quotation marks omitted). Indeed, in order to “‘avoid an arbitrary discretion in the

courts, it is indispensable that [courts] should be bound down by strict rules and

precedents which serve to define and point out their duty in every particular case that

comes before them . . . .’” Petersen v Magna Corp, 484 Mich 300, 314-315; 773 NW2d

21

The dissenters’ stare decisis protestations should taste like ashes in their mouths.

To the principles of stare decisis, to which they paid absolutely no heed as they

denigrated the wisdom of innumerable predecessors, the dissenters now would wrap

themselves in its benefits to save their recent precedent.

Ironically, the very doctrine and approach that the dissent vehemently claims to

adhere to today, from Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), was not

so faithfully applied by the members of the dissent in the past. Indeed, the members of

the dissent have overruled caselaw without even paying lip service to Robinson, see, e.g.,

People v Anstey, 476 Mich 436; 719 NW2d 579 (2006), or after engaging in a cursory or

limited analysis of the factors that they claim fidelity to today. See, e.g., Wesche v

Mecosta Co Rd Comm, 480 Mich 75, 91 n 13 (2008); Al-Shimmari v Detroit Med Ctr,

477 Mich 280, 297 n 10; 731 NW2d 29 (2007); Neal v Wilkes, 470 Mich 661, 667 n 8;

685 NW2d 648 (2004); People v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267

(2004); Mack v Detroit, 467 Mich 186, 203 n 19; 649 NW2d 47 (2002).

28

564 (2009) (opinion by KELLY, C.J.), quoting The Federalist No. 78, p 471 (Alexander

Hamilton) (Clinton Rossiter ed, 1961). As the United States Supreme Court has stated,

the doctrine “promotes the evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” Payne v Tennessee, 501 US 808, 827; 111 S

Ct 2597; 115 L Ed 2d 720 (1991).

Despite its importance, stare decisis is neither an “inexorable command,”

Lawrence v Texas, 539 US 558, 577; 123 S Ct 2472; 156 L Ed 2d 508 (2003), nor “a

mechanical formula of adherence to the latest decision . . . .” Helvering v Hallock, 309

US 106, 119; 60 S Ct 444; 84 L Ed 604 (1940). Ultimately, it is an attempt “to balance

two competing considerations: the need of the community for stability in legal rules and

decisions and the need of courts to correct past errors.” Petersen, 484 Mich at 314. As a

reflection of this balance, there is a presumption in favor of upholding precedent, but this

presumption may be rebutted if there is a special or compelling justification to overturn

precedent. Id. at 319-320. In determining whether a special or compelling justification

exists, a number of evaluative criteria may be relevant, id., but overturning precedent

requires more than a mere belief that a case was wrongly decided. See Brown, 452 Mich

at 365.22

22

In Petersen, Chief Justice KELLY provided a non-exhaustive list of criteria that

may be considered, but none of the criteria is determinative, and they need only be

evaluated if relevant. See Petersen, 484 Mich at 320.

29

In determining whether Kreiner should be overruled, I find several evaluative

criteria particularly relevant: (1) “whether the rule has proven to be intolerable because

it defies practical workability,” (2) “whether reliance on the rule is such that overruling

it would cause a special hardship and inequity,” (3) “whether upholding the rule is likely

to result in serious detriment prejudicial to public interests,” and (4) “whether the prior

decision was an abrupt and largely unexplained departure from precedent.” Petersen,

484 Mich at 320. As applied here, on the balance, these criteria weigh in favor of

overturning Kreiner.

The first criterion weighs heavily in favor of overruling Kreiner because the

Kreiner majority’s departure from the plain language of MCL 500.3135(7) defies

practical workability. As discussed above, the majority took unambiguous statutory text

and, through linguistic gymnastics, contorted it into a confusing and ambiguous test.

Appellate litigation arising out of MCL 500.3135(7) has greatly increased since Kreiner23

and has resulted in confusion. To begin with, the lower courts’ application of Kreiner

has led to inconsistent interpretation of the statutory language, with similarly situated

23

In the six years since Kreiner was decided, there have been three times as many

Court of Appeals cases citing MCL 500.3135(7) as there were in the nine years between

when the amendment was enacted and Kreiner was decided. In the nine years between

when the amendment became effective and when Kreiner was decided, only 86 Court of

Appeals cases cited MCL 500.3135(7). As of May 27, 2010, in the six years since the

Kreiner decision was issued, there have been 254 Court of Appeals cases citing MCL

500.3135(7).

30

plaintiffs being treated differently by different courts.24 Further, some courts have

interpreted Kreiner to create a threshold that is higher than that in Cassidy or DiFranco,

primarily by reading the Kreiner majority’s interpretation of the statute to effectively

create a permanency requirement.25 As discussed, this is contrary to the legislative intent

expressed by the plain language of the statute. Because the Kreiner majority’s

interpretation of the third prong of MCL 500.3135(7) has created ambiguity where there

was none, and increased litigation and confusion, the first factor weighs heavily in favor

of overruling Kreiner.

Second, correcting the errors in the Kreiner majority’s interpretation of MCL

500.3135(7) would not present an undue hardship to reliance interests, and this factor

weighs in favor of overruling Kreiner. As this Court has explained when evaluating a

similar factor in the past, “the Court must ask whether the previous decision has become

24

For example, in Luther v Morris, unpublished opinion per curiam of the Court

of Appeals, issued January 18, 2005 (Docket No. 244483), the Court held that the

plaintiff had suffered a serious impairment of body function where a dislocated elbow

caused her to miss 52 days of work and significantly interfered with her ability to

perform daily personal tasks for a while, but her life returned to normal within a couple

of months after the accident. In contrast, in Guevara v Martinez, unpublished opinion per

curiam of the Court of Appeals, issued May 24, 2005 (Docket No. 260387), the Court

held that there was no serious impairment where the plaintiff suffered a dislocated right

shoulder and a torn anterior rotator cuff that significantly interfered with his ability to

perform daily personal tasks for a couple of months and prevented him from continuing

work as a part-time construction worker during at least the surgery and multiple months

of rehabilitation. The outcomes in these cases are difficult to reconcile.

25

See footnote 20 of this opinion summarizing Gagne v Schulte, unpublished

opinion per curiam of the Court of Appeals, issued February 28, 2006 (Docket No.

264788).

31

so embedded, so accepted, so fundamental, to everyone’s expectations that to change it

would produce not just readjustments, but practical real-world dislocations.” Robinson v

Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000). It further stated that this factor

applies to cases that if overruled “even if they were wrongfully decided, would produce

chaos.” Id. at 466 n 26. Kreiner is not “so” embedded, accepted, or fundamental to

expectations that chaos will result from overruling it. To begin with, Kreiner was

decided only six years ago, and, while it was the first opinion from this Court interpreting

MCL 500.3135(7), it was contrary to the plain text of the statute, which had been in place

since 1995. As the Robinson majority explained, people normally rely on the words of

the statute itself when looking for guidance on how to direct their actions. Robinson, 462

Mich at 467. Further, it is unlikely that motor vehicle drivers, and the victims of motor

vehicle accidents, have altered their behavior in reliance on Kreiner. As noted by the

Robinson majority, where a statute deals with the consequences of accidents, “it seems

incontrovertible that only after the accident would . . . awareness [of this Court’s

caselaw] come,” and “after-the-fact awareness does not rise to the level of a reliance

interest because to have reliance the knowledge must be of the sort that causes a person

or entity to attempt to conform his conduct to a certain norm before the triggering event.”

Id. at 466-467. Similarly, this statute generally involves motor vehicle accidents, and it

strains credibility to think that the average driver and the average future injured party

have altered their behavior in reliance on Kreiner.

The third criterion, the effect on the public interest, also weighs in favor of

overruling Kreiner. Although there may be policy arguments on both sides regarding the

32

costs and benefits of having a more or less difficult threshold for recovery under MCL

500.3135, our interpretation of the statute in this case is truer to the statute’s text than

that of the Kreiner majority, and, thus, our interpretation most closely reflects the policy

balance struck by the Legislature.26 In contrast, Kreiner altered the balance from that

intended by the Legislature by imposing extra-textual burdens to meeting the threshold,

and, as a result, it is difficult to argue that overruling Kreiner to restore the balance

intended by the Legislature would hurt the public interest (or that affirming Kreiner

serves it).

Finally, the fourth criterion is neutral. Kreiner was not an abrupt change from

precedent, but it did provide an interpretation of the statute that was not obvious from the

statute’s text.

On the basis of these evaluative criteria, we hold that Kreiner should be overruled.

4. SUMMARY OF LEGISLATIVE TEST

On the basis of the foregoing, the proper interpretation of the clear and

unambiguous language in MCL 500.3135 creates the following test.

26

The dissent devotes a significant amount of time conducting what is essentially

a policy analysis hypothesizing about the disastrous effects that this opinion will have on

the insurance industry and, thus, concluding that we are undoing the legislative

compromise that was the general backdrop of the no-fault act. While I am cognizant of

the legislative compromise, I am less convinced than the dissent that this Court’s role is

to conduct an independent policy analysis to determine whether the plain language of an

amendment adopted by the Legislature, 20 years after the no-fault act was originally

adopted, is inconsistent with the overall act’s general purposes. Even assuming arguendo

that it could be, I do not believe that broad statements regarding the general purpose of

the act’s adoption in 1973 trump the intent expressed by the Legislature in the plain

language of a later amendment to the act.

33

To begin with, the court should 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. MCL 500.3135(2)(a)(i) and (ii).27 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. Id.

If the court may decide the issue as a matter of law, it should next determine

whether the serious impairment threshold has been crossed. The unambiguous language

of MCL 500.3135(7) provides three prongs that are necessary to establish a “serious

impairment of body function”: (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).

The serious impairment analysis is inherently fact- and circumstance- specific and

must be conducted on a case-by-case basis. As stated in the Kreiner dissent, “[t]he

Legislature recognized that what is important to one is not important to all[;] a brief

impairment may be devastating whereas a near permanent impairment may have little

27

As discussed in footnotes 7 and 8 of this opinion, this provision may

unconstitutionally conflict with MCR 2.116(C)(10) in certain cases. If it does, then a

court should only apply MCL 500.3135(2) to the extent that it is consistent with MCR

2.116(C)(10). We do not reach this issue today, however, because there is no material

factual dispute over any fact necessary to determining whether the serious impairment

threshold has been met.

