Pickens v. Prince

Per Curiam. Plaintiff was personally injured when a car owned by defendant struck the rear of her car. She filed a complaint alleging serious impairment of bodily function due to defendant’s negligence. Defendant failed to file a timely answer, whereupon. plaintiff brought a motion for default judgment, GCR 1963, 520. The motion was denied following a hearing. Subsequently, defendant answered the complaint and filed a motion for entry of an order dismissing the case under an unspecified court rule. Defendant alleged that plaintiff had failed to present evidentiary support for her claim. An affidavit by defendant’s attorney, in which he attested to the veracity of the statements in the motion, was attached to the motion. Plaintiff answered that there was a genuine issue of material fact as to whether plaintiff sustained a serious impairment of bodily function. In an affidavit attached to plaintiff’s answer, her chiropractor opined that she sustained serious impairment of a bodily function as a result of the accident. A medical report purportedly was attached to the affidavit, but none has been found in the file. Plaintiff now appeals the trial court’s order granting summary judgment in defendant’s favor. MCL 500.3135; MSA 24.13135 preserves tort actions for noneconomic losses to a person injured in an automobile accident where the injured party can establish death, serious impairment of a bodily function or permanent serious disfigurement. This Court has repeatedly held that whether the complainant has suffered serious impairment of a [317] bodily function is a fact question. However, where the injuries are so insubstantial that the plaintiff has failed to reach the threshold of serious impairment, the trial court may remove the cause from the jury and dismiss the case. In order for the court to take the question from the jury, it must first determine that no reasonable juror could view plaintiffs impairment as serious. McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976), Hermann v Haney, 98 Mich App 445; 296 NW2d 278 (1980), Gallagher v Parshall, 97 Mich App 654; 296 NW2d 132 (1980), Vitale v Danylak 74 Mich App 615; 254 NW2d 593 (1977). Factors to be considered in determining whether this claim has been established include the extent of the injuries, treatment required, duration of the disability, extent of residual impairment and prognosis for eventual recovery. However, not all of the above criteria are necessary to establish serious impairment of bodily function, nor is the list all-inclusive. Hermann v Haney, supra, 449. Since the trial court considered plaintiffs testimony given at the default judgment hearing and supporting affidavits, it is assumed summary judgment was granted under GCR 1963, 117.2(3), Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). In passing on a motion based on subrule (3), benefit of every reasonable doubt must be given to the opposing party. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Initially, plaintiff contends that opposing counsel’s affidavit filed in support of the motion is not based upon the affiant’s personal knowledge, rendering the motion fatally defective. It is not necessary to address this procedural question because we disagree with the trial court’s finding that [318] there is no genuine issue of material fact as to plaintiffs injuries. At the default judgment hearing, plaintiff testified that she had incurred injuries to her neck, back and shoulders as a result of the accident. She also testified that she received treatments immediately after the accident, that she continued to be under a doctor’s care at the time of the hearing, and that she was instructed to stay off her feet. She further alleged that she cannot perform housework or lift anything and that she has headaches twice a week for which she takes pain medicine. We disagree with the trial court’s conclusion that plaintiffs injuries were "mostly minor”. Reasonable jurors could conclude that plaintiff’s impairment was serious. Viewing the record in the light most favorable to the plaintiff, there is at least a genuine question of fact as to the extent of her injuries. Similarly, see McKendrick, supra, Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978), Pohl v Gilbert, 89 Mich App 176; 280 NW2d 831 (1979). Reversed and remanded. Costs to abide the outcome.