Following the Michigan Supreme Court’s decision in McCormick v Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010), plaintiffs’ attorneys have become adept at having their clients parrot certain phrases during deposition testimony and in written discovery. As any No-Fault insurance defense practitioner is readily aware, plaintiffs in all but the most ill-prepared cases will list a litany of claimed “limitations,” such as the inability to perform household chores. It is matched only by an equally vast list of purported “impairments.” Having established cursory reference to “limitations” and “impairments,” the defense counsel’s ability to succeed on a motion for summary disposition is impacted. Machinations of the plaintiffs’ counsel notwithstanding, winning on the tort threshold during motion practice is possible, but it requires careful case development through discovery.
This firm’s insurance defense practice group has been successful on a number of motions for summary disposition. These include dismissal of an uninsured motorist claim; avoidance of the imposition of attorney fees and costs following a priority dispute; and the successful application of the “one-year back” rule found in MCL 500.3145(1) to bar receipt of certain benefits. Motion practice has also yielded positive outcomes on tort threshold issues. In Hernandez v Dorn, File No. 14-3903-NI (Ottawa County Circuit Court), plaintiff sought policy limits following an automobile accident. Not until one week after the accident did the plaintiff present for any treatment and even then only made complaints related to generalized neck and back pain. Physical examination and diagnostic testing were unavailing in demonstrating any objective impairment. Discovery further established that the plaintiff only took ibuprofen for his pain; never had surgery; and only minimally engaged in physical therapy for his purported “injuries,” including skipping multiple sessions. Despite missing one month of work, this firm successfully argued during the hearing on the defendant’s motion for summary disposition that the plaintiff could not demonstrate either an objectively manifested impairment or that the injury affected his ability to lead his normal life. Injuries complained about related solely to the plaintiff’s purported pain, lacking a supporting clinical diagnosis; therefore, there was no objectively manifested impairment.
Similarly, in Esterline v Clark, File No. 14-187-NF (Eaton County Circuit Court), the plaintiff sought policy limits following an automobile accident. As in Hernandez, the plaintiff in Esterline was diagnosed with only a minor back sprain and chest pain. Diagnostic testing was uniformly negative and the plaintiff underwent no physical therapy. Subpoenaing the plaintiff’s employment records further revealed that he admitted in an employment application filed soon after the accident that he could climb stairs, carry heavy loads, work 10 hour days, and did not require any extra assistance in performing work related duties. Based on the foregoing, this firm successfully argued that the plaintiff was unable to meet the rigorous standard set-forth in McCormick to establish a threshold injury, specifically that he could not demonstrate either an objectively manifested impairment or that the injury affected his ability to lead his normal life
Each third party No-Fault case admittedly presents a unique factual scenario. Consideration of a myriad of different facts will impact whether challenging the plaintiff’s assertion that he or she suffered a threshold injury is warranted. Careful and thorough discovery practices can assist a defense practitioner in making this decision. Medical records, even if voluminous, should be reviewed, with particular attention paid to pre-existing conditions and diagnostic test results. In addition to medical records, cell phone and employment records should also be scrutinized, along with other non-traditional discovery materials such as social media websites and printouts from wearable technology. A plaintiff may be able to be sufficiently coached to make repetitive and banal statements about “limitations” and “impairments” in a deposition setting, but will likely be unable to be similarly controlled in other circumstances.
Even if unsuccessful, filing a motion for summary disposition puts the plaintiff’s counsel on notice that defense counsel is fully aware of the weaknesses of the plaintiff’s case. In more than one instance, this firm was able to reach a favorable settlement outcome after filing a motion for summary disposition, without actually having the hearing on the motion.