The Court of Appeals struggles with Kreiner standard
A recent decision in Anderson v. Alexander helps to illuminate the struggle involved in interpreting the Kreiner case, while also attempting to do justice to an injury victim.
In the Anderson case, the husband and wife were stopped at the entrance ramp of a freeway, with another car behind them, when both cars were rear-ended by the Defendant. Both plaintiffs were taken to a hospital where Mr. Anderson endured spinal fusion surgery in his neck. The Defendant did not deny liability, however, her insurer sought to dismiss the Andersons' injury claims on the basis that neither injury met the "serious impairment" standard as interpreted by the Engler majority on the Michigan Supreme Court. The trial court dismissed both injury cases, and while his wife did not appeal, Mr. Anderson did.
Mr. Anderson was 64 years old when the wreck occurred. Three years earlier, he had been approved for Social Security Disability because of a lower back spinal injury. His history included chronic headaches and arthritis, as well as low back pain and depression. Based on this pre-existing history and the limitations resulting from the prior injury, the trial court held that Mr. Anderson's life was not seriously disrupted by the neck injury and fusion he suffered in this collision.
While a dissenting judge agreed with the lower court and would have denied Mr. Anderson any recovery, the majority of the Court of Appeals disagreed. They overturned the lower court's decision, emphasizing the treating neurosurgeon's affidavit confirming that this motor vehicle collision "significantly aggravated" his prior spinal cord problems and "caused him restrictions in terms of bending, movement and other functions of his cervical spine". The majority noted that the gravamen of the lower court's reasoning was that because Anderson had an aging spine and was in poor physical condition, he could not suffer a "life-altering" injury. The majority adamantly refused to accept such an outcome and noted that Anderson documented a long list of changes in his lifestyle resulting from the injury to and fusion of his neck.
The dissenting judge cited the Kreiner standard, as interpreted in the Benefiel decision: "...we must engage in a fact intensive inquiry, regarding what constituted plaintiff's 'whole life' [and compare it with his 'normal' life]..." The court must consider his "injuries, functional deficiencies, and activity limitations existing before..." The dissenter quoted the trial court's criticism of the neurosurgeon's failure to explain "why he is no longer able to perform yard work" and other activities or "why such work was an important aspect of his life". Quoting these statements reminds us of the aphorism suggesting that "common sense isn't really so common". The dissenter then concluded that Mr. Anderson's spinal injury and the resulting fusion of several vertebrae "somewhat aggravated the condition of a person whose frailty was already well ensconced" and therefore would have denied him any recovery.
Sadly, this dissenting judgment could be an accurate reading of the activist Kreiner standard and reflects the thinking of many jurists who are dependent upon insurers and the Chamber of Commerce for election contributions. There is a movement afoot in the Legislature to reject the Kreiner interpretation of the No Fault "serious impairment" standard, and reportedly there are enough votes to pass this "fix" if the Republican leadership would cooperate. We hope it gains traction soon, before too many people with colloquially "serious" injuries are denied recovery because they were already "fragile" or "brittle" or "frail" and had the bad luck to run into a bad driver and also the wrong kind of judge.