Clearing the Serious-Impairment Threshold When Causation Is Contested
On a dry afternoon in Kalamazoo, Renata Ortiz is driving north on Stadium Drive when Kevin Pham, turning left out of a strip-mall driveway, crosses her lane; the front of Ortiz's car strikes his rear quarter panel. Ortiz, 41, goes by ambulance to the ER with neck and low-back pain. She has pre-existing L4-L5 degenerative disc disease documented in 2021. An MRI six weeks after the crash shows a new 4 mm disc extrusion at L5-S1 contacting a nerve root; her physiatrist imposes lifting, bending, and sitting restrictions and keeps her off her warehouse supervisor job. After eight weeks of physical therapy she returns with a 10-pound lifting limit and 25% lower pay. She missed nine weeks of work at $1,150 per week. Total medical bills are $310,000. She selected a $250,000 PIP limit with a $1,000 deductible on her own policy. Pham's insurer concedes negligence but argues Ortiz was 30% at fault because she was texting and did not brake until impact; reconstruction puts her pre-braking speed at 44 mph in a 40 mph zone.
1. Pham moves for summary disposition, arguing Ortiz cannot satisfy the serious-impairment threshold. Who decides that question, and how should the court analyze it?
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This is a jury question; Ortiz survives unless the causation dispute is genuinely unsupported.
MCL 500.3135(1) abolishes tort liability except for enumerated exceptions, including serious impairment of body function. Section 3135(5) defines it as an objectively manifested impairment of an important body function that affects the person's general ability to lead a normal life - the three-part McCormick v Carrier framework, now codified.
- Objectively manifested: a 4 mm extrusion at L5-S1 contacting a nerve root on MRI is objective, not self-reported. Pham will argue it is degeneration, not trauma, and will offer a defense radiologist. That conflict is a causation question for the jury; the court does not weigh competing medical opinions against each other at this stage.
- Important body function: lifting, bending, and prolonged sitting are functions of the back and lower extremities. This prong is easily satisfied.
- General ability to lead a normal life: courts examine the effect on the person's life, not the diagnosis. Here there is a physician-imposed lifting limit, eight weeks of therapy, a nine-week absence from work, and a 25% pay reduction on return. That is more than an inconvenience.
The court decides the threshold as a matter of law only where there is no factual dispute about the nature and extent of the impairment. Because the parties genuinely dispute whether the extrusion is traumatic and how much the restrictions limit her daily life, the judge must let the jury decide. Pham's concession of negligence concedes nothing about causation or the threshold. Once she clears it, she may recover all noneconomic damages proved - pain, suffering, fright, shock, embarrassment - not merely the 'excess' above PIP.
2. Assuming the threshold is met, what economic damages may Ortiz recover from Pham, and how do the PIP limits and the monthly work-loss cap affect the calculation?
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Split the claim into PIP layers; do not double-count.
Allowable expenses. Ortiz's own carrier pays allowable expenses up to the $250,000 limit she selected, subject to her $1,000 deductible. Her bills are $310,000, leaving $60,000 of allowable expense above the limit. Under MCL 500.3135(3)(c), tort liability exists for allowable expenses in excess of the PIP limits - that is the $60,000, reduced by comparative fault. The $1,000 deductible is a closer call: it is an allowable expense she incurred out of pocket, but it is not 'in excess of the limit.' The conservative reading treats it as a contract matter with her own carrier; pleading it is defensible, but expect the defense to resist.
Work loss. PIP pays work loss under MCL 500.3107(1)(b), subject to a statutory monthly maximum adjusted each October (in the low-$6,000s per month in recent years). Nine weeks at $1,150 is $10,350, roughly $4,930 per month - below the cap. PIP therefore covers all of it, and there is no excess work-loss claim for those nine weeks. Pleading the same weeks as both PIP and tort damages invites a double-recovery objection.
Future loss. The 25% pay cut after return to work is future loss of earning capacity. PIP work loss is limited to three years of actual loss, so plead impairment of earning capacity for the period beyond the PIP window, supported by a vocational expert and her wage records.
Net pleading: $60,000 excess medical, future wage loss, and noneconomic damages. Bills already paid by PIP are not recoverable again from Pham.
3. How should the 30% comparative-fault allegation be handled at trial and in settlement advice, and what do you do with the 44 mph figure?
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Thirty percent reduces the award; it does not bar the claim.
Michigan uses modified comparative fault. The fact-finder allocates percentages under MCL 600.6304 and the court reduces the damages under MCL 600.2959. At 30%, Ortiz is under the 50% line, so she keeps her claim, reduced dollar for dollar: a $500,000 noneconomic verdict becomes $350,000; the $60,000 excess medical becomes $42,000.
What the defense may properly use: texting while driving is evidence of negligence and is fair game. The failure to brake until impact will be argued as avoidable aggravation of damages - an allocation issue. The 44 mph figure in a 40 mph zone is a minor point: speeding is not negligence per se unless it was a proximate cause, and the reconstruction is attackable on methodology. Push for a hearing on the reconstruction if the defense plans to make speed a centerpiece.
What to guard against: any suggestion that a plaintiff more than 50% at fault still recovers noneconomic damages. As MCL 600.2959 is generally read, a plaintiff whose fault exceeds the aggregate fault of others loses noneconomic damages while reduced economic damages may still be recoverable - a structure worth understanding before advising on a $200,000 demand.
Settlement math: compare any offer to the net verdict, not the gross. A $200,000 offer against a projected $350,000 noneconomic plus $42,000 economic recovery, discounted for litigation risk and two years of delay, is closer than it first appears.
Trial mechanics: preserve the allocation in the final pretrial order and submit a special verdict form with separate lines for noneconomic damages, economic damages, and the percentage of fault, so the reduction is applied to the correct categories.