34

effect.” Kreiner, 471 Mich at 145 (CAVANAGH, J., dissenting). As such, the analysis

does not “lend itself to any bright-line rule or imposition of [a] nonexhaustive list of

factors,” particularly where there is no basis in the statute for such factors. Id.

Accordingly, because “[t]he Legislature avoided drawing lines in the sand . . . so must

we.” Id.

C. APPLICATION OF MCL 500.3135

Under the facts of this case, we hold that plaintiff has met the serious impairment

threshold as a matter of law.

To begin with, there is no factual dispute that is material to determining whether

the serious impairment threshold is met. The parties do not dispute that plaintiff suffered

a broken ankle, was completely restricted from bearing weight on his ankle for a month,

and underwent two surgeries over a 10-month period and multiple months of physical

therapy. The parties do dispute the extent to which plaintiff continues to suffer a residual

impairment and the potential for increased susceptibility to degenerative arthritis.

Plaintiff has provided at least some evidence of a physical basis for his subjective

complaints of pain and suffering,28 but defendant disputes whether there is persuasive

evidence of impairment beyond plaintiff’s subjective complaints. This dispute is not

significant or essential to determining whether the serious impairment threshold is met in

this case, however, because plaintiff has not alleged that the residual impairment, to the

28

The FCEs report that plaintiff’s range of motion in his ankle is not within

normal limits, and the MRI and two doctors’ reports suggest at least some scarring and

degenerative tissue damage around plaintiff’s left ankle.

35

extent that it exists, continues to affect his general ability to lead his pre-incident “normal

life,”29 the third prong of the analysis. Moreover, it is not necessary to establish the first

two prongs. Therefore, the dispute is not material and does not prevent this Court from

deciding whether the threshold is met as a matter of law under MCL 500.3135(2)(a).

The other facts material to determining whether the serious impairment threshold

is met are also undisputed.30 Before the incident, plaintiff’s “normal life” consisted

primarily of working 60 hours a week as a medium truck loader. Plaintiff also frequently

fished in the spring and summer and was a weekend golfer. After the incident, plaintiff

was unable to return to work for at least 14 months and did not return for 19 months. He

never returned to his original job as a medium truck loader, but he suffered no loss in pay

because of the change in job. He was able to fish at pre-incident levels by the spring of

2006 and is able to take care of his personal needs at the same level as before the

incident. There is no allegation that the impairment of body function has affected his

relationship with his significant other or other qualitative aspects of his life.

Next, in light of the lack of a factual dispute that is material to determining

whether the threshold is met, under MCL 500.3135(2)(a), this Court should decide as a

29

Plaintiff stated that his life is “painful, but normal.” He does not allege that any

residual impairment has a significant effect on his ability to participate in or enjoy

activities to the extent that he could before the accident.

30

If there had been other disputed facts that were material to this determination,

we would have to reach the question whether MCL 500.3135(2)(a) is unconstitutional to

the extent that it requires a court to decide material disputed facts as a matter of law. See

footnote 7 of this opinion.

36

matter of law whether plaintiff suffered a serious impairment of body function under the

three prongs in MCL 500.3135(7).

With regard to the first prong, plaintiff has shown an objectively manifested

impairment of body function. There is no dispute that plaintiff has presented evidence

that he suffered a broken ankle and actual symptoms or conditions that someone else

would perceive as impairing body functions, such as walking, crouching, climbing, and

lifting weight. Even 14 months after the incident, an FCE report observed that ankle pain

and a reduced range of motion inhibited these body functions. Thus, plaintiff has

satisfied this prong.

With regard to the second prong, the impaired body functions were important to

plaintiff. His testimony establishes that being unable to walk and perform other functions

were of consequence to his ability to work. Thus, the second prong of MCL 500.3135(7)

is met.

The next question in this case is whether the third prong is met, but we hold that

plaintiff has shown that the impairment affected his general ability to lead his normal life

because it influenced some of his capacity to live in his normal, pre-incident manner of

living. Before the incident, plaintiff’s normal manner of living consisted primarily of

working, for 60 hours a week, and secondarily his hobbies of fishing and golfing. After

the incident, at least some of plaintiff’s capacity to live in this manner was affected.

Specifically, for a month after the incident, plaintiff could not bear weight on his left

ankle. He underwent two surgeries over a period of 10 months and multiple months of

physical therapy. Moreover, his capacity to work, the central part of his pre-incident

37

“normal life,” was affected.31 Whereas before the incident he spent most of his time

working, after the incident he was unable to perform functions necessary for his job for at

least 14 months, and he did not return to work for 19 months.32 On the basis of these

facts, we conclude that some of plaintiff’s capacity to live in his pre-incident manner of

living was affected, and the third prong of MCL 500.3135(7) is satisfied.33

Because all three prongs of MCL 500.3135(7) are satisfied, we hold, as a matter of

law, that plaintiff has met the serious impairment threshold requirement under MCL

500.3135(1).

D. RESPONSE TO THE DISSENT

Despite the dissent’s length, it provides very little substantive disagreement or

criticism of the statutory interpretation presented in this opinion and very little response

to our criticisms of the statutory interpretation in Kreiner. Where the dissent does

actually address the substance of the opinion, its criticisms are often based not on the

31

As noted, it is unclear from the record the extent to which the impairment

affected plaintiff’s ability to fish in the first year after the incident or his ability to golf in

the first year and a half after the incident, or the extent to which he actually undertook

either activity in those periods.

32

It could be significant that plaintiff’s job has changed, even though his pay is the

same, but there is no evidence suggesting that this was an effect of impairment.

Therefore, this fact is not relevant to the “normal life” inquiry here.

33

Our analysis focuses on plaintiff’s pre- and post-incident activities and the

extent to which he was able to participate in them after the incident because those are the

facts in the record. The facts that the parties considered relevant in developing the record

were, no doubt, influenced by the Kreiner majority’s erroneous deviation from the

statutory language. As noted, however, many other considerations could typically be

relevant to determining how an impairment affects a person’s ability to live in his or her

pre-incident normal manner of living.

38

actual holdings of the majority opinion but, instead, on the dissent’s misunderstandings

or overgeneralizations of those holdings.

For example, the dissent complains that the majority “resuscitate[s]” my opinion

in DiFranco.34 As a result, the dissent resuscitates old criticisms of DiFranco and attacks

the majority for failing to recognize the Legislature’s intent, as expressed in the statute’s

legislative history, to reject DiFranco in favor of Cassidy.35 As is plainly evident in the

analysis, however, this opinion faithfully applies the text of the statute, even where that

text is inconsistent with DiFranco. The opinion fully recognizes the Legislature’s

adoption of Cassidy where the Legislature indicated an intent to do so through the text of

the statute and “resuscitates” DiFranco only in the narrow places where, similarly, the

statutory text indicates a legislative intent to do so.36

Additionally, the dissent’s comments on the majority’s lack of use of legislative

history are ill-founded on two levels. First, contrary to the dissent’s assertion that I have

34

The only explanation that I can discover for the dissent’s reaching this

conclusion is its baseless accusation that the majority is essentially reading the third

prong out of the statute. It is unclear to me, however, how reading and applying the plain

text of the statute, instead of enhancing and extending the statute through creative use of

a thesaurus and extra-textual factors, could equate to reading that language out of the

statute.

35

Interestingly, while criticizing the majority for supposedly reviving DiFranco,

the dissent also criticizes us for not going far enough in its revival by not adopting the

factors that I used in DiFranco.

36

It appears that the dissent itself does not actually believe that we are

resuscitating DiFranco, given that it so vigorously, albeit erroneously, argues that the

only difference between our decision today and Kreiner is that Kreiner adopted temporal

requirements.

39

“never questioned the utility of legislative history” and that “there is no principled

reason” not to use it in this case, I have repeatedly stated that legislative history should

only be used to interpret a statute when statutory language is ambiguous. See, e.g.,

People v Gardner, 482 Mich 41; 753 NW2d 78 (2008) (CAVANAGH, J., dissenting);

Bukowski v Detroit, 478 Mich 268; 732 NW2d 75 (2007) (CAVANAGH, J., concurring);

Lansing Mayor v Pub Service Comm, 470 Mich 154, 174; 680 NW2d 840 (2004)

(CAVANAGH, J., dissenting).37 The statutory language at issue here is not ambiguous.38

Second, even if legislative history should be used, our application of the plain language

37

To the extent the dissent insinuates that I have relied on legislative history to

interpret an unambiguous statute, it is reaching. None of the cases that the dissent cites

involves instances where I relied on legislative history to identify an ambiguity or give

unambiguous text a meaning inconsistent with the plain language of the statute. In most,

I merely emphasized that the legislative history confirmed the meaning in the

unambiguous text. See, e.g., Jackson v Green Estate, 484 Mich 209, 230; 771 NW2d 675

(2009) (CAVANAGH, J., dissenting); Koester v City of Novi, 458 Mich 1, 16; 580 NW2d

835 (1998); People v Sloan, 450 Mich 160, 183-184; 538 NW2d 380 (1995); Grand

Trunk Western R Co v Fenton, 439 Mich 240, 247; 482 NW2d 706 (1992).

38

The dissent references Judge Leventhal’s remark that using legislative history

for statutory interpretation is the equivalent of walking into a crowded room and looking

for one’s friends. Similar to my approach, however, this analogy has been used by

justices of the United States Supreme Court to explain why legislative history should not

be used to interpret clear and unambiguous statutory language. See Exxon Mobil Corp v

Allapattah Servs, Inc, 545 US 546, 568-570; 125 S Ct 2611; 162 L Ed 2d 502 (2005),

using the criticism to explain that legislative history should not be used to determine

whether Congress intended an otherwise unambiguous statute to overrule a court’s

interpretation of an earlier version of the statute because “[e]xtrinsic materials have a role

in statutory interpretation only to the extent they shed a reliable light on the enacting

Legislature’s understanding of otherwise ambiguous terms.” See also Conroy v Aniskoff,

507 US 511, 518-519; 113 S Ct 1562; 123 L Ed 2d 229 (1993) (Scalia, J., concurring)

(using the criticism to explain why the majority should have stopped its analysis after

concluding that a statute was unambiguous).

40

of the statute is consistent with the House legislative analysis’s statement that the

amendments were intended to return the law to a threshold “resembling” Cassidy. House

Legislative Analysis, HB 4341, December 18, 1995. The dissent’s statements to the

contrary are, again, largely based on its mistaken characterization of the majority opinion

as resuscitating DiFranco and ignoring Cassidy.

