Badly fractured femur and 18 month recovery aren't a "serious impairment"

Michael Sower filed suit after he was hurt in a car accident by a negligent driver.  The at-fault's insurer filed a motion, seeking the dismissal of Sower's claim on the basis that he had not suffered a "serious impairment of a bodily function."  Under the no fault act, drunks or negligent drivers (or their insurers) don't owe their victims any compensation unless the victim suffers a threshold injury. Threshold injuries, under the statutory language, are "death, permanent serious disfigurement and a "serious impairment of bodily function."

A few years ago, the activist majority of the so-called Engler Supreme Court took it upon themselves to re-write the statute to eliminate claims.  They re-defined "serious impairment," by judicial fiat, to require that the victim establish a "life-altering impact" in order to prove a compensable claim.  Using this revised standard, three of the more activist conservative judges of the Court of Appeals determined this month that Mr. Sower had not stated a claim for serious impairment, even though:

He had suffered a severe, comminuted, displaced fracture of the femur, just above the knee.

His doctors had to insert an intermedullary rod into the femur, surgically, to begin the repairs.

He was on crutches and non-weight-bearing for about three months.

He was required to continue to use crutches, intermittently in the months after he became weight-bearing, and was required to undergo extensive physical therapy to regain use of his leg.

He was unable to work for six months; and in the meantime his employer had replaced him.  Ultimately, he missed 18 months of employment before finding a job.

He had to make major changes in his recreational activities and lifestyle, due to nagging pain in the area of the injury.

Regardless, Judges Kirsten Kelly, Joel Hoekstra and Bill Whitbeck concluded that "the record in this case does not show that the injury's effect on plaintiff's life was 'extensive'..."  I would bet a substantial figure on the fact that all three of these judges would come to a starkly different conclusion about the "seriousness" of these injuries, if the injuries were suffered by someone close to them.  No reasonable person can hear Sower's story and consider these injuries not to be "serious." 

The Supreme Court is rumored to be re-evaluating the so-called Kreiner, "life-altering", definition of "serious injury," and perhaps cases like Sower's will hasten the Court's remedial action.  We hope that Sower appeals such an unfair windfall to the at-fault's insurance company.