M Civ JI 36.01 No-Fault Auto Negligence: Serious Impairment of Body Function - Definition (To Be Used in Cases in Which 1995 PA 222 Applies)

One of the elements plaintiff must prove in order to recover noneconomic loss damages in this case is that [ he / she ] sustained a serious impairment of body function.

Serious impairment of body function means an objectively manifested impairment of an important body function that affects the plaintiff’s general ability to lead [ his / her ] normal life. An impairment does not have to be permanent in order to be a serious impairment of body function.

Note on Use

1995 PA 222 amended the no-fault statute to provide that the issue of serious impairment of body function is a question of law if the trial judge finds either that (1) there is no factual dispute concerning the nature and extent of the person’s injuries, or (2) there is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination of whether the person suffered serious impairment of body function. MCL 500.3135(2)(a). In cases which do not fall into either of these categories, serious impairment of body function is a jury question and this instruction should be given. The amended statute specifically provides that for a closed-head injury, a question of fact 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. MCL 500.3135(2).

The definition of serious impairment in 1995 PA 222 applies to cases filed on or after July 26, 1996. MCL 500.3135(2).

If the claim involves economic and noneconomic damages, M Civ JI 36.04 No-Fault Auto Negligence: Elements of ProofExplanation of Noneconomic-Economic Distinction should be given before this instruction.

If the trial court makes any preliminary rulings as a matter of law in the plaintiff’s favor, e.g., that a body function is “important,” this instruction must be modified accordingly.

If mental or emotional injury is an issue, M Civ JI 36.02 should be given in addition to this instruction.

Comment

Prior to the enactment of 1995 PA 222, the statutory threshold requirement of “serious impairment of body function” had not been defined by the Michigan Legislature. However, it had been the subject of frequent appellate court decisions. In two Supreme Court decisions, Cassidy v McGovern, 415 Mich 483 (1982), and DiFranco v Pickard, 427 Mich 32 (1986), the Michigan Supreme Court defined “serious impairment of body function” in substantially different ways. Presumably 1995 PA 222 was a legislative response to those conflicting opinions, which, among other things, adopted the first legislative definition of “serious impairment of body function.” MCL 500.3135(7) formerly stated: “As used in this section, ‘serious impairment of body function’ means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”

Following the enactment of 1995 PA 222, the Supreme Court decided Kreiner v Fischer, 471 Mich 109 (2004), and numerous Court of Appeals’ decisions were issued implementing that decision.

In McCormick v Carrier, 487 Mich 180 (2010), the Supreme Court overruled Kreiner. Both Kreiner and McCormick are summary disposition cases that address when and under what circumstances a trial judge can decide the issue of serious impairment of body function as a matter of law. Neither addressed the issue of jury instructions. Therefore, caution should be exercised in extracting language from McCormick and converting it to jury instructions.

In McCormick, the Supreme Court held that the statutory definition of serious impairment of body function sets forth three requirements: first, there must be an objectively manifested impairment; second, the impairment must be of an important body function; and third, the impairment must be one that affects the injured person’s general ability to lead his or her normal life.

The Committee determined it was necessary to delete the last paragraph of the instruction, which formerly stated, “In order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis.” This definitional language came from DiFranco, supra, which predated 1995 PA 222. It was also affirmed in Jackson v Nelson, 252 Mich App 643 (2002), which was decided after 1995 PA 222. However, there is language in McCormick suggesting that this definition, although arguably still relevant, does not present a complete definition of the objectively manifested element of the threshold. In this regard, McCormick stated, “The common meaning of ‘objectively manifested’ in MCL 500.3135(5) is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an ‘objectively manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” However, the Court goes on to cite Cassidy and DiFranco, supra and states, “Further, the preexisting judicial interpretation of ‘objectively manifested’ is consistent with the plain language of the later adopted statute.” The Committee determined that the most appropriate course was to delete any definitional language of the objectively manifested element from this instruction. In doing so, however, the Committee did not mean to imply that a court cannot give an appropriate special instruction on this issue or on the other two threshold elements dealing with important body function and general ability to lead plaintiff’s normal life.

It is error to instruct the jury that “serious impairment means impairment of more than ordinary severity.” Karas v White, 101 Mich App 208; 300 NW2d 320 (1980); Smith v Sutherland, 93 Mich App 24; 285 NW2d 784 (1979).

It is also error to instruct the jury regarding death and permanent serious disfigurement if the only issue is whether the plaintiff suffered a serious impairment. Karas; Argenta v Shahan, 135 Mich App 477; 354 NW2d 796 (1984), rev’d on other grounds, 424 Mich 83; 378 NW2d 470 (1985).

The Michigan Supreme Court has made it clear that the threshold of serious impairment is not a limitation that precludes recovery of damages for noneconomic loss where a plaintiff ceases to suffer from a serious impairment. Incarnati v Savage (and Byer v Smith), 419 Mich 541; 357 NW2d 644 (1984). See M Civ JI 36.01A.

History

M Civ JI 36.01 was deleted October 2022. M Civ JI 36.11 was originally added June 1997; it was amended in December 1999, February 2001, and June 2011; it was renumbered as M Civ JI 36.01 in October 2022.