The dissent also repeatedly states that the majority opinion holds that temporal

considerations are “wholly or largely irrelevant” to the serious impairment threshold, and,

accordingly, it spends a significant amount of energy explaining why temporal

considerations are relevant and accusing the majority of holding that the threshold is met

if “the plaintiff’s general ability to lead his normal life has been affected for even a single

moment in time.” Contrary to the dissent’s cries, there is simply no basis in our analysis

for concluding that we hold that temporal considerations are irrelevant or that a

momentary impairment is sufficient. The opinion merely notes that there is no specific

express temporal requirement in the text of the statute and rejects Kreiner’s strained

attempts to insert what was essentially a permanency requirement into the statute.39 The

dissent’s mistaken characterizations of this opinion amount to nothing more than, like

Kreiner itself, yet another attempt to distract courts and parties from the actual text of

MCL 500.3135.

39

Indeed, the dissent is so blindly intent on concluding that the majority must be

rejecting temporal considerations that it fails to consider that its triumphant discovery of

the majority’s “hypocrisy” in referencing time periods in our application of MCL

500.3135(2) is nothing more than a reflection of the fact that we are not holding that

temporal considerations are irrelevant.

41

IV. CONCLUSION

We hold that Kreiner should be overruled because the Kreiner majority’s

interpretation of MCL 500.3135 departed from the statute’s clear and unambiguous text.

Applying the unambiguous statutory language, we hold that as a question of law, in this

case, plaintiff established that he suffered a serious impairment of body function. Thus,

we reverse the Court of Appeals and remand the case to the trial court for proceedings

consistent with this opinion.

KELLY, C.J., and WEAVER (except for the part entitled “Stare Decisis”),

and HATHAWAY, JJ., concurred with CAVANAGH, J.

42

STATE OF MICHIGAN

SUPREME COURT

RODNEY MCCORMICK,

Plaintiff-Appellant,

v No. 136738

LARRY CARRIER,

Defendant,

and

ALLIED AUTOMOTIVE GROUP, INC.,

indemnitor of GENERAL MOTORS

CORPORATION,

Defendant-Appellee.

WEAVER, J. (concurring).

I concur in and sign all of the majority opinion except part III(B)(3), regarding

stare decisis. I fully support the decision to overrule Kreiner v Fischer, 471 Mich 109;

683 NW2d 611 (2004). As I wrote in Jones v Olson, 480 Mich 1169, 1173 (2008):

By importing the concept of permanency of injury into MCL

500.3135—a concept that is nowhere referenced in the text of the statute—

the majority of four (Chief Justice TAYLOR and Justices CORRIGAN,

YOUNG, and MARKMAN), in Kreiner v Fischer, 471 Mich 109 (2004),

actively and judicially legislated a permanency and temporal requirement to

recover noneconomic damages in automobile accident cases. The Kreiner

interpretation of MCL 500.3135 is an unrestrained misuse and abuse of the

power of interpretation masquerading as an exercise in following the

Legislature’s intent.

With regard to the policy of stare decisis, my view is that past precedent should

generally be followed but that to serve the rule of law, in deciding whether wrongly

decided precedent should be overruled, each case should be looked at individually on its

facts and merits through the lens of judicial restraint, common sense, and fairness. I

agree with the sentiment recently expressed by Chief Justice Roberts of the United States

Supreme Court in his concurrence to the decision in Citizens United v Fed Election

Comm, 558 US ___, ___; 130 S Ct 876, 920; 175 L Ed 2d 753, 806 (2010), when he said

that

stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539

U.S. 558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), nor “a

mechanical formula of adherence to the latest decision,” Helvering v.

Hallock, 309 U.S. 106, 119, 60 S. Ct. 444, 84 L. Ed. 604 (1940) . . . . If it

were, segregation would be legal, minimum wage laws would be

unconstitutional, and the Government could wiretap ordinary criminal

suspects without first obtaining warrants. See Plessy v. Ferguson, 163 U.S.

537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), overruled by Brown v. Board of

Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Adkins v.

Children's Hospital of D. C., 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785

(1923), overruled by West Coast Hotel Co v. Parrish, 300 U.S. 379, 57 S.

Ct. 578, 81 L. Ed. 703 (1937); Olmstead v. United States, 277 U.S. 438, 48

S. Ct. 564, 72 L. Ed. 944 (1928), overruled by Katz v. United States, 389

U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

Chief Justice Roberts further called stare decisis a “principle of policy” and said that it “is

not an end in itself.” Id. at ___; 130 S Ct at 920; 175 L Ed 2d at 807. He explained that

“[i]ts greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in

the unusual circumstance when fidelity to any particular precedent does more to damage

2

this constitutional ideal than to advance it, we must be more willing to depart from that

precedent.” Id at ___; 130 S Ct at 921; 175 L Ed 2d at 807.1

I agree with Chief Justice Roberts that stare decisis is a policy and not an

immutable doctrine. I chose not to sign Chief Justice KELLY’s lead opinion in Petersen v

Magna Corp, 484 Mich 300, 316-320; 773 NW2d 564 (2009), because it proposed to

create a standardized test for stare decisis. Likewise, I do not sign the majority opinion’s

stare decisis section in this case because it applies Petersen. There is no need for this

Court to adopt any standardized test regarding stare decisis. In fact, it is an impossible

1

It appears that the dissent in this case does not agree with Chief Justice Roberts.

The dissent lists 12 cases that have been overruled by this Court in the past 18 months.

While the dissenting justices may feel aggrieved by this Court overruling those 12 cases,

amongst those cases were some of the most egregious examples of judicial activism that

did great harm to the people of Michigan. Those decisions were made by the “majority

of four,” including the dissenting justices, under the guise of ideologies such as

“textualism” and “judicial traditionalism.” One of the dissenting justices, Justice YOUNG,

expressed his apparent contempt for the common law and common sense in his 2004

article in the Texas Review of Law and Politics, where Justice YOUNG stated:

Consequently, I want to focus my remarks here on the

embarrassment that the common law presents—or ought to present—to a

conscientious judicial traditionalist. . . .

To give a graphic illustration of my feelings on the subject, I tend to

think of the common law as a drunken, toothless ancient relative, sprawled

prominently and in a state of nature on a settee in the middle of one’s

genteel garden party. Grandpa’s presence is undoubtedly a cause of

mortification to the host. But since only the most ill-bred of guests would

be coarse enough to comment on Grandpa’s presence and condition, all

concerned simply try ignore him. [Young, A judicial traditionalist

confronts the common law, 8 Texas Rev L & Pol 299, 301-302 (2004).]

3

task. There are many factors to consider when deciding whether or not to overrule

precedent, and the importance of such factors often changes on a case-by-case basis.2

In the end, the consideration of stare decisis and whether to overrule wrongly

decided precedent always includes service to the rule of law through an application and

exercise of judicial restraint, common sense, and a sense of fairness—justice for all.

In serving the rule of law and applying judicial restraint, common sense, and a

sense of fairness to the case at hand, I agree with and join the majority opinion’s holding

that Kreiner is overruled.

Elizabeth A. Weaver

2

Over the past decade, the principal tool used by this Court to decide when a

precedent should be overruled is the set of guidelines that was laid out in Robinson v

Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), an opinion written by former Justice

TAYLOR, signed by Justices CORRIGAN, YOUNG, MARKMAN and myself, and that I have

used numerous times. By no means do I consider the Robinson guidelines a “be-all, end-

all test” that constitutes precedent of this Court to be used whenever this Court considers

overruling precedent. I view Robinson as merely providing guidelines to assist this Court

in its legal analysis when pertinent.

4

1/Jan 10—DMH

STATE OF MICHIGAN

SUPREME COURT

RODNEY MCCORMICK,

Plaintiff-Appellant,

v No. 136738

LARRY CARRIER,

Defendant,

and

ALLIED AUTOMOTIVE GROUP, INC,

indemnitor of GENERAL MOTORS

CORPORATION,

Defendant-Appellee.

HATHAWAY, J. (concurring).

I fully concur with Justice CAVANAGH’s analysis and conclusion in this matter and

I support overruling Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004). I write

separately to express my thoughts on the doctrine of stare decisis. Any analysis of the

impact of stare decisis must focus on the individual case and the reason for overruling

precedent.1 The reasons for overruling Kreiner are paramount to any articulated test, and

the special and compelling justifications to do so are overwhelming in this case. I agree

1

For further discussion of my views regarding stare decisis, please see my

concurring statement in U of M v Titan Ins Co, ___ Mich ___; ___ NW2d ___ (2010).

1/Jan 10—DMH

with the well-articulated reasons expressed by Justice CAVANAGH, and I fully support

overruling Kreiner.

Diane M. Hathaway

2

STATE OF MICHIGAN

SUPREME COURT

RODNEY MCCORMICK,

Plaintiff-Appellant,

v No. 136738

LARRY CARRIER,

Defendant,

and

ALLIED AUTOMOTIVE GROUP, INC,

indemnitor of GENERAL MOTORS

CORPORATION,

Defendant-Appellee.

MARKMAN, J. (dissenting).

I respectfully dissent from the majority’s decision to overrule Kreiner v Fischer,

471 Mich 109; 683 NW2d 611 (2004). The no-fault automobile insurance act, MCL

500.3135(1), provides that “[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.” The issue here is whether plaintiff has suffered a serious

impairment of body function. “‘[S]erious 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(7).

In Kreiner, 471 Mich at 132-133, this Court held that in determining whether an

impairment affects the plaintiff’s general ability to lead his normal life, “a court should

engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the

accident as well as the significance of any affected aspects on the course of the plaintiff’s

overall life.” In addition, Kreiner indicated that certain factors, such as the duration of

the impairment, may be of assistance in evaluating whether the plaintiff’s general ability

to lead his normal life has been affected. Id. at 133.

The majority overrules Kreiner, rejecting these factors and holding that temporal

considerations are wholly or largely irrelevant in determining whether an impairment

affects the plaintiff’s general ability to lead his normal life. The majority instead holds

that, as long as the plaintiff’s general ability to lead his normal life has been affected,

apparently for even a single moment in time, the plaintiff has suffered a “serious

impairment of body function.” This conclusion is at odds with the actual language of the

no-fault automobile act and nullifies the legislative compromise embodied in that act. I

continue to believe that Kreiner was correctly decided, and that temporal considerations

are highly relevant-- indeed necessary-- in determining whether an impairment affects the

plaintiff’s general ability to lead his normal life. By nullifying the legislative

compromise, which was grounded in concerns over excessive litigation, the over-

compensation of minor injuries, and the availability of affordable insurance, the Court’s

decision today will resurrect a legal environment in which each of these hazards reappear

and threaten the continued fiscal integrity of our no-fault system.

