By Grand Rapids auto crash lawyer, Tom Sinas
On 1994’s Vitalogy, Pearl Jam’s frontman Eddie Vedder sings a refrain at the end of the album’s seminal track, Corduroy: “Everything has changed, absolutely nothing’s changed.” Little did the singer know that those words would summarize changes to third-party automobile threshold law courtesy of the 2019 no-fault overhaul known as Public Acts 21 and 22.
Changes to Serious Impairment of Body Function Requirement Under the New No-Fault Law
So how did everything change? For the first time since 1995, the statutory definition of “serious impairment of body function” was revised. Under the former version of MCL 500.3135(5), that phrase was defined as: “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” But Public Act 21 replaced it with the following:
As used in this section, ‘serious impairment of body function’ means an impairment that satisfies all of the following requirements:
(a) It is objectively manifested, meaning it is observable or perceivable from actual symptoms or conditions by someone other than the injured person.
(b) It is an impairment of an important body function, which is a body function of great value, significance, or consequence to the injured person.
(c) It affects the injured person’s general ability to lead his or her normal life, meaning it has had an influence on some of the person’s capacity to live in his or her normal manner of living. Although temporal considerations may be relevant, there is no temporal requirement for how long an impairment must last. This examination is inherently fact and circumstance specific to each injured person, must be conducted on a case-by-case basis and requires comparison of the injured person’s life before and after the incident.
So how did everything not change? Notably, Public Act 21 contained the following enacting provision: “MCL 500.3135, as amended by this amended act, is intended to codify and give full effect to the opinion of the Michigan supreme court in McCormick v. Carrier, 487 Mich 180 (2010).” Many will recall that in McCormick, the high court reversed the onerous rule of Kreiner v. Fisher, 417 Mich 109 (2004). Thus, practitioners and judges have been operating under the McCormick principles for nearly a decade. And the language that the legislature engrafted onto Section 3135(5) mirrors the words from McCormick.
Uncertainty Regarding Implementation
Yet certain questions remain regarding the implementation of the new definition. For example, should the jury instruction be revised? As of this writing, M Civ JI 36.11 reads: “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.” Some will argue that this instruction is still adequate, while others will argue that it should be updated.
English judge Lord Denning once said that “words are the lawyer’s tools of trade.” And one prediction can be made with reasonable confidence: with more words in the statutory definition, more tools will be deployed.