SERIOUS (IMPAIRMENT) DISCUS-SION

OR-NO LONGER ADROIT AT QUOITS

 

This post recalls on of the more interesting, but probably not one of the most ingenious attempts Michigan's plaintiff PI lawyers employed to meet our Supreme Court's periodic pronouncements on what a "serious impairment of a body function" meant under the Michigan No-Fault Act.

This post is not meant to be a lesson in Michigan legal history.  But given the volume of auto accident litigation, what is, or is not, a serious impairment has been very important to the citizens of this state, and its practicing lawyers.

Although the term "serious impairment" is found in the No-Fault statute, MCLA 500.3135, the term has received radically different interpretations by our Courts over the years.  Seasoned practitioners will remember the cases: Cassidy v McGovern, DiFranco v Pickard, Kreiner v Fischer, and McCormick v Carrier, that defined succeeding eras of auto neg litigation.

During the time the Kreiner case made it more difficult to prove an injury seriously affected a person's lifestyle, so as to meet the threshold, an enterprising plaintiff lawyer developed "The List"-a comprehensive list of activities, the performance of which might be affected by an auto accident related injury.

"The List" was circulated far and wide.  It was sent to clients to fill out, sign and return to their attorneys.  

Now the fun came with how the clients were instructed to complete the form, and what was done with that signed form once it was sent back to the lawyer.

If I remember correctly, the form which my firm used, merely told the client to circle the items he/she could not do after the accident, along with any additional comments the client might wish to include.  

One of the primary uses of "The List" was that it was a signed, and presumably comprehensive statement by the client of his her restrictions after the accident.  As such, it did found itself being attached, perhaps unwisely, to discovery answers.  

The List is still in use, but in modified form.  So, I will not reprint it here.  In the revised form, the client is told to circle only the items the client could do before and are restricted in doing after.  And the form is not used in litigation, but merely as an information gathering tool for the attorney.

That is wise.  While I applaud "The List's" developers for attempting to be comprehensive, I also suspect "The List" was composed during several liquor infused sessions.

For instance, in the "Sports, Recreation and Hobbies" section, the following are listed, among the 80 options:

High jumping
Discus throwing
Javelin throwing

 

Not one of my clients professed to be a pre-accident decathlete, but I did have clients return The List having circled one or more of those items.  I remember the client who circled Discus throwing especially well, as she had to explain that choice in her deposition.  I believe she said she never had thrown a discus before the accident, but assumed she would not have been able to do so after--whatever that activity might involve.

Fortunately the client did not circle one of the other options (which is still on The List):  Quoits.  Defined as:  Quoits is a traditional game which involves the throwing of metal, rope or rubber rings over a set distance, usually to land over or near a spike (sometimes called a hob, mott or pin).  Not sure what a hob or mott is,though unlike 95% of the American public, I know what a game of Quoits looks like, see below.

But, thank goodness the client didn't ring that particular hob, mott or pin on The List.

I can only imagine how Rik Mazzeo of my office would cross examine a plaintiff with a completed "List" in hand.  I did ask him last week, when I game him the latest version.  A faraway, wistful look came into his eyes while a smile played upon his lips.

I might suggest the following changes to the List: get rid of the high jump, discus, and javelin.  And, to give the List a local flavor replace those items with the following:

Feather bowling (See Cadieux Cafe)

Fowling (See Fowling Warehouse)

Pickle Ball (See your local Senior Citizens Center)

But keep Quoits.  Quoits is/are high class.

By the way, the current iteration of The List contains 379 items.  Now that's serious.

I don't remember if The List ever served as the basis for a denial of a Summary Disposition motion, but for inventiveness,  The List gets my vote-about 379 of my votes, in fact.