Facts – This Decision involves the consolidated cases of Kreiner v Fischer, 256 Mich App 680 (2003) and Straub v Collette, 258 Mich App, 456 (2003). Both involved the issue of whether the Plaintiff’s claimed impairment affected his general ability to lead his normal life.

In reversing the Michigan Court of Appeals, the Supreme Court held that the determination of whether an impairment affects the Plaintiff’s general ability to lead his normal life, requires considering whether the Plaintiff is "generally able" to lead his normal life. If he is generally able to do so, then his general ability to lead his normal life has not been affected by the impairment. Accordingly, to determine 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. This contemplates more than a minor interruption in lifestyle. In other words, the objectively manifested impairment of an important body function must affect the course of a person’s entire normal life. Although some aspects of a Plaintiff’s entire normal life may be interrupted by the impairment, if, despite those impairments, 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 and he does not meet the serious impairment of body function threshold.

To analyze whether an impairment affects a person’s "general" ability to lead his normal life, one must identify how the person’s life has been affected, by how much, and for how long. Specific activities should be examined with an understanding that not all activities have the same significance in a person’s overall life. Also, minor changes in how a person performs a specific activity may not change the fact that the person may still "generally" be able to perform that activity.

The Court set forth a multi-step process which was designed to provide a basic framework for separating out those Plaintiffs who meet the statutory threshold from those who do not. Those principles are as follows:

1.     A Court must determine that there is no factual dispute  concerning the nature and extent of the person’s injuries, or if there is a factual dispute, that it is not material to the determination whether the person has suffered a serious impairment of body function.

2.     If the Court can decide as a matter of law, it must next determine if an important body function of the Plaintiff has been impaired. If so, it must then determine whether the impairment is objectively manifested. Subjective complaints that are not medically documented are insufficient.

3.     If the Court finds that an important body function has been impaired, and that the impairment is objectively manifested, it then must determine if the impairment affects the Plaintiff’s general ability to lead his or her normal life. The Court should engage in a multi-faceted 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. Once this is identified, the Court must engage in an objective analysis regarding whether any difference between Plaintiff’s pre- and post-accident lifestyle has actually affected the Plaintiff’s general ability to conduct the course of his life. Merely "any effect" on the Plaintiff’s life is insufficient because a de minimus effect would not, as objectively viewed, affect the Plaintiff’s general ability to lead his life.

The Court also set forth a non-exhaustive list of objective factors which may be of assistance in evaluating whether Plaintiff’s general ability to conduct the course of his normal life has been affected:

    (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.

    (e)     The prognosis for eventual recovery.

This list of factors was not meant to be exclusive nor are any of the individual factors meant to be dispositive by themselves.

The Court found that neither Kreiner nor Straub met the serious impairment of body function threshold given the fact that the effect of the injuries on body function was not pervasive. Kreiner v Fischer and Straub v Collette, 471 Mich 109 (2004).

Recommendation – This Decision is significant from the standpoint that a Trial Court must consider Plaintiff’s impairment by comparing the individual’s life before and after the accident, and gauge the significance of any affected aspects on the course of Plaintiff’s overall life. Many defense Motions for Summary Disposition may have been denied or held in abeyance pending this Decision. A Supplemental Brief (Motion for Re-Hearing, Reconsideration, etc.) should be filed on an immediate basis. It should also be noted that this was a 4-3 Decision, with Justices Cavanagh, Weaver and Kelly dissenting.

Facts – Plaintiff’s Decedent died in an automobile accident while a passenger in a vehicle which had been leased from the Defendant. The Estate initiated a lawsuit against Defendant on the basis of MCL 257.401(3) which establishes vicarious liability for automobile lessors when permissive users are negligent and cause automobile accidents injuring others. The Act also caps the damages for such lessors at $20,000 for each injured person to a maximum of $40,000 for each accident.

The Jury returned a verdict of $900,000 against Defendant. The Trial Court concluded that the damage caps were unconstitutional. The Court of Appeals reversed. In upholding the Court of Appeal’s Decision, the Supreme Court stated that damage caps are constitutional in causes of action springing out of the common law because the legislature has the power under the Michigan Constitution to abolish or modify non-vested, common law rights and remedies. The case is even more convincing when as here, an owner’s liability for the negligent driving of a permissive user, is of statutory creation. If the legislature can create a cause of action, it must be able to eliminate or modify it. Phillips v Mirac, Inc., 470 Mich 415 (2004).

Recommendation – This particular Decision appears to be very well reasoned and logical. Damage caps will be upheld especially where the cause of action at issue is of statutory creation.

Facts – Plaintiffs were injured in an automobile accident. Defendant was their insurer. They filed a first-party no-fault suit against Continental, and a third-party no-fault suit against the other driver. Plaintiffs then learned that the driver was uninsured. They notified the Defendant of their uninsured motorist claim. Defendant denied coverage. The instant lawsuit was then filed, claiming uninsured motorist benefits.

