 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Moceri v. Kondziolka9/20/2005
UNPUBLISHED
Before: Hoekstra, P.J., and Gage and Wilder, JJ.
In this action for recovery of non-economic damages under the no-fault insurance act, MCL 500.3101 et seq., defendant appeals as of right the trial court's order denying his motion for summary disposition pursuant to MCR 2.116(C)(7) and permitting plaintiff to amend her complaint to plead facts in avoidance of governmental immunity. By leave granted, defendant also appeals that portion of the trial court's order denying defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse.
I. Basic Facts and Procedural History
In late January 2002, plaintiff was involved in a motor vehicle accident during which she suffered a lower back injury for which she was prescribed physician-supervised physical therapy. In April of that same year, while still under the care of her physical therapist, plaintiff was involved in a second motor vehicle accident wherein her sport utility vehicle was struck from behind by a sanitation truck owned by the city of Warren and being operated by city employee defendant Leo Kondziolka. Following the accident plaintiff was transported to a local hospital where she complained of pain in her right hip and leg. However, she was released later that same day after an x-ray of her hip and pelvic region disclosed no evidence of any "abnormality."
Approximately two weeks later, plaintiff resumed physical therapy following an increase in lower back pain and reevaluation of her condition by physician Jeffrey Middeldorf. According to plaintiff, Middeldorf diagnosed her as suffering from " umbar strain with likely right lumbosacral radiculopathy," which he concluded to have been "aggravated" by the April 2002 motor vehicle accident involving defendant. Despite continued complaints of recurrent pain in her lower back, plaintiff progressed well during the next few months of physical therapy. As a result of her continued complaints of recurrent pain, however, plaintiff was directed by Middeldorf to undergo magnetic resonance imaging (MRI) of her lower lumbar region, which revealed the lumbosacral spine to be intact and again disclosed no evidence of any abnormality in that region. Given the absence of any evidence of abnormality in the lumbosacral region, as well as her marked improvement in such areas as pain and range of motion, plaintiff was discharged from physical therapy in August 2002.
In August of the following year, plaintiff filed the instant suit alleging negligence by defendant resulting in "serious and permanent injuries" to plaintiff. Following the close of discovery, defendant moved for summary disposition of plaintiff's suit under MCR 2.116(C)(7) and (C)(10), arguing that plaintiff had failed to plead facts in avoidance of the immunity afforded defendant as a governmental employee, see MCL 691.1407(2), and that the evidence of record was insufficient to create a genuine issue of material fact regarding whether plaintiff had sustained the serious impairment of body function required by MCL 500.3135 for recovery of non-economic damages. Finding the evidence sufficient to create a material factual dispute regarding the nature and extent of plaintiff's injuries, and that plaintiff should be afforded the opportunity to amend her complaint to allege facts in avoidance of governmental immunity, the trial court declined to grant summary disposition in favor of defendant.
II. Analysis
On appeal, defendant argues that the trial court erred in denying his motion for summary disposition pursuant to MCR 2.116(C)(7) because any amendment of plaintiff's complaint to allege facts in avoidance of governmental immunity is fut
Page 1 2 3 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|