By Lee Dryden
BridgeTower Media Newswires
DETROIT — A plaintiff was successful recently when a Michigan Court of Appeals panel considered whether an auto accident impacted his ability to lead a normal life.
In Asraeel v. Farm Bureau Insurance, the panel reversed the Macomb County Circuit Court, which granted summary disposition to the two defendant drivers involved in the crash.
The panel of Judges Kathleen Jansen, Thomas C. Cameron, and Jonathan Tukel ruled in its unpublished per curiam opinion that there is a question of fact whether the plaintiff suffered a serious impairment of a body function.
“From the evidence submitted, it is clear that plaintiff’s injuries were not permanent and did not destroy his ability to lead his normal life,” the opinion stated. “However, viewed in the light most favorable to him, plaintiff clearly presented evidence that his general ability to live, work, and engage in activities that he previously enjoyed in his normal life have been affected by his injury.”
The case
This case stems from an accident that occurred on July 4, 2016. Plaintiff Sarmad Asraeel was a passenger in a car driven by defendant Farqad Polus, who was driving eastbound on 18 Mile Road when his vehicle was struck by defendant Jill Gerlach’s vehicle at 18 Mile and Van Dyke Avenue, according to the COA opinion.
Police reports indicated that Polus had run a red light, but he testified at his deposition that he proceeded on a green light. The plaintiff broke his clavicle in the accident and surgery followed.
The plaintiff filed a complaint against Farm Bureau, Polus and Gerlach. He alleged that he was entitled to personal protection insurance (PIP) benefits from Farm Bureau because he was a passenger in Polus’s car, which Farm Bureau insured at the time of the accident.
He also claimed that he sustained bodily injuries as a result of Polus’s and Gerlach’s negligent operation of their respective vehicles.Gerlach filed a motion for summary disposition, arguing that she could not be liable for any damages because she was not responsible for the accident.
The trial court vacated the grant of summary disposition to Farm Bureau because the claim against the insurer previously had been dismissed without prejudice, but granted summary disposition for Gerlach and Polus because the court determined that there was no factual question that the plaintiff had not suffered threshold injury under the no-fault act.
“Regarding the effect the injury had on plaintiff’s ability to work, the trial court acknowledged that plaintiff had to take more frequent breaks after he was injured but nonetheless observed that plaintiff still worked the same amount of hours after the accident as he worked before he was injured,” the opinion stated. “Regarding plaintiff’s personal life and ability to engage in recreational activities, the trial court stated that plaintiff’s testimony did not show that he was unable to ‘enjoy hobbies in the same manner that he did before the accident.’”
The trial court therefore concluded that there was “no clear, unequivocal evidence from which a reasonable factfinder could conclude that [plaintiff’s] injury affected his ability to lead his normal life.”
COA analysis
The panel stated that the trial court overlooked “the fact that plaintiff had to alter his work habits as a result of pain and discomfort caused by the injury.” It also disagreed with the lower court’s analysis about the plaintiff’s ability to enjoy hobbies after the accident.
“Plaintiff explicitly testified that he no longer is able to lift weights for exercise, which was an activity that he enjoyed, and that he is limited to walking or running on occasion for exercise.
Plaintiff stated that he previously enjoyed playing soccer and volleyball with friends but that he is no longer able to play either sport,” according to the opinion.
“The trial court’s opinion suggests that it believed that in order for plaintiff to demonstrate that he sustained a serious impairment of a body function, plaintiff was required to demonstrate an injury which would be long-lasting, if not permanent, and that the injury also would have to be exceedingly damaging to plaintiff’s ability to lead his daily life.”
But the panel pointed out that the Michigan Supreme Court, in McCormick v. Carrier (2010), stated that MCL 500.3135 “merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.”
“Only some of a person’s ability to live in their ‘normal manner of living’ must be affected to meet the threshold requirements of MCL 500.3135.”
The injury doesn’t need to lead to a permanent impairment as MCL 500.3135 “does not create an express temporal requirement as to how long an impairment must last in order to have an effect on ‘the person’s general ability to live his or her normal life.’”
Attorney comments
Plaintiff’s counsel Kevin Yaldoo of Hakim, Toma, & Yaldoo PC in Warren was pleased with the COA’s reversal of the trial court.
“Regarding influence on future cases, I think the decision could be used to bolster one’s argument that there is no temporal requirement or quantitative minimum required to satisfy the serious impairment of a body function threshold,” he said. “In this case, the defendants argued that since the plaintiff was disabled from work for only a six-week period, and because his testimony was limited as to the effect the impairment had on his general ability to lead his normal life, Mr. Asraeel did not meet the threshold required under MCL 500.3135.”
“Fortunately, the Court of Appeals relied on McCormick v. Carrier and other case law and reversed the lower court’s order granting summary disposition.”
Yaldoo cited the importance of the decision in light of the unpublished opinion in Zichichi v. Mull, where the appeals court affirmed summary disposition for the defendants in the case with similar details to Asraeel.
“I think that this decision gives attorneys assisting the injured ammunition when confronted with the Zichichi decision by defense attorneys,” he said.
Defense counsel Trent B. Collier did not respond to requests for comment.
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