Plaintiff’s insurance policy provided that a claim or suit must be brought within one year from the date of the accident. Defendant moved for Summary Disposition relying on that provision. The Circuit Court denied the Motion finding that the limitation was unreasonable. The uninsured motorist claim was filed one year and ten months after the accident. This was substantially less than the Plaintiffs would have had by statute to file a third-party negligence lawsuit against the at-fault driver. Consequently, the Court found that the shortened period of limitations acted as a practical abrogation of the right of action.

In upholding the Trial Court’s denial of Summary Disposition, the Court of Appeals held that where a contract provision shortens the otherwise applicable statute of limitations, the shortened period must be reasonable. It concluded that a shortened period of limitations may not allow a Plaintiff sufficient time to ascertain whether an impairment will affect his or her ability to lead a normal life. Further, the insured may not know that the other driver is uninsured until after a personal injury lawsuit is filed. Woods v Continental Insurance Company, Michigan Court of Appeals Published Decision dated July 6, 2004, Docket No. 242847.

Recommendation – This Decision will no doubt be appealed to the Michigan Supreme Court. There appears to be some split of authority regarding whether a contractually shortened statute of limitations is acceptable. We shall continue to advise as developments occur.

Facts – Plaintiff fell and injured her ankle while walking across an ice and snow-covered parking lot. The property owner had entered into an oral contract with a snowplowing contractor to provide snow and salt services for the lot. At the time Plaintiff fell, the contractor had not plowed the lot in approximately 14 hours. No salt had been applied.

Plaintiff sued both the property owner and contractor for negligence. A Jury Trial resulted in a finding of no breach of oral contract between the contractor and property owner, but awarded Plaintiff compensatory damages after finding that the contractor had been negligent by failing to perform under the contract and that said negligence was the proximate cause of Plaintiff’s injuries.

In reversing the Michigan Court of Appeals affirmation of Jury verdict, the Supreme Court held that the threshold question must be whether the Defendant owed a duty to the Plaintiff that is separate and distinct from the Defendant’s contractual obligations. If no independent duty exists, no tort action based on a contract will lie. In truth, Plaintiff claimed that the contractor breached its contract with the property owner by failing to perform its contractual duty of plowing or salting the parking lot. Plaintiff alleged no duty owed to her independent of the contract and thus failed to satisfy the threshold requirement of establishing a duty owed under the "separate and distinct" approach set forth in this Opinion. Defendant’s failure to carry out its snow removal duties owed to the property owner created no new hazard to the Plaintiff.

To summarize, if Defendant fails or refuses to perform a promise, the action is in contract. If Defendant negligently performs a contractual duty or breaches a duty arising by implication from the relation of the parties created by the contact, the action may be either in contract or in tort. In such cases however, no tort liability arises for failing to fulfill a promise in the absence of a duty to act that is separate and distinct from the promise made. Fultz v Union-Commerce Associates, et al, 470 Mich 460 (2004).

Recommendation – This is a fairly significant Decision inasmuch as the Supreme Court appears to have discarded the former "misfeasance/non-feasance" inquiry in a negligence case because it improperly focused on whether a duty was breached instead of whether a duty existed at all.

Facts – Plaintiff injured her back while riding as a passenger on Defendant’s ATV which was being driven by Defendant’s brother on Defendant’s property. The property in question was an eleven-acre lot which was zoned residential. Although portions of the lot were wooded, Plaintiff was injured while riding on the mowed portion of Defendant’s back yard. The Trial Court granted Defendant’s Motion for Summary Disposition on the basis that the RUA barred Plaintiff’s cause of action against Defendant.

The Michigan Court of Appeals reversed based upon the Supreme Court’s prior decision in Wymer v Holmes, 429 Mich 66 (1987) which had held that the RUA only applied to large tracts of undeveloped land.

In reversing the Court of Appeals, the Supreme Court analyzed the plain language of the Recreational Use Statute which prohibits a cause of action for injuries to a person who is on the land of another for recreational purposes unless injuries were caused by the gross negligence or willful and wanton misconduct of the owner. The statute contains no limitations on the type of land involved, but rather applies to specified activities which occur on the land of another [MCL 324.73301(1)]. The Act limits its applicability to activities which include fishing, hunting, trapping, camping, hiking, sight-seeing, motorcycling, snowmobiling, or any other outdoor recreational use. Neal v Wilkes, 470 Mich 661 (2004).

Recommendation – The Michigan Supreme Court has now extended the protection of the Recreational Use Act to the owners of large and small tracts of land, developed and undeveloped land, vacant and occupied land, land which is both suitable and unsuitable for outdoor recreational uses, urban or suburban land, rural land, subdivided and unsubdivided land. Given the foregoing, any claim investigation should include a determination as to the existence of gross negligence, willful and wanton misconduct, as well as a determination as to whether the activity falls within the type of recreational use specified by statute.