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Law v. Novak10/13/2005
UNPUBLISHED
Before: Talbot, P.J., and White and Wilder, JJ.
In this action to recover non-economic damages under the no-fault act, MCL 500.3101 et seq., plaintiff appeals as of right from the circuit court's orders granting summary disposition to defendants and denying plaintiff's motion for reconsideration. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
In October 2002, plaintiff was injured when defendant Brian Keith Novak, who was driving a truck leased by his employer, defendant Stonetech Marble & Granite, Inc., struck plaintiff's vehicle from behind while plaintiff was stopped at an intersection. Plaintiff was taken by ambulance to a hospital, where he complained of neck and back pain.
Plaintiff, who had suffered a workplace back injury in 1977, had been unemployed since that year, and he remained unemployed following the accident. Plaintiff was involved in a prior car accident in May 2001 that resulted in lower back pain, left leg pain, and headaches; he was treated for pain at a pain clinic approximately once a month following the prior accident and continued to receive similar treatment following the October 2002 accident. A November 2002 MRI indicated the existence of degenerative disc disease and focal tears of the disc annulus; however, the MRI report indicated that those symptoms were present in a previous MRI performed one year prior to the accident.
Plaintiff testified in his depositions that, following the May 2001 accident, he was unable to work on cars, do any house painting, fish, go for rides, go to movies, do housework, go grocery shopping, cut his grass, or go to races. Plaintiff further testified that, for a period of some months following the October 2002 accident, he suffered from increased pain.
On defendants' motion for summary disposition pursuant to MCR 2.116(C)(10), the circuit court concluded that, based on evidence of edema or swelling at the point of plaintiff's pre-existing back injury, plaintiff had arguably demonstrated the existence of an objectively manifested impairment of an important body function. The court nevertheless granted defendants' motion on the ground that plaintiff had failed to demonstrate the existence of a genuine issue of material fact that the impairment affected his general ability to lead his normal life.
This Court reviews de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. Lind v Battle Creek, 470 Mich 230, 238; 681 NW2d 334 (2004). The trial court may grant summary disposition under MCR 2.116(C)(10) if, considering the substantively admissible evidence in a light most favorable to the nonmoving party, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Lind, supra at 238; Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
We review the trial court's denial of a motion for reconsideration for an abuse of discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). The party moving for reconsideration "must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error." MCR 2.119(F)(3).
MCL 500.3135(1) provides that a person "remains subject to tort liability for non-economic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impair
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