Allstate loses attempt to deny PIP and non-economic damages for exacerbation of prior injuries

James J. Brown sued Allstate and its insured after he was rear-ended in a car accident.  He acknowledged that he was partially disabled from injuries he had received on active duty in the U.S. Army, but claimed that he never suffered radiating sciatic pain until the subject motor vehicle collision.  His family doctor supported Brown's claim that he had either suffered a new injury or a serious exacerbation of his existing condition.

Allstate moved for summary disposition of Brown's PIP claim, arguing that he hadn't suffered any new injury.  In passing it also alleged that Brown "could not prove a serious impairment," however, neither Allstate nor its insured actually sought summary disposition of the veteran's non-economic claim against the insured.  The Court granted summary disposition to Allstate on the PIP claim and to the insured on the "third-party" claim.  Brown's attorneys appealed.

On appeal, the Court of Appeals held that there was a genuine factual dispute with regard to whether Brown had suffered an exacerbation of his pre-existing condition and that the lower court should not have granted summary disposition:  it should be for a jury to decide whether Brown  and his doctor were correct in their claims.  The higher court also pointed out that it was a denial of due process for the lower court to dismiss the claim against Allstate's insured, since at that point, no one had even filed a motion to dismiss: a court cannot grant a motion to dismiss without an opportunity for the adverse party to be made aware of the claimed basis for dismissal and an opportunity to respond.