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Davey v. Starr6/17/2003
UNPUBLISHED
Defendants appeal as of right from the judgment entered by the trial court. This case arises from an automobile accident involving the principal plaintiff Cheryl Davey (hereinafter "plaintiff"). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendants argue that the trial court erred by denying their motion for a directed verdict on the ground that there was no evidence that plaintiff suffered a serious impairment of body function as she was required to present in order to prevail in this action. We disagree. The trial court's decision on a motion for a directed verdict is reviewed de novo. Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002). In reviewing a trial court decision on a motion for a directed verdict, we examine the evidence and all reasonable inferences from it in a light most favorable to the nonmoving party. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). A motion for a directed verdict should be granted only if the evidence so viewed fails to establish a claim as a matter of law. Clark v Kmart Corp, 465 Mich 416, 418-419; 634 NW2d 347 (2001).
The no-fault act generally abolishes tort liability arising from the use of a motor vehicle. MCL 500.3135(3). However, MCL 500.3135(1) provides that tort liability remains, in pertinent part, for non-economic loss from the use of a motor vehicle that results in "serious impairment of body function." That phrase is statutorily defined 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). For an impairment to be objectively manifested, there must be a medically identifiable injury or condition which has a physical basis. Jackson v Nelson, 252 Mich App 643, 653; 654 NW2d 604 (2002). In determining whether an injury constitutes impairment of an important body function, a court should consider the extent of the injury, the treatment required, the duration of the disability, the extent of residual impairment and the prognosis for eventual recovery. Kern v Blethen-Coluni, 240 Mich App 333, 341; 612 NW2d 838 (2000). In assessing the extent of the injury, a court may compare the plaintiff's lifestyle before and after the injury. May v Sommerfield (After Remand), 240 Mich App 504, 506; 617 NW2d 920 (2000). An injury need not be permanent to be an impairment of an important body function. Kern, supra, 240 Mich App 341.
We conclude that plaintiff presented evidence of a serious impairment of an important body function. An important body function "is a function of the body that affects the person's general ability to live a normal life". Kern, supra, 240 Mich App 340, citing Cassidy v McGovern, 415 Mich 483, 505; 330 NW2d 22 (1982). This Court in Kern, supra, indicated that, while Cassidy, supra, had been overruled by DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986), the Legislature in adopting the current statutory provisions regarding serious impairment of body function had "overturned the Supreme Court's DiFranco decision by codifying the tort threshold injury standards of Cassidy." Kern, supra, 240 Mich App 338. Accordingly, the discussion of what constitutes an "important body function" in Cassidy, supra, is controlling. In this regard, the Cassidy Court stated:
Recovery for pain and suffering is not predicated on serious pain and suffering, but on injuries that affect the functioning of the body. Leo Cassidy's injuries were not general aches and pains, but rather two broken bones. Thus, his injuries fall within t
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