Anthony F. Caffrey
Cardelli Lanfear, P.C.
Royal Oak, MI
In recent alerts, we have noted that the Michigan Supreme Courts conservative majority had been eliminated. The plaintiffs bar has long hoped that the newly constituted Court would overrule its controversial decision in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004). The Kreiner decision interpreted Michigans no-fault statutory scheme by requiring a plaintiff in a third-party automobile liability lawsuit to satisfy a threshold by showing that the trajectory of his or her life had been affected. This clarified standard precluded temporary and minor impairments from satisfying the statutory threshold. This past weekend, the Michigan Supreme Court issued an opinion overruling the Kreiner decision. With the Kreiner obstacle removed, there is no question that there will be a substantial rise in third-party automotive liability lawsuits filed.
Before the Kreiner decision, establishing a threshold injury was not an overly difficult endeavor. A temporary hospitalization or missed period of work often satisfied the statutory threshold.
In Kreiner, the Court announced that, in order for the no-fault statutory scheme to be faithfully followed, a threshold injury could not be one that resulted in a plaintiff missing only weeks or months of work. If a plaintiff was eventually able to return to a comparable level of work, the plaintiffs life had not been sufficiently impaired. Moreover, even a permanent abandonment of one or more hobbies did not satisfy this standard. The result of Kreiner was the dismissal of many third-party automobile liability cases, which naturally led to a dramatic downturn in the number of such lawsuits being filed.
In granting leave to consider the McCormick matter, the newly constituted majority of the Michigan Supreme Court followed through on promises to revisit Kreiner. This majority has now issued an opinion overruling Kreiner and returned to the threshold analysis to pre-Kreiner.
In the McCormick case, the plaintiff suffered a broken ankle that caused him to miss twelve months of work. During most of this period, however, he has able to care for himself and engage in all recreational activities. Based on his ability to resume his normal life, the McCormick dissenting judges would have applied Kreiner to rule that this was not a threshold injury.
With the Kreiner decision overruled, the legal pendulum has, again, significantly shifted to favor plaintiffs. It is our understanding that many plaintiff-oriented firms have been holding cases awaiting the reversal of Kreiner. The most immediate result of McCormick will likely be a dramatic increase in filings based on both old accidents and new accidents.
 McCormick v Carrier, __ Mich __; __ NW2d __ (Docket No. 136738, July 31, 2010).