Churchman v. Richerson
Churchman v. Richerson
Concurring Opinion
(concurring in part and dissenting in part'). Pursuant to May v Sommerfield, 239 Mich App 197, 202; 607 NW2d 422 (1999), remand for further findings is appropriate, and I therefore concur with the result reached by the majority. I write separately, however, because I believe that Dr. Lemer’s affidavit was sufficient to satisfy the threshold requirement of the closed-head injury provision of § 3135.
Pursuant to MCL 500.3135(2)(a)(ii); MSA 24.13135(2)(a)(ii), a question of fact for the jury is created if a physician who regularly diagnoses or treats closed-head injuries testifies that there may be a “serious neurological injury.” The term “neurological” refers to the nervous system. See Random House Webster’s College Dictionary (1997), p 880 (defining “neurology”). In vertebrates, including humans, the “nervous system” includes the brain, spinal cord, nerves, and ganglia. Id. at 878.
Dr. Lemer testified that plaintiff sustained a “traumatic brain injury.” I believe that this language satisfies the requirements of MCL 500.3135(2)(a)(ii); MSA 24.13135(2)(a)(ii). The word “traumatic” is commonly understood to be synonymous with the word “serious.” Consequently, I believe that plaintiff has sustained her burden of demonstrating a serious impairment of bodily function or permanent serious disfigurement.
Opinion of the Court
Plaintiff DeAnn Marie Churchman, a minor, by her next friend and father, William Churchman, appeals as of right from the trial court’s order denying reconsideration of its order granting summary disposition to defendant Erik Arthur Rickerson. We affirm in part and remand for further proceedings.
DeAnn Churchman and her brother, David Lee Churchman, also a minor, were injured in a pedestrian-automobile accident. Eleven-year-old DeAnn suffered a closed-head injury. David and DeAnn, with their father as next friend filed a complaint against Rickerson (defendant), the driver of the automobile involved in the accident, and John Frank Broughton, the owner of that vehicle.
However, 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.
With regard to DeAnn’s claims, defendant argued below that, while there was evidence that she suffered a closed-head injury, plaintiffs’ own expert
The trial court first granted summary disposition to defendant with regard to David’s claims.
On appeal, DeAnn (hereafter “plaintiff”) argues that the trial court improperly dismissed her claims because it incorrectly interpreted and applied § 3135(2)(a)(ii). We review a trial court’s grant or denial of summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Statutory construction is a matter of law that we review de novo as well. Oakland Co Bd of Co Rd
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995); Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion in determining intent is the specific language of the statute. Turner, supra at 27. As far as possible, effect should be given to every phrase, clause, and word. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). Where a statute does not define a term, its ordinary meaning applies. Popma v Auto Club Ins Ass’n, 446 Mich 460, 469-470; 521 NW2d 831 (1994). Reference to a dictionary is appropriate to determine the ordinary meaning of a word. Id. If the plain and ordinary language of the statute is clear, judicial construction is normally neither necessary nor permitted. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). When interpreting a statute, this Court ihust look at the object of the statute and the harm it was intended to remedy, and adopt a reasonable construction that best accomplishes the purpose of the legislation. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994).
The no-fault act generally is to be construed liberally because it is remedial in nature. Putkamer v Transamerica Ins Corp of America, 454 Mich 626,
Plaintiff first argues that under the plain language of the statute, a plaintiff who is diagnosed with a closed-head injury automatically meets the § 3135 threshold. We disagree. If that were the case, the Legislature would not have required testimony that a plaintiff had sustained a serious neurological injury, but simply would have required testimony that a plaintiff had sustained a closed-head injury. Indeed, a closed-head injury “may cause damage that ranges from mild to profound.” 3 Olendorf et al., eds, The Gale Encyclopedia of Medicine (Farmington Hills, Mich: Gale Research, 1999), p 1349. Thus, to give effect to the phrase “serious neurological injury,” we must conclude that the closed-head injury provision of § 3135 requires more than a diagnosis that a plaintiff has sustained a closed-head injury.
