explaining that the standard of review for unpreserved errors is plain error affecting substantial rights
How later courts described this case
- explaining that the standard of review for unpreserved errors is plain error affecting substantial rights
Written by the judges who cited it.
The opinion
Meter, RJ.
(concurring in part and dissenting in part). While I agree with the majority that a remand to the trial court in this case is necessary, I disagree with the majority regarding the actions the trial court must take on remand. The majority concludes that a remand is necessary so that the trial court can (1) conduct a trial on the issue of plaintiff’s damages related to the “serious impairment of body function,” and (2) make a finding regarding whether plaintiff sustained a “permanent serious disfigurement” and, if appropriate, conduct a trial on plaintiff’s damages related to this disfigurement.
However, MCL 500.3135(2)(a); MSA 24.13135(2)(a), as amended by 1995 PA 222 , states:
(a) The issues of whether an injured person has suffered serious impairment of body function or permanent serious *346 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 serious permanent serious disfigurement.
In May v Sommerfield, 239 Mich App 197, 201-202 ; 607 NW2d 422 (1999), this Court construed the above statute to mean that a determination regarding threshold issues cannot be made by either this Court or the lower court before the lower court has determined whether a factual dispute under the statute exists. Accordingly, I would remand the instant case to the trial court to determine whether a material factual dispute regarding the nature and extent of plaintiffs injuries exists. Only after concluding that no such factual dispute exists should the trial court address, as a matter of law, whether plaintiff suffered a “serious impairment of body function” or a “permanent serious disfigurement.”
In contrast to the majority, I do not believe that it is our place, as an appellate court, to make the determination that no factual dispute exists under MCL 500.3135(2)(a); MSA 24.13135(2)(a) before the trial court has addressed this question, even if it appears to us that no such dispute exists. Indeed, this principle (that it is the trial court’s duty to make the “factual findings” under MCL 500.3135[2][a]; MSA 24.13135[2][a]) was expressed in May , and we are obligated to follow May under MCR 7.215(H).
I would remand this case for the trial court to decide whether a material factual dispute under MCL *347 500.3135(2)(a); MSA 24.13135(2)(a) exists. Only if the trial court were to answer this question in the negative should it address, as a matter of law, whether plaintiff suffered a “serious impairment of body function” or a “permanent serious disfigurement.” If the trial court were then to find a “serious impairment of body function” or a “permanent serious disfigurement,” a new trial on damages would be warranted.