Thoreson v. Kuntze

25 F. App'x 327
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 26, 2001
DocketNo. 00-1820
StatusPublished

This text of 25 F. App'x 327 (Thoreson v. Kuntze) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thoreson v. Kuntze, 25 F. App'x 327 (6th Cir. 2001).

Opinion

PER CURIAM.

Plaintiff James Thoreson appeals the United States magistrate judge’s grant of summary judgment in favor of Defendant Phillip Kuntze on Thoreson’s personal injury claims. The magistrate’s decision was based on the State of Michigan’s No-Fault Insurance Act, M.C.L. § § 500.3135, M.S.A. § 24.13135. For the following reasons, we AFFIRM the decision of the magistrate judge.

I. Background

Plaintiff James Thoreson (“Thoreson”), a Wisconsin resident, was a passenger in a vehicle that was rear-ended by Defendant Phillip Kuntze (“Kuntze”) on May 2, 1999, in Marquette, Michigan. Thoreson was transported by ambulance to a hospital, where X-rays and a neurological exam were negative. At the time, he complained of pain in his hip and tenderness of the neck and top of his head. The emergency room doctor diagnosed Thoreson with a cervical strain and left thigh contusion. Thoreson’s gait was noted as stiff but he was able to walk “without any apparent difficulty.” (J.A. at 72-73.) Thoreson was released with a soft cervical collar, a recommendation that he use an ice massage for 24 — 48 hours, and a prescription for an anti-inflammatory medication. Following his discharge, Thoreson remained in Marquette for three days, then returned to his home where he visited his chiropractor, Dr. William Smith, and complained of head, neck, upper back, ribs, chest and low back pain. Dr. Smith recommended treatment twice a day and issued a “no work” slip for a one month period.

[329]*329On May 6, 1999, Thoreson saw Dr. Dennis Zahm, who had treated him for chest pain prior to the accident. Dr. Zahm noted that Thoreson reported having “a lot of myalagias and achiness since the accident.” (J.A. at 98.) Dr. Zahm noted a bruise and hematoma on Thoreson’s left thigh, an abrasion to the left scalp and left forehead as well as a sore neck or cervical spasm. In his progress notes. Dr. Zahm stated that Thoreson’s hair transplant plugs (inserted one month before the accident) looked slightly inflamed but “reasonably good.” Eventually, however, a large number of the hair plugs had to be replaced. Finally, Dr. Zahm noted a “very good chance of recovery.” A follow-up exam with Dr. Zahn found that the abrasions on Thoreson’s scalp had been resolved, but he still had a hematoma on his left thigh and a possible torn muscle. Dr. Zahm concluded that Thoreson was “doing extremely well and recovering nicely.” (J.A. at 108.)

Thoreson continued receiving treatment from his chiropractor, Dr. Smith. In June, Dr. Zahm referred him to Dr. Scott Warren, an orthopedic specialist, who noted that Thoreson “had not had significant pain, or noted any specific weakness,” but suspected that Thoreson suffered from a possible slight torn muscle of the posterior lateral aspect of the left thigh. At the end of July 1999, Dr. Warren concluded that the injury was healing nicely and that there were no “particular functional limitations in the future” relative to Thoreson’s status. (J.A, at 123.)

Thoreson was also seen by a dentist for a fractured tooth, possibly as a result of the accident. The fractured tooth was removed and it is unclear what, if any, follow-up took place, though ceramic replacement was anticipated. At the time of the recommendation, Thoreson’s long term prognosis was deemed to be “very good.” (J.A. at 133.)

During his deposition, Thoreson testified that following a month of rest, he returned to work as the manager of a family restaurant, though he is now forced to leave work early as many as two days a week due to fatigue, something that he did not need to do prior to the accident. He also stated that he was not able to return to his seasonal endeavors of skiing and boating.

On July 26, 1999, Thoreson filed this personal injury suit against Kuntze. He claimed that his action was not barred by Michigan’s No-Fault Automobile Statute, M.C.L. § § 500.3135, M.S.A. § 24.13135 (“the statute”), because his injuries resulted in both serious impairment and permanent disfigurement. The parties consented to the jurisdiction of the magistrate judge, who heard oral argument on Kuntze’s motion for summary judgment.

On June 14, 2000, Magistrate Judge Timothy P. Greeley ruled in favor of Kuntze. The magistrate first found that there was no factual dispute regarding Thoreson’s alleged injuries. Based on that determination, the Magistrate Judge found that Thoreson’s allegation that he had suffered a serious impairment to an important bodily function was unsupported due to a lack of objective medical evidence. Alternatively, the loss of Thoreson’s hair plugs, contrary to the opinion of his treating physician, was not deemed to constitute a serious permanent disfigurement under the statute.

II. Standard of Review

A magistrate judge’s decision to grant summary judgment is reviewed de novo, using the same standard used by the district court. See Owens Corning v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 257 F.3d 484, 490-91 (6th Cir.2001). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that par[330]*330t/s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2541, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. Discussion

A. Thoresoris Potential Impairment or Disfigurement is a Question of Law.

The Michigan No-Fault Statute abolished tort liability effective as of 1973 for personal injuries arising out of automobile accidents, except for those incidents in which the plaintiff had suffered death, serious impairment of a bodily function, or a serious permanent disfigurement. In 1995, the Michigan legislature further amended the statute to convert the issue of determining whether a plaintiff satisfied an exception from an issue of fact to an issue of law:

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Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
People v. Dunbar
690 N.W.2d 476 (Michigan Court of Appeals, 2004)
Miller v. Purcell
631 N.W.2d 760 (Michigan Court of Appeals, 2001)
Cassidy v. McGovern
330 N.W.2d 22 (Michigan Supreme Court, 1982)

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Bluebook (online)
25 F. App'x 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thoreson-v-kuntze-ca6-2001.