2

Because I do not believe that the lower courts erred in concluding that plaintiff in

this case has not suffered a serious impairment of body function, I would affirm the

judgment of the Court of Appeals.

I. FACTS AND HISTORY

Because the majority opinion provides only a cursory presentation of the facts, in a

case requiring a fact-intensive analysis, I find it necessary to set forth a more thorough

discussion of these facts. Beginning in August of 2002, plaintiff was employed by Allied

Systems, and over the years, he has held various positions with the company.1 On

January 17, 2005, approximately six months after beginning his position as a medium

truck loader, plaintiff was struck by a truck driven by plaintiff’s co-worker and co-

defendant, Larry Carrier, while shuttling vehicles at a General Motors plant. Plaintiff

was knocked down, and the wheels of the truck ran over his left ankle, fracturing his

medial malleolus. Plaintiff was immediately taken to the hospital and was released that

same day. Two days later, he underwent surgery for the implantation of a device to

stabilize his ankle fracture. Immediately following surgery, plaintiff was on crutches and

in a boot for approximately four weeks and, during this time, he was restricted from

bearing weight on his left leg. Additionally, plaintiff underwent physical therapy.2

1

Before plaintiff began working for Allied, he installed windows. When he first

began working for Allied, he loaded trains, and after approximately six months, he took a

“utility job,” providing support to other departments as needed. In June of 2004, he

began working as a medium truck loader.

2

It is not altogether clear how long plaintiff’s physical therapy actually lasted. In

plaintiff’s deposition, he indicated that he underwent “many months” of therapy.

3

On October 21, 2005, plaintiff again underwent surgery on his ankle, this time to

remove the implanted device. The surgeon reported that plaintiff’s ankle had “healed

nicely.” On November 5, 2005, at the request of Allied, plaintiff was examined by Dr.

Paul Drouillard, who stated that plaintiff could return to work with restrictions of no

prolonged standing or walking for three weeks, after which time, plaintiff could return to

work with no restrictions. On November 17, 2005, plaintiff was examined by his

surgeon, who observed that plaintiff’s “wound is healed very nicely” and that plaintiff

“needs to be in seated work for approximately six weeks.”

On January 12, 2006, plaintiff’s surgeon examined him and cleared him to return

to work with no restrictions. At this examination, plaintiff reported to his surgeon that

“[h]is medial malleolus is not giving him any pain.” The surgeon observed that plaintiff

had an “excellent range of motion with no specific tenderness.” Upon returning to work

for several days, however, plaintiff indicated that performing the physical tasks that his

job required, such as walking, climbing, and crouching, caused his ankle to hurt. After

plaintiff’s request for a different assignment was denied, plaintiff went back on workers’

compensation.

However, in his response to defendant’s motion for summary disposition, plaintiff

indicated that he had six weeks of therapy. And, during plaintiff’s oral argument

opposing defendant’s motion for summary disposition, plaintiff’s counsel claimed that

plaintiff underwent 18 weeks of therapy.

4

On March 16, 2006, Allied required plaintiff to undergo a functional capacity

evaluation (FCE),3 which showed that plaintiff could not fully perform all of his previous

job duties.4 During this evaluation, when asked what his goal was in returning to work,

plaintiff responded, “I don’t want to go back to work; there is talk about a buyout and I

think I want to do that.” Plaintiff also reported that his ankle pain was a three on a scale

of zero to ten, with ten being the highest.

On May 31, 2006, Dr. Drouillard again examined plaintiff, at the request of Allied.

Dr. Drouillard found no objective abnormality to correspond to plaintiff’s complaints and

opined that plaintiff was magnifying his symptoms. Dr. Drouillard also observed that,

although plaintiff claimed that he had been wearing an ankle brace for the last two weeks,

the tan lines on plaintiff’s left and right feet were symmetrical, consistent with wearing

flip-flops, with no break in his tan lines to indicate that he had been wearing the brace at

all. Dr. Drouillard believed that plaintiff could return to work unrestricted and that

plaintiff’s ankle required no further treatment.

On June 12, 2006, plaintiff underwent an MRI test; the physiatrist who reviewed

the MRI and performed a follow-up examination found that there was some evidence of

ligamentous injury, but he did not establish a plan to decrease plaintiff’s pain because

3

An FCE is “an all-encompassing term to describe the physical assessment of an

individual’s ability to perform work-related activity.” American Occupational Therapy

Association, <http://ww.aota.org/Consumers/WhatisOT/WI/Facts/35117.aspx> (accessed

July 1, 2010).

4

This was due in part to shoulder pain resulting from a preexisting and unrelated

shoulder injury.

5

there was little the physiatrist could do.5 At this examination, plaintiff reported that his

pain was a six on a scale of zero to ten, that the pain was worse with “any movement,”

and that nothing alleviates that pain. On June 20, 2006, Dr. Drouillard reviewed the MRI

results and found that plaintiff’s ankle had healed well and that his opinion from May 31,

2006 had not changed.

Shortly thereafter, plaintiff’s workers’ compensation benefits were terminated.6

At this point, plaintiff sought another FCE so that he could return to work. On August 1,

2006, the FCE indicated that plaintiff was able to perform essential job demands without

restriction. At this FCE, plaintiff reported that he experienced “occasional aching” in his

ankle, and that there were no “activities that aggravated his symptoms in the left ankle

(including prolonged standing, prolonged walking).” Plaintiff reported that his pain level

was a two on a scale of zero to ten and, during the two weeks immediately preceding the

FCE, his highest pain level had been a three and his lowest pain level had been a one. By

the completion of the FCE, plaintiff reported his pain level at zero. On August 16, 2006,

approximately 17 months after the accident, plaintiff returned to work and Allied

5

A physiatrist is a medical doctor who practices physiatry, “a medical specialty

for the treatment of disease and injury by physical agents, as exercise or heat therapy.”

Random House Webster’s College Dictionary (1991).

6

Plaintiff began receiving workers’ compensation in January 2005. Plaintiff

claims that he lost $66,000 in wages, the difference between his salary and his workers’

compensation benefits for the time he was not working. However, the instant case only

involves noneconomic damages. Lost wages are economic damages and are

compensable as personal protection insurance benefits, MCL 500.3107(1)(b), and/or

through a tort claim against the party at fault to recover excess economic losses, MCL

500.3135(3)(c).

6

assigned him to a new job with different physical requirements, and with no reduction in

pay. Plaintiff volunteered to be assigned to this other job, and has been able to perform

his new job duties since that time.

During his recuperation, plaintiff did not require any assistance with normal

household tasks. Additionally, he was able to drive and his injuries have not affected his

relationship with his wife in any way.7 Outside of work, plaintiff was able to engage in

most of the activities in which he was engaged before his injury, such as fishing.8

Importantly, by plaintiff’s own admission at his deposition in October of 2006, his life

was “normal” despite some “occasional aching.”

On March 24, 2006, plaintiff filed a third-party action against Carrier (the driver

of the truck) and General Motors Corporation (GM).9 Carrier was later released by

7

Plaintiff’s wife has not brought a loss-of-consortium claim.

8

Although the majority suggests that plaintiff returned to fishing at pre-injury

levels by the spring and summer of 2006, the record indicates that plaintiff’s fishing

activities had never been interrupted. Plaintiff was asked if he “[s]till fish[ed] the same

amount of time as [he] fished before the accident when [he] get[s] a chance,” to which

plaintiff replied, “When I get a chance.” Furthermore, defendant argued in its motion for

summary disposition that plaintiff’s fishing activities were uninterrupted by the injury,

and plaintiff did not dispute this. Plaintiff essentially conceded this fact and instead

argued that the disruption in his life as a result of his injuries was centered on his inability

to work. Plaintiff also was a weekend golfer. The record reflects that since plaintiff

returned to work in August 2006, he had only golfed once, using a golf cart. We do not

know whether plaintiff was able to golf during the time between his accident in January

2005 and August 2006. Defendant argued in its motion for summary disposition that

plaintiff continued to engage in his pre-accident level of golfing activity, and again

plaintiff did not argue to the contrary.

9

With GM’s bankruptcy, the parties stipulated to a change in case caption and

party, adding Allied Automotive Group, Inc., indemnitor of GM; plaintiff’s employer,

7

stipulation of the parties, and the trial court granted GM’s motion for summary

disposition, finding that plaintiff had undergone a relatively good recovery and could not

meet the “serious impairment of body function” threshold.

The Court of Appeals affirmed, with one judge dissenting, concluding that the

impairment did not affect plaintiff’s general ability to lead his normal life. McCormick v

Carrier, unpublished opinion per curiam of the Court of Appeals, issued March 25, 2008

(Docket No. 275888). The majority cited various facts to support its conclusion, such as

plaintiff’s golfing, fishing, driving, caring for himself, and returning to work without

restriction. The dissent would have reversed for two reasons: first, on the basis that

plaintiff’s entire life, including the possibility of future problems, must be considered;

and, second, on the basis that there was evidence to indicate that plaintiff’s life was not

currently normal. The evidence that the dissent relied on to reach this conclusion was

that plaintiff was assigned to a job with reduced physical requirements and the doctors

had identified “some indication of degenerative joint disease in [plaintiff’s] ankle.” Id.,

unpub op at 2 (DAVIS, J., dissenting).

On October 22, 2008, this Court denied plaintiff’s application for leave to appeal,

although Chief Justice KELLY and Justices CAVANAGH and WEAVER would have granted

leave to appeal. 482 Mich 1018 (2008). However, after the composition of this Court

changed when Justice HATHAWAY replaced former Chief Justice TAYLOR on January 1,

Allied Systems, is a subsidiary of Allied Automotive Group, Inc. This Court entered an

order in accordance with this stipulation. 485 Mich 851 (2009).

8

2009, this Court granted plaintiff’s motion for reconsideration, even though such motion

had not raised any new legal arguments. 485 Mich 851 (2009).

