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Boulware v Gutsue (COA – UNP 12/18/2018; RB #3828)


Michigan Court of Appeals; Docket # 339355; Unpublished
Judges Cavanagh, Servitto, and Cameron per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 

Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**] 


In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed summary disposition for Defendants James and Heidi Gutsue (collectively “the Gutsues”) on the issue of serious impairment of body function. The Court upheld the trial court’s grant of summary disposition because it found that all of the doctors who testified claimed that there was no link between the accident and Plaintiff Bernadean Boulware’s (“Boulware”) subjective complaints, and therefore, Boulware could not establish that she suffered an objective impairment.

Boulware was rear-ended by the Gutsues when she was parked at a stoplight on Woodward Avenue. Boulware’s chest hit the steering wheel and her right knee hit the front of the car. Boulware refused an ambulance ride and drove home when her husband got to the scene of the accident. When Boulware got home her husband drove her to the hospital. At the hospital Boulware was diagnosed with a mild to moderate subacromial/subdeltoid bursitis. Boulware’s primary care physician acknowledged that there was not much of a change in Boulware’s physical examination after the accident. Moreover, four other doctors who observed Boulware determined that there was no objective basis for Boulware’s subjective complaints.

The Court of Appeals upheld the lower court’s grant of summary disposition because it found that Boulware failed to meet the tort threshold. In so holding, the Court reviewed the requirements to bring a third-party action under the No-Fault Act. To meet the tort threshold under MCL 500.3135 an individual must sustain a serious impairment of body function. To prove serious impairment an individual must show: (1) an objectively manifested impairment, (2) of an important body function, (3) that affects the person’s general ability to lead his or her normal life. Here, the Court found that Boulware could not meet the objective manifestation impairment prong.

The Court explained that an impairment must be shown to be objectively manifested, not the injury or its symptoms. Here, Boulware had an injury but she did not have an objective impairment. All of the doctors who testified explained that Boulware’s complaints about pain were not connected to the accident. This included Boulware’s own doctor. Moreover, Boulware had pre-existing conditions that explained much of her subjective pain. The Court also found that the trial court properly denied evidence when it was submitted for the first time on a motion for reconsideration.

“In sum, plaintiff did not demonstrate that she suffered an objectively manifested impairment. Plaintiff’s subjective complaints of pain are insufficient to show impairment, Turkelson, 322 Mich App at 607, and plaintiff’s own primary care physician testified that there was no objective evidence to substantiate plaintiff’s complaints. Further, multiple doctors concluded that the MRIs and CT scans indicated degenerative changes—just like the initial findings directly after the accident. Moreover, those doctors who conducted physical examinations only noted plaintiff’s complaints of pain, not long-lasting impairments attributable to plaintiff’s injuries.”

Thus, the Court upheld the trial court’s grant of summary disposition in favor of the Gustus.

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