Plaintiff argues further that even if a diagnosis of a closed-head injury is not sufficient to satisfy the threshold requirements, Dr. Lemer’s testimony that DeAnn had sustained “a traumatic brain injury” satis
Traumatic brain injury may be classified as mild, moderate, or severe. See D. Kushner, M.D., “Mild Traumatic Brain Injury: Toward Understanding Manifestations and Treatment,” 158 Archives of Internal Medicine 1617 (Aug, 1998). Indeed, even a diagnosis of mild traumatic brain injury may include “a spectrum of manifestations that can range from transient mild symptoms to ongoing disabling problems.” Id. Thus, when presented only with a diagnosis of “traumatic brain injury,” a trial court is not in a position to know whether that injury was serious. Furthermore, even if considered as a descriptive phrase, “traumatic brain injury” does not necessarily imply that a neurological injury may be serious. Dorland’s Medical Dictionary defines “traumatic” as “pertaining to, occurring as the result of, or causing trauma.” Dorland’s Medical Dictionary (28th ed). The same dictionary defines “trauma” as “a wound or injury, whether phys
While it is clear from the affidavit presented to the trial court that DeAnn suffered a neurological injury, § 3135 requires that the affidavit must contain testimony that a plaintiff may have sustained a serious neurological injury. Again, when interpreting statutes we must, as far as possible, give effect to every phrase, clause, and word. Sun Valley Foods, supra at 237. Because there is nothing in Dr. Lemer’s affidavit, either literally or substantively, to indicate the degree of injury, we find that it was not sufficient to satisfy the threshold requirement of § 3135. We note further that this conclusion is supported by the legislative history of § 3135, which indicates that the amended version of that statute was intended to raise or strengthen the no-fault threshold. See House Legislative Analysis, HB 4341, December 18, 1995.
Plaintiff argues next that even if the affidavit did not satisfy the closed-head injury provision of § 3135, summary disposition was precluded because she presented evidence, including an affidavit from a neuropsychologist and medical records from the hospital where she was treated after the accident, sufficient to raise a question of fact with regard to whether she sustained a serious impairment of body function. Although plaintiff made this argument in the trial court in response to defendant’s motion for summary disposition, the trial court did not make any
The language of § 3135 does not indicate, however, that the closed-head injury exception provides the exclusive manner in which a plaintiff who has suffered a closed-head injury may establish a factual dispute precluding summary disposition. In the absence of an affidavit that satisfies the closed-head injury exception, a plaintiff may establish a factual question under the broader language set forth in subsections 3135(2)(a)(i) and (ii), which, as noted above, provide that whether an injured person has suffered serious impairment of body function is a question for the court unless the court finds that “[t]here is no factual dispute concerning the nature and extent of the person’s injuries,” or, if the court finds that there is such a factual dispute, that “dispute is not material to the determination as to whether the person has suffered a serious impairment of body function . . . .” This Court has recently held that a trial court cannot determine whether a plaintiff has suffered a serious impairment of body function and enter judgment in favor of a defendant as a matter of law without first making the factual findings required under subsections 3135(2)(a)(i) or (ii). May v Sommerfield, 239 Mich App 197, 202; 607 NW2d 422 (1999). Because the trial court in this case did not make the required findings, we cannot decide the merits of this issue on appeal and must remand for further proceedings. See id.
Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.
In the motion for reconsideration, plaintiff argued that the trial court misunderstood Dr. Lemer’s original affidavit and was thus misled. Plaintiff included with the motion a second affidavit from Dr. Lemer, stating that posttraumatic stress disorder with closed-head injury and traumatic brain injury are, by then-very nature, serious neurological injuries, and that DeAnn had sustained a serious neurological injury. However, we can find no abuse of discretion in the denial of a motion for reconsideration that rests on testimony that could have been presented the first time the issue was argued. Charbeneau v Wayne Co General Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987).
Plaintiffs subsequently filed an amended complaint that did not include any claims against Broughton.
The Legislature amended § 3135, 1995 PA 222, effective March 28, 1996. Because the injuries in question in this case occurred in January 1997, the amended version applies.
No issues regarding the court’s dismissal of David’s claims were raised on appeal.
Similarly, Stedman’s Medical Dictionary defines “traumatic” as “[Relating to or caused by trauma,” and defines “trauma” as “[a]n injury, physical or mental.” Stedman’s Medical Dictionary (26th ed), p 1842.
Reference
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- Churchman v. Rickerson
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