II. STANDARD OF REVIEW

This case presents issues of statutory interpretation, which this Court reviews de

novo. Dep’t of Transp v Tompkins, 481 Mich 184, 190; 749 NW2d 716 (2008). We also

review rulings on motions for summary disposition de novo. Spiek v Dep’t of Transp,

456 Mich 331, 337; 572 NW2d 201 (1998).

III. ANALYSIS

A. HISTORY OF NO-FAULT INSURANCE ACT

In Michigan, before the enactment of the no-fault insurance act, the only available

recourse to victims of motor vehicle accidents seeking to recover damages was to file a

common-law tort action. “[U]nder [this] tort liability system[,] the doctrine of

contributory negligence denied benefits to a high percentage of motor vehicle accident

victims, minor injuries were overcompensated, serious injuries were undercompensated,

long payment delays were commonplace, the court system was overburdened, and those

with low income and little education suffered discrimination.” Shavers v Attorney

General, 402 Mich 554, 579; 267 NW2d 72 (1978). In response to these deficiencies, the

Legislature enacted the no-fault automobile insurance act, MCL 500.3101 et seq.,

effective March 30, 1973. The primary goal of the no-fault act is “to provide victims of

motor vehicle accidents assured, adequate, and prompt reparation for certain economic

losses.” Shavers, 402 Mich at 579. In order to meet this objective, the Legislature

decided to make no-fault insurance compulsory, i.e., “whereby every Michigan motorist

9

would be required to purchase no-fault insurance or be unable to operate a motor vehicle

legally in this state.” Id. In addition, “[i]n exchange for the payment of . . . no-fault

economic loss benefits from one’s own insurance company, the Legislature limited an

injured person’s ability to sue a negligent operator or owner of a motor vehicle for bodily

injuries.” Kreiner, 471 Mich at 115. That is, with the enactment of the no-fault act, “the

Legislature abolished tort liability generally in motor vehicle accident cases and replaced

it with a regime that established that a person injured in such an accident is entitled to

certain economic compensation from his own insurance company regardless of fault.” Id.

at 114.10 In exchange for economic loss benefits regardless of fault, “the Legislature

significantly limited the injured person’s ability to sue a third party for noneconomic

damages, e.g., pain and suffering.” Id. at 115. More specifically, no tort suit against a

third party for noneconomic damages is permitted unless the injured person “has suffered

death, serious impairment of body function, or permanent serious disfigurement.” MCL

500.3135(1).11

10

The injured person’s insurance company is responsible for all expenses incurred

for medical care, recovery, and rehabilitation as long as the service, product, or

accommodation is reasonably necessary and the charge is reasonable. MCL

500.3107(1)(a). There is no monetary limit on such expenses, and this entitlement can

last for the person’s lifetime. An injured person is also entitled to recover from his own

insurance company up to three years of earnings loss, i.e., loss of income from work that

the person would have performed if he had not been injured. MCL 500.3107(1)(b). An

injured person can also recover “replacement” expenses, i.e., expenses reasonably

incurred in obtaining ordinary and necessary services that the injured person would

otherwise have performed. MCL 500.3107(1)(c). Further, an at-fault driver is still liable

in tort for an injured person’s excess economic damages. MCL 500.3135(3)(c).

11

In its entirety, MCL 500.3135(1) provides:

10

The Legislature did not initially define the language that is in dispute in this case--

“serious impairment of body function”-- and this Court itself struggled in the process of

giving reasonable meaning to this language. In Advisory Opinion re Constitutionality of

1972 PA 294, 389 Mich 441, 481; 208 NW2d 469 (1973), we held that whether the

plaintiff has suffered a “serious impairment of body function” is “within the province of

the trier of fact . . . .” However, in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22

(1982), noting that an advisory opinion “‘is not precedentially binding in the same sense

as a decision of the Court after a hearing on the merits,’” id. at 495 (citation omitted), this

Court held:

[W]hen there is no factual dispute regarding the nature and extent of

a plaintiff’s injuries, the question of serious impairment of body function

shall be decided as a matter of law by the court. Likewise, if there is a

factual dispute as to the nature and extent of a plaintiff’s injuries, but the

dispute is not material to the determination whether plaintiff has suffered a

serious impairment of body function, the court shall rule as a matter of law

whether the threshold requirement . . . has been met. [Id. at 502.]

In addition, Cassidy held that the phrase “serious impairment of body function” refers to

“objectively manifested injuries” that impair “important body functions.” Id. at 504-505.

Cassidy also held that “the Legislature intended an objective standard that looks to the

effect of an injury on the person’s general ability to live a normal life.” Id. at 505.

Finally, Cassidy held that although “an injury need not be permanent to be serious,”

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.

11

“[p]ermanency is, nevertheless, relevant” because “[t]wo injuries identical except that

one is permanent do differ in seriousness.” Id. at 505-506.

However, only four years later, in DiFranco v Pickard, 427 Mich 32; 398 NW2d

896 (1986), this Court overruled Cassidy. DiFranco held that “[i]f reasonable minds can

differ as to whether the plaintiff suffered a serious impairment of body function, the issue

must be submitted to the jury, even if the evidentiary facts are undisputed. Id. at 58. In

addition, DiFranco held that the “impairment need not be of . . . an important body

function,” and it is unnecessary to look to the effect of the injury on the person’s

“‘general ability to live a normal life.’” Id. at 39. DiFranco also held that, although the

plaintiff must prove a “medically identifiable injury,” this can be done on the basis of

“the plaintiff’s subjective complaints or the symptoms of an injury.” Id. at 75. Finally,

DiFranco held that the following factors should be considered when determining whether

the impairment was serious:

The extent of the impairment, the particular body function impaired, the

length of time the impairment lasted, the treatment required to correct the

impairment, and any other relevant factors. [Id. at 69-70.]

In 1995, the Legislature amended the no-fault act. In particular, it amended MCL

500.3135(2)(a), which provides:

The issues of whether an injured person has suffered serious

impairment of body function or permanent serious disfigurement are

questions of law for the court if the court finds either of the following:

(i) There is no factual dispute concerning the nature and extent of

the person’s injuries.

(ii) There is a factual dispute concerning the nature and extent of the

person’s injuries, but the dispute is not material to the determination as to

12

whether the person has suffered a serious impairment of body function or

permanent serious disfigurement.

In addition, the Legislature defined “serious impairment of body function” to mean “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(7). In other words, the

Legislature essentially rejected DiFranco and, with one exception, codified Cassidy.12

B. KREINER V FISCHER

In Kreiner, this Court for the first time interpreted the Legislature’s definition of

“serious impairment of body function.” Because “generally” means “‘for the most part,’”

Kreiner held that “determining whether a plaintiff is ‘generally able’ to lead his normal

life requires considering whether the plaintiff is, ‘for the most part’ able to lead his

normal life.” Kreiner, 471 Mich at 130, quoting Random House Webster’s College

Dictionary (1991). In addition, because “lead” means “‘to conduct or bring in a

particular course,’” Kreiner held that “the effect of the impairment on the course of a

plaintiff’s entire normal life must be considered.” Id. at 130-131, quoting Random House

Webster’s Unabridged Dictionary (2001). Therefore, Kreiner concluded, “[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

12

That one exception is that while Cassidy, 415 Mich at 505, required an

evaluation of “the effect of an injury on the person’s general ability to live a normal life,”

MCL 500.3135(7) requires an evaluation of the effect of an injury on “the person’s

general ability to lead his or her normal life.” (Emphasis added.) That is, while the

Cassidy test was exclusively objective, the MCL 500.3135(7) test is at least partially

subjective.

13

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.” Id.

at 131.

Kreiner established a “multi-step process . . . for separating out those plaintiffs

who meet the statutory threshold from those who do not.” Id. First, the court must

determine whether there is a factual dispute that is material to the determination whether

the person has suffered a serious impairment of body function.13 Second, the court must

determine whether an important body function has been impaired. Third, the court must

determine whether the impairment is objectively manifested.14 Finally, the court must

determine whether the impairment affects the plaintiff’s general ability to lead his or her

normal life. “In determining whether the course of the plaintiff’s normal life has been

affected, a court should engage in a multifaceted inquiry, comparing the plaintiff’s life

before and after the accident as well as the significance of any affected aspects on the

course of the plaintiff’s overall life.” Id. at 132-133. Kreiner indicated that the following

factors may be of assistance in evaluating whether the plaintiff’s general ability to

conduct the course of his normal life has been affected:

13

If there is such a dispute, the court cannot decide the issue as a matter of law;

however, if there is no such dispute, the court can so decide.

14

“Subjective complaints that are not medically documented are insufficient.” Id.

at 132.

14

(a) the nature and extent of the impairment, (b) the type and length

of treatment required, (c) the duration of the impairment,[15] (d) the extent

of any residual impairment,[16] and (e) the prognosis for eventual recovery.

[Id. at 133.]

Although the dissent in Kreiner essentially agreed with the majority’s analysis of the

language “an objectively manifested impairment of an important body function,” it

disagreed with the majority’s analysis of the language “that affects the person’s general

ability to lead his or her normal life.” Most significantly in this regard, the dissent

rejected the factors set forth by the majority on the basis that “time or temporal

considerations” are inappropriate considerations. Id. at 147 (CAVANAGH, J., dissenting).

C. MAJORITY’S NEW TEST

It is appropriate that Justice CAVANAGH, the authoring justice of the majority

opinion in DiFranco, which was rejected by the Legislature, and also the authoring

justice of the dissent in Kreiner, which was rejected by this Court, is now the authoring

justice of the majority opinion, in which Kreiner is overruled. While to some, there may

be a sense of justice, or at least a sense of irony, in this sequence of events, to others,

including those of us in dissent in this case, such sequence embodies all that is wrong

when a judiciary confuses its own preferences with those of the people’s representatives

in the Legislature. While it is intriguing that Justice CAVANAGH now is able to transform

his dissent in Kreiner into a majority opinion, and thereby resuscitate his earlier opinion

15

“While an injury need not be permanent, it must be of sufficient duration to

affect the course of a plaintiff’s life.” Id. at 135.

16

“Self-imposed restrictions, as opposed to physician-imposed restrictions, based

on real or perceived pain do not establish this point.” Id. at 133 n 17.

15

in DiFranco, this has been achieved only after the people of this state, through their

Legislature, have made clear that DiFranco did not reflect what ought to be the policy of

this state. Therefore, just as he did in his dissent in Kreiner, Justice CAVANAGH, now

with majority support, rejects Kreiner’s analysis of the language “that affects the person’s

general ability to lead his or her normal life.” The worm has turned, and never mind

what the people and their Legislature have sought to accomplish in establishing as the

law.

