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Reed v. Jones

United States District Court, W.D. Michigan, Northern Division

November 22, 2016

KATRINA REED, Plaintiff,
v.
BRIAN JONES and RODNEY JONES, Defendants.

          OPINION REGARDING PLAINTIFF'S AND DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         The parties raise the issue of whether Plaintiff, Katrina Reed, a citizen and resident of Canada, is entitled to recover damages for personal injuries arising from an automobile accident in Michigan's Upper Peninsula with a vehicle driven by Defendant, Brian Jones, and owned by his father, Rodney Jones. Michigan has a “no-fault” automobile insurance statute which can provide many benefits to insureds, but which can also prevent recovery through ordinary litigation in court. M.C.L. § 500.3135. The question presented by the parties' cross-motions for summary judgment is whether Ms. Reed has presented sufficient evidence so that she can present her case to a jury.

         NON-ECONOMIC LOSS

         The first issue is whether Ms. Reed can recover damages for non-economic loss. A tortfeasor remains liable under Michigan's No-Fault Act for non-economic loss caused by negligent use of a motor vehicle if the injured person suffered “death, serious impairment of body function, or permanent serious disfigurement.” M.C.L. § 500.3135(1). A plaintiff seeking to establish that she suffered a serious impairment of body function must demonstrate “(1) an objectively manifested impairment… (2) of an important body function… that (3) affects the person's general ability to lead his or her normal life.” McCormick v. Carrier, 487 Mich. 180, 215, 795 N.W.2d 517, 537 (2010). “[T]he court should determine whether there is a factual dispute regarding the nature and extent of the person's injuries, and, if so, whether the dispute is material to determining whether the serious impairment of body function is met.” Id. (citing M.C.L. § 500.3135(2)(a)(I) and (ii)). This test is treated as a question of law for the court only “[i]f there is no factual dispute[] or no material factual dispute.” Id.

         To be “objectively manifested, ” the impairment must be “evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.” McCormick, 487 Mich. at 196, 795 N.W.2d 517 at 527. There must also be a causal link between the injury and the accident. See Mehdi v. Gardner, No. 319630, 2015 WL 1227710, at *2 (Mich. Ct. App. Mar. 17, 2015). This prong cannot be satisfied by a plaintiff's testimony regarding pain and suffering alone; there must be a physical basis to support the subjective complaints of pain and suffering, which generally requires medical testimony. McCormick, 487 Mich. at 198, 795 N.W.2d 517.

         Plaintiff claimed in her June 27, 2016 deposition to have the following symptoms:

• Plaintiff is unable to perform various physical activities that she was able to before the accident, including kickboxing, biking, weight lifting, step and spin classes, yoga and Pilates.
• Plaintiff lost strength and flexibility.
• Plaintiff struggles with housework.
• Plaintiff has discomfort after sitting or standing for extended periods of time and walks with a limp.

(ECF No. 44-1 at PageID.344-62.) However, these are subjective symptoms. The sole evidence Ms. Reed presented as evidence of objective symptoms to show an objectively manifested impairment is the affidavit of Dr. Michael Nenonen, a Canadian chiropractor, who said Ms. Reed:

• Has a limited and painful range of motion in her neck, left hip, and left elbow.
• Has various symptoms of pain and discomfort that prevent Plaintiff from carrying on strenuous physical activity.

(ECF No. 43-2 at PageID.286-87.) There is some question about when Plaintiff actually began seeing Dr. Nenonen for treatment of injuries sustained in the accident. Dr. Nenonen's affidavit, dated September 14, 2016, indicates that he had been treating Plaintiff “for over three years.” (ECF No. 43-2 at PageID.286.) Plaintiff indicated in her June 27, 2016 deposition that she began seeing Dr. Nenonen about eight months after the accident, and had been getting treatment for the past two years. (ECF No. 45-1 at PageID.342-44.) Documents obtained by ...


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