Framing. A well-built house has it. A good baseball catcher masters it. The J. Geils Band freezes it. And a properly fashioned motion as to the lack of a no-fault threshold injury possesses it.
Let’s pause there for a second. First, to shake “Freeze-Frame” by The J. Geils Band out of your head; there is no doubt that the keyboard riff crept into your brain. Second, to state that summary disposition is tough to achieve when it comes to threshold injuries. Specifically, defendants have a notoriously difficult time establishing that a plaintiff’s injuries are not a serious impairment of a body function.
Keep in mind, however, that a plaintiff cannot subjectively support his or her threshold injury. It must be done through medical testimony establishing that is a physical basis for their subjective complaints of pain and suffering.
This is where we must take note of a couple of recent decisions by the Michigan Court of Appeals regarding threshold motions – to gauge what is successful and unsuccessful. Both decisions were issued on the same day – one that giveth and one that taketh away.
In Yarber, et al, v Home-Owners Ins Co, et al, the insurer did not deny that a motor vehicle accident resulted in the plaintiff suffering from back and shoulder pain. Rather, it argued that the injuries were not threshold injuries. Taking it a step further, the insurer pointed to the fact that the plaintiff’s physicians did not specifically attribute his injuries to the motor vehicle accident in their medical records.
The appellate court agreed and affirmed the trial court’s ruling. Interestingly, the plaintiff presented testimony that he felt immediate pain in his back and shoulder after the accident, and he provided an MRI showing an injury at the L4 and L5 levels. But the appellate court didn’t find this to be enough; there needed to be evidence tying the injuries to the motor vehicle accident. And because the only references to the motor vehicle accident were the subjective reports from the plaintiff, the appellate court did not find the injury to be “objectively manifested.”
Contrast the Yarber case with the Smith case. In Smith v Auto Club Ins Assoc, et al, the defendant driver argued that the plaintiff could not show that the motor vehicle accident caused the plaintiff to suffer an objectively manifested impairment. Like the insurer in Yarber, the defendant driver argued that the medical records did not establish a causal connection between the injuries and the motor vehicle accident, which was exemplified by the plaintiff’s pre-accident, chronic low back pain.
While the trial court agreed with the defendant driver, the appellate court reversed the decision, ruling that the medical records detailed the plaintiff’s acute neck and back strains diminished her ability to sit, stand and walk as compared to her pre-accident levels was enough to prevent summary disposition.
Two cases similarly argued, but two wildly different outcomes with the winning legal arguments. And it all comes back to framing. The prevailing party in both Yarber and Smith took what the medical records gave them and positioned their arguments accordingly.
These cases are a reminder to automobile negligence defendants and uninsured/underinsured motorist carriers that the finer details of medical records can often be the greatest source of your defense. Medical records can be taken at face value. And those same medical records – a “Freeze-Frame” in time – can support a finding that a plaintiff did not suffer a threshold injury.
A partner in the firm's Bloomfield Hills office, Jesse A. Zapczynski represents national insurers in motor vehicle first- and third-party, bodily injury, and uninsured and under insured motorist claims. He also has extensive ...
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