Before proceeding too far into where our substantive disagreements lie, I would be

remiss not to point out where we are in agreement. First, the majority, just as did the

Kreiner dissent, largely agrees with Kreiner’s analysis of MCL 500.3135(2)(a), i.e., if

there is no material factual dispute, whether a person has suffered a serious impairment of

body function should be determined by the court as a matter of law.17 The majority also

17

However, the majority indicates that this statute “could unconstitutionally

conflict with MCR 2.116(C)(10) . . . .” Because I see no conflict between the statute and

the court rule, i.e., each allows the court to determine as a matter of law whether a person

has suffered a serious impairment of body function only if there are no material factual

disputes, I do not believe the statute is in any way unconstitutional. Moreover, the case

cited by the majority in support of its suggestion that jury trials “promote judicial

efficiency” actually stands for the exact opposite proposition. See Moll v Abbott

Laboratories, 444 Mich 1, 26; 506 NW2d 816 (1993) (“Both our court rules and case law

recognize the desirability of allowing summary disposition, regardless of a jury request,

when uncontroverted facts are presented to the court. This promotes efficiency and

preservation of judicial resources.”). It is interesting that, although the majority

acknowledges that the constitutionality of MCL 500.3135(2)(a) is not at issue here, it

repeatedly implies that MCL 500.3135(2)(a) “could” be unconstitutional, thus, making it

obvious that MCL 500.3135(2)(a) will also likely fall within the majority’s effort to

expunge the jurisprudence of the past decade.

16

largely agrees with Kreiner’s analysis of the language, “an objectively manifested

impairment of an important body function.”18 In addition, the majority agrees with

Kreiner’s conclusion that the serious impairment of body function threshold entails a

subjective analysis, i.e., “[w]hether an impairment that precludes a person from throwing

a ninety-five miles-an-hour fastball is a ‘serious impairment of body function’ may

depend on whether the person is a professional baseball player or an accountant who likes

to play catch with his son every once in a while.” Kreiner, 471 Mich at 134 n 19. The

I also disagree with the majority that “the disputed fact does not need to be

outcome determinative in order to be material . . . .” MCL 500.3135(2)(a)(ii) states,

“whether an injured person has suffered serious impairment of body function . . . [is a]

question [] of law for the court if the court finds . . . [that the] factual dispute . . . is not

material to the determination as to whether the person has suffered a serious impairment

of body function . . . .” That is, “[a]bsent an outcome-determinative genuine factual

dispute, the issue of threshold injury is now a question of law for the court.” Kern v

Blethen-Coluni, 240 Mich App 333, 341; 612 NW2d 838 (2000) (emphasis added).

Although the majority cites Black’s Law Dictionary (8th ed) in support of its proposition

that “the disputed fact does not need to be outcome determinative in order to be

material,” Black’s Law Dictionary (6th ed) states the very opposite-- “[m]aterial fact is

one upon which outcome of litigation depends.” See also Black’s Law Dictionary (8th

ed), which defines “material” as “[h]aving some logical connection with the

consequential facts,” and Random House Webster’s College Dictionary, which defines

“material” as “likely to influence the determination of a case.”

18

The majority does take issue with Kreiner’s conclusion that “[s]ubjective

complaints that are not medically documented are insufficient” to establish that an

impairment is “objectively manifested.” Kreiner, 471 Mich at 132. However, given that

the majority agrees that “plaintiffs must ‘introduce evidence establishing that there is a

physical basis for their subjective complaints of pain and suffering,’” quoting DiFranco,

427 Mich at 74, and I am uncertain what evidence other than medical documentation

would establish such a “physical basis,” it is not clear why the majority objects to

Kreiner’s statement that medical documentation is required. See also DiFranco, 427

Mich at 75 (“The ‘serious impairment of body function’ threshold requires the plaintiff to

prove that his noneconomic losses arose out of a medically identifiable injury which

seriously impaired a body function.”) (emphasis added).

17

majority also agrees with Kreiner’s conclusion that determining whether a plaintiff’s

general ability to lead his or her normal life has been affected “necessarily requires a

comparison of the plaintiff’s life before and after the incident.”19 Finally, the majority

agrees with Kreiner’s conclusion that permanency is not required.20

1. DIFRANCO VS. CASSIDY

However, this is where our agreements end. First, the majority takes issue with

Kreiner’s statement that “the Legislature largely rejected DiFranco in favor of Cassidy.”

Kreiner, 471 Mich at 121 n 8. As explained earlier, the Legislature adopted Cassidy with

a single exception. That single exception pertains to the fact that Cassidy, 415 Mich at

505, required an evaluation of “the effect of an injury on the person’s general ability to

live a normal life,” while MCL 500.3135(7) requires an evaluation of the effect of an

injury on “the person’s general ability to lead his or her normal life.” (Emphasis added.)

That is, while the Cassidy test was entirely objective, the MCL 500.3135(7) test is at least

partially subjective. As this Court explained in Kreiner, 471 Mich at 121 n 7:

[T]he Legislature modified the entirely objective Cassidy standard to

a partially objective and partially subjective inquiry. Thus, what is

“normal” is to be determined subjectively on the basis of the plaintiff’s own

life and not the life of some objective third party. However, once that is

19

The majority also indicates that “many other considerations could typically be

relevant to determining how an impairment affects a person’s ability to live in his or her

pre-incident normal manner of living.” The majority does not offer any further

explanation as to what these “many other considerations” might conceivably be.

20

Although Kreiner, 471 Mich at 135, specifically held that “an injury need not be

permanent,” the majority nonetheless criticizes it for “effectively creat[ing] a permanency

requirement.”

18

fixed as the base, it is to be objectively determined whether the impairment

in fact affects the plaintiff’s “general ability to lead” that life.

Nevertheless, given that: (a) Cassidy, 415 Mich at 505, held that courts should “look[] to

the effect of an injury on the person’s general ability to live a normal life”; (b) DiFranco,

427 Mich at 39, held that courts should not look to the effect of the injury on the person’s

“‘general ability to live a normal life’”; and (c) the Legislature subsequently and

affirmatively directed the courts to look to the effect of an injury on “the person’s general

ability to lead his or her normal life,” MCL 500.3135(7), the Legislature obviously

preferred the policy of Cassidy to that of DiFranco. In addition, in contrast to DiFranco,

and consistent with Cassidy, the Legislature expressly adopted an “important body

function” requirement, MCL 500.3135(7), and amended MCL 500.3135 to make clear

that whether a serious impairment of body function has occurred is a question of law

unless there is a material factual dispute. MCL 500.3135(2)(a). Thus, contrary to the

majority’s understandably defensive posture, it is hardly an “oversimplification” to

conclude that the Legislature essentially rejected DiFranco in favor of Cassidy.21

Moreover, the Legislature’s action of amending MCL 500.3135 following

DiFranco is an example of legislative history that has genuine utility in the interpretative

process. This Court has emphasized that “not all legislative history is of equal value,”

and has specifically noted that “[c]learly of the highest quality is legislative history that

relates to an action of the Legislature from which a court may draw reasonable inferences

21

Contrary to the majority’s contention, this dissent very clearly provides in the

above language “specific, substantive arguments” in support of this conclusion.

19

about the Legislature’s intent . . . .” In re Certified Question, 468 Mich 109, 115 n 5; 659

NW2d 597 (2003). The instant case presents an ideal “[e]xample[] of legitimate

legislative history,” i.e., the recitation of “actions of the Legislature intended to repudiate

the judicial construction of a statute . . . .” Id. And yet, not altogether inexplicably, the

majority entirely disregards these legislative actions.

Defendant and amicus curiae the Attorney General have presented the Court with

legislative analyses, committee reports, and other materials to support their argument

that, in enacting the amendments, the Legislature intended to repudiate DiFranco and

restore Cassidy, just as Kreiner held. Even the most cursory review of these documents

demonstrates that defendant and its amicus’ reading has merit. For example, the original

draft of House Bill 4341 was accompanied by a memorandum from its sponsor that stated

that the bill’s first goal was to “[r]eestablish the two-part Cassidy standard of: (1)

definition of ‘serious impairment of body function,’ and (2) make the determination of

whether an injury is a serious impairment of body function a question of law (judge)

rather than of fact (jury).” Memorandum of Representative Harold Voorhees enclosing

the original draft of HB 4341, February 8, 1995. Similarly, the House Legislative

Analysis expressly set forth the chronology of Cassidy and DiFranco, noting that

DiFranco had “rejected” Cassidy and that the bill “would return to a tort threshold

resembling that provided by the Cassidy ruling . . . .” House Legislative Analysis, HB

4341, December 18, 1995. The analysis provided to the Senate Financial Services

Committee likewise explained in the first sentence of the bill’s description that it “would

put into law the Cassidy standards for meeting the serious impairment of body function

20

threshold.” Department of Commerce Bill Analysis of HB 4341, February 14, 1995.

And finally, it is apparent from the statements of protest of the bill’s opponents that they

also clearly understood House Bill 4341 to be a “return to the Cassidy standard.”

Statements of Senator Henry Stallings and Senator John Cherry, October 12, 1995.

While on several occasions I have explained why I do not find all forms of

legislative history to be useful tools in the interpretative process, see, e.g., Petersen v

Magna Corp, 484 Mich 300, 381-382; 773 NW2d 564 (2009) (MARKMAN, J.,

dissenting), the author of the majority opinion has never questioned their utility.22 Thus,

22

The authoring justice states, “I have repeatedly stated that legislative history

should only be used when statutory language is ambiguous.” Although, in some cases, he

has asserted this, see, for example, People v Gardner, 482 Mich 41; 753 NW2d 78 (2008)

(CAVANAGH, J., dissenting); Bukowski v Detroit, 478 Mich 268; 732 NW2d 75 (2007)

(CAVANAGH, J., concurring); People v Derror, 475 Mich 316; 715 NW2d 822 (2006)

(CAVANAGH, J., dissenting); Lansing Mayor v Pub Serv Comm, 470 Mich 154; 680

NW2d 840 (2004) (CAVANAGH, J., dissenting), in other cases, he has suggested that

legislative history can be considered even though the statute is not ambiguous, see, for

example, Jackson v Green Estate, 484 Mich 209, 230; 771 NW2d 675 (2009)

(CAVANAGH, J., dissenting) (“Not only is this interpretation consistent with the plain

language of the statute, it is also consistent with the legislative history of the statute.”)

