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STATE OF MICHIGAN
COURT OF APPEALS


RAYMOND BENEDICT, Plaintiff-Appellee, v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant, and EBONY MONIQUE HINES, Defendant.

UNPUBLISHED November 28, 2006

No. 265595 Washtenaw Circuit Court LC No. 04-001054-CK

Before: Murphy, P.J., and Meter and Davis, JJ. PER CURIAM. Defendant State Farm1 appeals by leave granted the trial court order denying defendant's motion for summary disposition in this case arising out of a motor vehicle accident in which plaintiff allegedly sustained serious impairment of important body functions relative to his neck, back, and head. Defendant contended, in part, that plaintiff had not suffered a serious impairment of body function under MCL 500.3135 because plaintiff was unable to establish that any impairment or injuries affected his general ability to lead his normal life. The trial court concluded that a material factual dispute existed regarding the nature and extent of the injuries, and thus summary dismissal was inappropriate. We affirm. This Court reviews de novo a trial court's decision on a motion for summary disposition as well as questions of statutory interpretation. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004).2 Under the no-fault act, a plaintiff or an estate may recover noneconomic

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We shall refer to State Farm as "defendant" for the remainder of this opinion. Summary disposition was pursued under MCR 2.116(C)(10). MCR 2.116(C)(10) provides for
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losses only where the injured person "has suffered death, serious impairment of body function, or permanent serious disfigurement." MCL 500.3135(1). MCL 500.3135(7) defines "serious impairment of body function" as "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." For a court to render, as a matter of law, a ruling regarding whether a party has suffered a serious impairment of body function, it must first "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." Kreiner, supra at 131-132; see also MCL 500.3135(2)(a). MCL 500.3135(2)(a)(ii) does provide, however, that "for a closed-head injury, a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury." If the court can make the determination as a matter of law, it must next determine whether an important body function was impaired and, if the court finds that an important body function was impaired, it must then determine whether the impairment was objectively manifested. Kreiner, supra at 132. Where the court answers these questions in the affirmative, it must then determine whether "the impairment affects the plaintiff's general ability to lead his or her normal life." Id. Here, plaintiff alleged that the motor vehicle accident caused an aggravation of existing neck and back injuries,3 along with causing a closed-head injury. The trial court denied defendant's motion for summary disposition, ruling that a material factual dispute existed regarding the nature and extent of the injuries, causation, and any aggravation of existing injuries. The trial court did not render any ruling or make any statements regarding whether plaintiff's injuries affected his general ability to lead his normal life. Defendant frames three appellate arguments. First, defendant contends that plaintiff's closed-head injury claim cannot succeed because there was no testimony under oath that he may have a serious neurological injury, and it fails because there is no issue of fact that the alleged head injury did not affect plaintiff's general ability to lead his normal life as defined in Kreiner. Next, defendant argues that the trial court erred in failing to address the issue whether plaintiff's alleged injuries affected his general ability to lead his normal life. And finally, defendant maintains that whatever neck
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summary disposition where there is no genuine issue regarding any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary disposition under MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). Plaintiff was injured in another automobile accident that occurred in 2001, and the accident at issue in the current litigation occurred in 2003. -2-

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and back injuries or impairments plaintiff may have sustained, they did not, as a matter of law, affect his general ability to lead his normal life. With respect to the alleged closed-head injury, plaintiff cannot take advantage of MCL 500.3135(2)(a)(ii) because plaintiff's experts did not expressly testify "under oath that there may be a serious neurological injury[,]" as mandated by the statute (emphasis added), nor can it be implied from the experts' statements that they opined that plaintiff's closed-head injury may be a serious neurological injury. See Churchman v Rickerson, 240 Mich App 223, 229-231; 611 NW2d 333 (2000).4 Therefore, the case cannot automatically proceed to trial under that provision. However, the inapplicability of MCL 500.3135(2)(a)(ii) in relation to the alleged closed-head injury does not preclude plaintiff from asserting that the closed-head injury constituted a serious impairment of body function under the general principles in MCL 500.3135. Churchman, supra at 232 ("The language of

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