Kreiner's No-Fault Liability Tort Standard Replaced by Subjective Case-by-Case Basis in McCormick v Carrier Ruling

Michigan no-fault liability is back! Justice Michael F. Cavanagh overruled Kreiner v. Fischer which had previously set the threshold standard for recovery under Michigan’s non-economic tort liability under MCL 500.3135.

On July 31, 2010 Justice Michael F. Cavanagh writing for the Michigan Supreme Court majority decided McCormick v. Carrier, Case No. 136738 (MI July 31, 2010), in favor of Plaintiff, in a finding that Plaintiff McCormick suffered a serious impairment of a body function.

At issue in this Michigan Supreme Court case is the proper interpretation of the “serious impairment of body function” threshold for non-economic tort liability under MCL 500.3135. Prior to this ruling, the standard for the threshold for non-economic tort liability in Michigan was set by the Michigan Supreme Court’s ruling in Kreiner. The Kreiner standard held that for an injury to be cognizable, there must be a serious impairment of a bodily function that prohibits plaintiff from living his normal life and further required that an "objectively manifested impairment" be evidenced by medical testimony.

Addressing the issue of the proper threshold for non-economic tort liability in McCormick v. Carrier, the Michigan Supreme Court majority overruled the Kreiner standard;

“We hold that Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), was wrongly decided because it departed from the plain language of MCL 500.3135, and is therefore overruled.”

The Michigan Supreme Court’s McCormick decision did the following to the previous Kreiner threshold for non-economic tort liability;

1. Removed the requirement that an "objectively manifested impairment" be evidenced by medical testimony;
2. Stated that the "affects a person's ability to lead his or her normal life" standard is subjective and should be determined on a case by case basis;
3. Drew attention to the fact that a person's normal life prior to the accident need only be "affected" and not "destroyed";
4. The language only requires that the "ability" be affected--meaning a person's "normal life" need not be affected if it is harder, because of an effect on ability, to lead that normal life;
5. There is no time restriction on a "serious impairment."  It could last only a few days;
6. The impairment doesn't have to affect the entire course of the injured party's life as implied by Kreimer; and
7. The court threw out the judicially created factors that compare a person's pre-accident life to his post-accident life.

The new test under the McCormick standard is the following:

(A) Determine whether there is a factual issue as to whether an impairment of an important bodily function has occurred;
(B) If there is no factual dispute, or no material factual dispute, the court may determine whether the threshold is met as a matter of law; and
(C) Apply the McCormick test, which is fact specific and must be considered on a case by case basis, to recover for non-economic tort liability one must demonstrate:

(1) An objectively manifested impairment (observable or perceivable from actual symptoms or conditions);
(2) Of an important body function (a body function of value, significance, or consequence to the injured person), that;
(3) Affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Click here to get the full Rodney McCormick v. Larry Carrier and Allied Automotive Group, Inc., indemnitor of General Motors Corporation, decision.

For more information about Michigan’s no-fault laws and history on the previous (Kreiner) standard;

Kreiner Decision Tortures Michigan No-Fault Law

Understand Your Michigan No-Fault Rights