(emphasis added); Koester v City of Novi, 458 Mich 1; 580 NW2d 835 (1998); Elias Bros

Restaurants v Treasury Dep’t, 452 Mich 144; 549 NW2d 837 (1996) (CAVANAGH, J.,

concurring); People v Barrera, 451 Mich 261; 547 NW2d 280 (1996); People v Sloan,

450 Mich 160; 538 NW2d 380 (1995); Orzel v Scott Drug Co, 449 Mich 550; 537 NW2d

208 (1995); Gardner v Van Buren Pub Schools, 445 Mich 23; 517 NW2d 1 (1994);

Grand Trunk Western R Co v Fenton, 439 Mich 240; 482 NW2d 706 (1992); Romein v

General Motors Corp, 436 Mich 515; 462 NW2d 555 (1990). Further, given the

definition of “ambiguous” supported by the authoring justice, see Petersen, 484 Mich at

329 (KELLY, C.J., lead opinion) (quoting Yellow Freight Sys, Inc v Michigan, 464 Mich

21, 38; 627 NW2d 236 [2001], for the proposition that “‘[w]hen a statute is capable of

being understood by reasonably well-informed persons in two or more different senses,

[a] statute is ambiguous’”), and the different understandings given to the statute here by

the majority and dissenting justices, I fail to see how, by his own standards, he can

21

there is no apparent reason why the majority “turn[s] a blind eye to the wealth of extrinsic

information available” on the history of the 1995 amendments. Nat’l Pride at Work, Inc

v Governor, 481 Mich 56, 95 n 34; 748 NW2d 524 (2008) (KELLY, J., dissenting).

Rather, the only, quite obvious explanation for the majority’s selective silence is that it

can find nothing in this “wealth of extrinsic information available” to support its

interpretation. One of the most common and compelling critiques of the use of

legislative history is that a judge can almost always find something in the legislative

history to support the interpretation he personally wishes to give to a law. To borrow an

analogy invoked by United States Supreme Court Justice Antonin Scalia, using

legislative history is like entering a room, looking over the assembled multitudes in the

crowd, and picking out your friends. See Scalia, A Matter of Interpretation (Princeton,

NJ: Princeton University Press, 1997), at 36. In its near silence, the majority places a

new twist on this analogy, and illustrates another fundamental problem with the use of

legislative history. Here, the majority enters a room, and, finding no friends in sight,

makes a quick exit. Considering the quality and quantity of the legislative history

available here, the majority’s “quick exit” and its selective silence on the subject speaks

volumes. It should not go unremarked that it is this dissent that cites legislative history--

albeit a uniquely persuasive and bona fide form of legislative history-- as a relevant factor

in interpreting MCL 500.3135, while the justices of the majority, the supposed advocates

conclude that the statute is unambiguous, unless, of course, he does not believe that the

dissenting justices are “reasonably well-informed persons.”

22

of this mode of interpretation, exclude this from their consideration. Apparently,

legislative history is to be considered when it supports a justice’s preferred interpretation,

and ignored when it does not.

Indeed, the problem with this approach of sometimes relying on legislative history

and sometimes not is, as I explained in my dissent in Petersen, 484 Mich at 381-382, that

it is a process in which judges in the very guise of selecting the tools and

factors to be employed in “interpreting” the law are effectively its

formulators-- in short, judges who are wielding the legislative, not the

judicial, power.

A critical strength of a judicial philosophy committed to exercising

only the constitution’s “judicial power” is that reasonably clear rules of

decision-making are established before the fact. That is, a judge essentially

promises the parties that he or she will decide their case, as with all others,

by attempting to discern the reasonable meaning of relevant statutes or

contracts and that this will be done by relying upon recognized rules, and

tools, of interpretation. By contrast, under the [majority’s] approach . . . ,

in which there is essentially a limitless array of rules, and tools, that may be

employed for “defining” the law apart from its language, there is no

consistently applied interpretative process with which the judge promises

beforehand to comply. He or she may promise to be “fair,” and he or she

may seek to be fair, but there are no rules for how this fairness is to be

achieved. There is only the promise that the judge will address each

dispute on a case-by-case basis, using whatever rules, and whichever tools,

he or she believes are required in that instance. And the suspicion simply

cannot be avoided that these varying and indeterminate rules, and tools,

may be largely a function of the outcome preferred by the judge and by his

or her personal attitudes toward the parties and their causes. Any

interpretative rules will be identified only after the fact, and these “rules”

may or may not have been invoked in resolving yesterday’s dispute, and

may or may not be employed in resolving tomorrow’s dispute. Any judge

can concoct an after-the-fact rationale for a decision; the judicial process,

however, is predicated upon before-the-fact rationales. An ad hoc process

is not a judicial process at all. In the place of predetermined rules--

otherwise understood as the rule of law-- the [majority] would substitute

rules to be determined later. [Emphasis in the original.]

23

2. “TRAJECTORY” AND “ENTIRE”

Next, the majority peremptorily rejects Kreiner’s use of the words “trajectory” and

“entire.” Again, the pertinent statutory language being defined here is, “that affects the

person’s general ability to lead his or her normal life.” MCL 500.3135(7). “Lead” is

defined as “to conduct or bring . . . in a particular course,” and, as the majority

acknowledges, “‘trajectory’ is a synonym for ‘course.’” Random House Webster’s

College Dictionary (1991). In addition, contrary to the majority’s contention, Kreiner’s

use of the word “entire” was not “created out of thin air.” Instead, the use of the word

“entire” derived from the Legislature’s use of the word “general” because “in general”

means “with respect to the entirety.” Random House Webster’s College Dictionary

(1991) (emphasis added). More accurately, it is the meaning that the majority gives to

“general” that is “created out of thin air.” The majority concludes that the word

“general” means “some,” even though the definition that the majority itself relies upon

does not even include “some,” but instead indicates that “general” means “whole,”

“every,” “majority,” “prevalent,” “usually,” “in most instances,” “not limited,” and “main

features.” Nowhere among these possible meanings can a reader sight the word

“some.”23

23

I find it interesting that the authoring justice of the majority opinion once

chastised me for “leav[ing] no dictionary unturned,” with regards to an opinion in which I

cited two different dictionaries, People v Raby, 456 Mich 487, 501; 572 NW2d 644

(1998) (CAVANAGH, J., dissenting), and, here, he cites seven different dictionaries and

still cannot quite find a definition that serves his purpose. While considering relevant

dictionary definitions can be a valuable tool of interpretation, the majority’s generous use

of dictionaries here is noteworthy because the majority has questioned the propriety and

24

3. TEMPORAL CONSIDERATIONS

Finally, the majority rejects the non-exhaustive list of factors that Kreiner set forth

for consideration in evaluating whether the plaintiff’s general ability to lead his normal

life has been affected. The majority asserts that Kreiner “departed . . . from the statutory

text, by providing an extra-textual ‘nonexhaustive list of objective factors’ to be used to

compare the plaintiff’s pre- and post-incident lifestyle.” This critique is quite surprising

given that it is not uncommon for courts in general, and for this Court in particular, to

provide “extra-textual” factors to be considered in interpreting a statute that demands a

fact-specific analysis.24 To the best of my knowledge, members of this majority have

never before complained about this practice, but consistency in the application and non-

application of interpretative factors is hardly a preoccupation of this majority.25

usefulness of this tool in the past. Jones v Olson, 480 Mich 1169, 1176 (2008) (“In the

legal context, using a dictionary to unwaveringly determine the legislative intent behind a

statute is nothing more than barely hidden judicial activism.”) (WEAVER, J., dissenting)

(Then-Justice KELLY and Justice CAVANAGH joined Justice WEAVER’s dissenting

statement).

24

I use the phrase “extra-textual” factors only because this is the phrase the

majority uses. However, in truth, I do not believe that the factors articulated in Kreiner

are at all “extra-textual,” because these have been derived directly from the text of the

statute itself.

25

Indeed, as I explained in my dissent in Petersen, 484 Mich at 380, the majority’s

“interpretative” process seems to consist of “picking and choosing at [its] discretion from

among some uncertain array of tools lying ‘beyond the plain language of the statute [or

contract].’” (Citation omitted.) The problem with this approach is that “[t]he litigants

will, of course, have no notice beforehand of which tools are to be employed, for the

justices themselves will not know this beforehand.” Id. The rule gleaned from the

instant case is apparently that it is appropriate to employ “extra-textual” factors, but only

25

Indeed, in DiFranco itself, Justice CAVANAGH provided numerous “extra-textual”

factors to be considered in determining whether a plaintiff has established a serious

impairment of body function. DiFranco, 427 Mich at 69-70, states:

In determining whether the impairment of body function was

serious, the jury should consider such factors as the extent of the

impairment, the particular body function impaired, the length of time the

impairment lasted, the treatment required to correct the impairment, and

any other relevant factors.

Indeed, these “extra-textual” factors are remarkably similar to the Kreiner factors: “(a)

the nature and extent of the impairment, (b) the type and length of treatment required, (c)

the duration of the impairment, (d) the extent of any residual impairment, and (e) the

prognosis for eventual recovery.” Kreiner, 471 Mich at 133. It not clear why the

authoring justice thought it acceptable to list “extra-textual” factors in DiFranco, but

unacceptable to cite virtually the same factors in Kreiner. In addition, in Wexford Med

Group v City of Cadillac, 474 Mich 192; 713 NW2d 734 (2006), he listed “extra-textual”

factors a court should consider in determining whether an entity is a “charitable

institution” and thus exempt from ad valorem property taxes. Also, in Chmielewski v

Xermac, Inc, 457 Mich 593, 633; 580 NW2d 817 (1998), the Court considered the

Handicapper’s Civil Rights Act requirement that to be handicapped one must be

“substantially limited in a major life activity.” MCL 37.1103(e)(i)(A). Then-Justice

KELLY, joined by Justice CAVANAGH, stated in dissent:

where the majority wishes to do so. The parties will be made aware of the majority’s

inclinations, but only after a decision has been issued.

26

I would hold that the following factors should be considered to

determine whether an individual is substantially limited in a major life

activity: (1) the nature of the impairment, (2) its severity, (3) its duration or

expected duration, and (4) its long-term effect. [Chmielewski, 457 Mich at

63.]

See, also, Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982),

listing several “extra-textual” factors a court should consider in awarding “reasonable”

attorney fees under MCL 500.3148(1);26 Workman v Detroit Auto Inter-Ins Exch, 404

Mich 477, 496-497; 274 NW2d 373 (1979), adopting a four-factor test to determine

whether for purposes of the no-fault act a person is “domiciled in the same household” as

a relative pursuant to MCL 500.3114; Stewart v Michigan, 471 Mich 692, 698-699; 692

NW2d 376 (2004), stating “extra-textual” “factors such as the manner, location, and

fashion in which a vehicle is parked” are material to determining whether the parked

vehicle poses an unreasonable risk under MCL 500.3106(1); and Reed v Yackell, 473

Mich 520; 703 NW2d 1 (2005), utilizing an “extra-textual” multi-factor economic-reality

test to determine who is an employer for purposes of the Worker’s Disability

Compensation Act.

