"Serious impairment of bodily function"

    The appellate courts of Michigan continue to be distracted with arguments over the serious impairment standard.  The No Fault statute requires that a jury find a "serious impairment of bodily function" in order for a person injured by the negligence of another driver to receive non-economic compensation beyond PIP coverage.  [There are two other exceptions that have not resulted in much controversy:  persons suffering death or permanent serious disfigurement also may sue.]  Since 1974, the meaning of "serious impairment" has been tweaked by courts and the legislature, but never so dramatically as in 2004 when the Supreme Court adopted its Kreiner decision requiring that a "seriously impaired" person prove a "life-altering" injury.  As noted elsewhere on our website and weblog, this decision--with little support in the legislative history--has been a windfall for Michigan insurers and denied compensation to many innocent victims. 

          This week was no exception, as Stacy Buys, an innocent passenger in a vehicle struck by the at-fault, was denied compensation under the "drunk driver's relief act".  Ms. Buys suffered a badly fractured ankle that required surgery and the insertion of pins and a tubular plate.  Her attorney may have been a little too confident in responding to the insurer's motion for summary disposition, as she apparently filed her medical records with the court anticipating they would be adequate to create a question of fact about the seriousness of her injuries.  The Court held that as a matter of law she was not "seriously" hurt--according to the Supreme Court's standard. 

          During the same week, the Court of Appeals refused to overturn a verdict for another young woman victim of a car wreck.  Despite the fact that she suffered from back pain and radiculopathy in her left leg, despite the fact that she had surgery on her left knee and was still receiving treatment five years later, the insurance company appealed a verdict of $330,000.00 in her favor.   Only $30,000.00 of the verdict was non-economic (i.e. for things like "pain and suffering").  Despite the fact that her claim was supported by two medical specialists and a vocational rehabilitation specialist who testified that there were "no jobs" that she could do after the accident injuries, the insurer argued that her injuries were not a "serious impairment" as a matter of law.  One judge would have agreed with the insurer, citing the Kreiner decision, despite the wealth of testimony and the jury's decision to the contrary.