As should be readily apparent, the majority’s claim that Kreiner erred by including

“extra-textual” factors to consider in interpreting a statute is a wholly manufactured

concern. The statute requires a fact-specific analysis. As Justice CAVANAGH’s

DiFranco opinion and numerous other decisions of this Court have recognized, such

26

In his dissent in Smith v Khouri, 481 Mich 519, 544; 751 NW2d 472 (2008),

Justice CAVANAGH affirmed his satisfaction with the Wood “factors,” even though these

factors are obviously “extra-textual.”

27

factors assist courts in applying the statutory language on a case-by-case basis. To date,

none of the members of the majority have objected to the inclusion of such factors in any

other of this Court’s decisions.

Nevertheless, the majority rejects Kreiner’s “extra-textual” factors on the basis

that they all “include a temporal component,” reiterating the argument made by the

Kreiner dissent that “the statute does not create an express temporal requirement as to

how long an impairment must last.” Ante at __, see also Kreiner, 471 Mich at 147

(CAVANAGH, J., dissenting) (“[T]he serious impairment of body function threshold does

not suggest any sort of temporal limitation. . . . Therefore, the duration of the impairment

is not an appropriate inquiry.”). Indeed, the majority now holds that it is unnecessary to

consider whether the impairment even “continues to affect [plaintiff’s] general ability to

lead his pre-incident ‘normal life’ . . . .” (Emphasis added.)

The majority, not surprisingly, claims that this dissent mischaracterizes its holding

when we conclude that temporal considerations are wholly or largely irrelevant in the

majority’s holding. Not only, as explained above, is my characterization of their holding

supported by the actual language of the majority opinion, but it is also dictated by simple

logic. That is, given that the majority rejects Kreiner’s factors because they all “include a

temporal component,” given that it feels passionately enough about this to write a lengthy

opinion overruling Kreiner, and given that we can discern no other significant departure

28

from Kreiner in the majority’s new test than that of the temporal component,27 it is

difficult to escape the conclusion we reach here, that the majority believes that temporal

considerations are wholly or largely irrelevant.

I am reminded of a famous Sherlock Holmes line:

“How often have I said to you that when you have eliminated the

impossible, whatever remains, however improbable, must be the truth?”

[A. Conan Doyle, The Sign of the Four, from The Complete Sherlock

Holmes (New York: Doubleday, 1890), ch 6, p 111.]

That is, given that the majority essentially agrees with everything in Kreiner but its

temporal considerations,28 Kreiner’s temporal considerations are all that remain as to our

27

As explained above, there are other discrepancies between Kreiner and the

majority’s opinion, i.e., the DiFranco/Cassidy and the “trajectory/entire” discrepancies.

However, these two discrepancies are intertwined with our disagreement about whether

temporal considerations should be considered. By returning our law to DiFranco, at

which time the plaintiff’s “general ability to lead his or her normal life” was not at issue,

it is much easier for the majority to claim that temporal considerations are wholly or

largely irrelevant. In addition, because the majority believes that it is inappropriate to

consider either the “trajectory” or the “entire” person’s life, it believes that temporal

considerations, such as the duration of the impairment, are wholly or largely irrelevant.

However, because we conclude that the statute clearly precludes a return to DiFranco,

since the Legislature has very clearly indicated that the plaintiff’s “general ability to lead

his or her normal life” is at issue, we believe that temporal considerations are relevant.

Similarly, because we believe that the “trajectory” or the “entire” person’s life should be

considered, we believe that temporal considerations, such as the duration of the

impairment, are, in fact, highly relevant.

28

The majority essentially agrees with: (1) Kreiner’s analysis of MCL

500.3135(2)(a), i.e., if there is no material factual dispute, whether a person has suffered

a serious impairment of body function should be determined by the court as a matter of

law; (2) Kreiner’s analysis of the language, “an objectively manifested impairment of an

important body function”; (3) Kreiner’s conclusion that the serious impairment of body

function threshold entails a subjective analysis; (4) Kreiner’s conclusion that determining

whether a plaintiff’s general ability to lead his or her normal life has been affected

29

disagreement. Therefore, that the majority disagrees with Kreiner’s temporal

considerations, such as the duration of the impairment, “must be the truth.” In other

words, when comparing the Kreiner test and the majority’s new test-- whatever that is

intended to be-- the only apparent substantive difference is that, while Kreiner expressly

includes temporal considerations, the majority’s test does not. Given that the majority

essentially agrees with everything in Kreiner but its temporal considerations, and given

that the only reason it gives for rejecting these considerations is that they all “include a

temporal component,” how can we deduce anything other than that the majority holds

that temporal considerations, such as the duration of the impairment, are irrelevant?

Furthermore, if temporal considerations are not irrelevant, why does the majority

not explain in what way these are relevant, or how, in fact, the majority views the

relevancy of temporal considerations, and how these views differ from those expressed in

Kreiner? This glaring void in explanation of its own test in the majority opinion can only

be explained by the fact that the majority is holding that temporal considerations are

wholly or largely irrelevant.

In sum, if temporal considerations are relevant: (1) why is the majority overruling

Kreiner; (2) why does the majority reject Kreiner’s factors, such as the duration of the

impairment; (3) why does the majority not include temporal considerations within its new

test; (4) why does the majority fail to explain the relevancy of temporal considerations;

“necessarily requires a comparison of the plaintiff’s life before and after the incident”;

and (5) Kreiner’s conclusion that permanency is not required.

30

(5) why does the majority conclude that it is unnecessary to consider whether the

impairment “continues to affect [plaintiff’s] general ability to lead his pre-incident

‘normal life’”; and (6) perhaps most tellingly, why does not the majority clarify its

position, whatever it may be, in light of this dissent? Simply saying that our conclusion

is “erroneous” does not make it so, and, even more to the point, will hardly assist the

bench and bar of this state in determining whether, and how, temporal considerations

somehow remain relevant after today’s decision.

For these reasons, we are unable to avoid the conclusion that the majority is,

indeed, holding that temporal considerations are wholly or largely irrelevant, even though

this “improbable” result constitutes a departure from Cassidy, DiFranco, and Kreiner,

and makes utterly no sense. How can it possibly be determined whether an impairment

“affects the person’s general ability to lead his or her normal life” without taking into

account temporal considerations? As Kreiner, 471 Mich at 133 n 18, inquired:

Does the dissent [now the majority] really believe that an

impairment lasting only a few moments has the same effect on a person’s

“general ability to lead his or her normal life” as an impairment lasting

several years or that an impairment requiring annual treatment has the same

effect on a person’s “general ability to lead his or her normal life” as an

impairment requiring daily treatment?

Does the majority really believe that the Legislature intended for the serious impairment

threshold to be met in every instance where an objectively manifested impairment of an

important body function affected a person’s ability to lead his normal life for a mere

moment in time? What if a person gets hit in the head and passes out for five minutes,

but after those five minutes is completely unaffected by the impairment? If all temporal

31

considerations are irrelevant, would not this person satisfy the majority’s threshold,

because his general ability to lead his normal life was certainly affected for those five

minutes of unconsciousness? Under the majority’s rule, it is apparently irrelevant that the

person arose after those five minutes and led a completely normal life thereafter. The

majority asserts that all that matters is that for that moment in time, the person’s general

ability to lead his normal life had been affected. I am not sure that the majority’s new

threshold can even be called a “threshold” when it can be satisfied in virtually every

automobile accident case that results in injury.29 As long as the plaintiff has suffered an

objectively manifested impairment of an important body function, that plaintiff will have

satisfied the majority’s threshold, because the majority has essentially read the third

criterion, i.e., “that affects the person’s general ability to lead his or her normal life,” out

of the statute.

The clearest illustration of the difficulty in determining whether an impairment

“affects the person’s general ability to lead his or her normal life” without taking into

account temporal considerations is the majority’s own inability to do so.30 In determining

29

It certainly is a “threshold” bearing no resemblance to the other two thresholds--

“permanent serious disfigurement” and “death.” See MCL 500.3135(1).

30

The majority criticizes Kreiner as “def[ying] practical workability” on the basis

that “Kreiner has led to inconsistent interpretation of the statutory language, with

similarly situated plaintiffs being treated differently by different courts.” However, in his

opinion in DiFranco, 427 Mich at 56-57, Justice CAVANAGH has already provided an

explanation for why this might be the case:

Conflicting results have also arisen among cases involving similarly

injured plaintiffs. This is undoubtedly because no two plaintiffs are injured

32

whether the plaintiff in the instant case suffered an impairment that affects his general

ability to lead his normal life, the majority itself repeatedly cites temporal considerations.

For example, the majority indicates that “for a month after the incident, plaintiff could

not bear weight on his left ankle”; “[h]e underwent two surgeries over a period of 10

months and multiple months of physical therapy”; “after the incident he was unable to

perform functions necessary for his job for at least 14 months”; “he did not return to work

for 19 months”; and “he missed fishing for a year after the incident.” (Emphasis added.)

Are such temporal considerations irrelevant or relevant? Do we interpret the words or the

actions of the majority? And, if temporal considerations are irrelevant, how are we to

determine whether an impairment affects a plaintiff’s “general ability to lead his normal

life”? The majority does not appear to know the answers, and it appears not to care that it

does not know.

Indeed, under the majority’s new threshold, it would seem that the moment the

plaintiff in this case went to the emergency room and it was determined that he had

broken his ankle, the threshold was met. For at that moment, plaintiff could not work.

While at the emergency room, and for some measurable time afterwards, plaintiff’s

or recover in precisely the same manner. These conflicting results indicate

that threshold issues are often questions upon which reasonable minds can

differ.

Moreover, if the Court of Appeals is inconsistently or incorrectly applying Kreiner, this

Court has a mechanism to rectify such errors-- reversing such decisions, not overruling

precedent and substituting an incomprehensible new standard bearing no relationship to

the law being interpreted.

33

broken ankle affected not just some, but all, of his capacity to live his normal life. Under

the majority’s non-temporal test, there is apparently no need to consider anything beyond

the emergency room visit. If this reading of its decision is wrong, once again, the

majority might wish to explain why this is so for the benefit of the bench, the bar, and the

public.

In crafting its new threshold, the majority would also have been wise to consider

the larger no-fault statute. Recall that the Legislature

This text is long and has been trimmed here. Open the source document for the complete record.