*1
Automotive
as a
It further
reconsideration,
prior order,
motion
granted
vacated its
(2009).
application
appeal.
for leave to
looked at on its merits own facts and the lens restraint, judicial sense, common fairness. and concurring, separately Justice wrote to state that Hathaway, any analysis impact of stare decisis must focus on the overruling precedent. individual case and reason for She overruling para- further stated that reasons for Kreiner are any special compelling mount to articulated test and that the justifications overwhelming. so are to do joined by Justice Justices CORRIGAN Markman, Young, dissenting, Appeals, would have affirmed the Court of majority’s stated that the overrule decision to Kreiner’a stan- determining dards for whether an affects *3 ability “general to lead her his or normal life” is at language act, resulting odds with the actual of the in a no-fault legislative compromise gave nullification of the that insureds ability assured, adequate, prompt reparation to obtain and fault, regardless exchange for certain economic losses a of for ability limitation their on to sue for noneconomic losses. He disagreed temporal considerations, such as the duration of wholly impairment, largely determining are or irrelevant impairment plaintiffs “general ability whether an affected the questioned to lead his or her normal life.” He how a court could possibly impairment person’s determine whether an affects the “general ability taking lead his to or her normal life” without temporal enacting into account considerations. the “serious body threshold, impairment joining function” and in it with permanent disfigurement” thresholds, the “death” and “serious Legislature unlikely impairment in mind to have had an plaintiff’s ability a affected lead his or her to normal time, being life for a moment no little or consideration given plaintiffs “general ability to the lead his or her normal beyond case, life” that moment. In this the lower courts did not concluding impairment plaintiff’s err in that the not affect did v Carrier therefore, and, ability life” “general lead his normal body function” the “serious did not meet threshold. Impairment — — — Serious Words and Phrases No-Fault
1. Insurance Objectively Impairments. — Body Manifested Function statutory purposes impairment, of the objectively for manifested An damages resulting from recovering tort noneconomic threshold for accident, impairment that is evidenced is an a motor vehicle other than symptoms conditions that someone actual or body impairing perceive injured person would observe or 500.3135[7]). (MCL function — Impairment — — Serious Words and Phrases Insurance No-Fault 2. Body — Important Body Functions. Function important purposes no-fault tort for A function is value, consequence significance, to the or if it has threshold (MCL500.3135[7]). particular person at issue — — Impairment — 3. Insurance Serious Words Phrases No-Fault — Ability Body Life. to Lead One’s Normal Function General ability life has been person’s general to lead his or her normal A purposes tort threshold when of the no-fault affected for skill, power, person’s influenced some of the life; percentage of is no minimum capacity lead a normal there affected, living nor is person’s manner of that must normal long impair- requirement express temporal for how there an 500.3135[7]). (MCL last ment must Hilborn, Hilborn (by Craig EC. E. & Hilborn R. Kramer), & Thomas Mark and Bendure (by David M. Bendure) Rodney McCormick. Michael E McDonald McDonald
Grzanka Grit (by Inc. Group, Lipford) John W. for Allied Automotive Amici Curiae:
John A. Braden for himself. *4 Brake, McIntyre, & EC. (by Boughton Dramis
Sinas Hicks), A. the Coalition and Steven for T. Sinas George Auto No-Fault. Protecting 487 MICH 180 Opinion Court Miller, (by Saylor),
Goran Lucow EC. Daniel S. the Insurance Michigan. Institute of Firm,
Speaker (by Law PLLC Liisa R. Speaker), for Michigan Association for Justice. Cline, Griffin, Brown), Cline & PC T. (by José David E. Christensen for the Negligence Section of the Bar Michigan. State General, Cox, Restuccia,
Michael A. B. Attorney Eric General, Solicitor and Suzan M. and Christopher Sanford Kerr, General, L. Attorneys Assistant for the Office of Financial and Insurance Regulation. Cox, General,
Michael Attorney Restuccia, A. B. Eric General, and Solicitor Margaret Nelson and Ann M. Sherman, Attorneys General, Assistant for the Attor- ney General. J. The issue in this case is the proper CAVANAGH,
interpretation of the “serious body func- tion” threshold for non-economic tort liability under MCL 500.3135. hold Fischer, We that Kreiner v 109; Mich 611 (2004), NW2d wrongly decided because it from departed the plain language of MCL 500.3135, and is therefore overruled. We further hold that, in case, as a matter law, plaintiff suffered serious Accordingly, function. we reverse and remand the case to the trial court for proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS This case arises out of an injury plaintiff, Rod- ney McCormick, working suffered while as a medium- duty truck loader at a General Motors Corporation *5 Carrier Opinion the Court (GM) assisting mainly consisted job Plaintiff s plant.1 climbing up and trucks, required which loading in the walking, and trailers, standing, around trucks shifts, 9- to 10-hour generally He worked heavy lifting. days week. into 2005, backed a truck 17, a coworker January On over, plain- drove over him and then knocking plaintiff, to the immediately taken Plaintiff was tiffs left ankle. left medial a fracture of his x-rays showed hospital, and hospital from the Plaintiff was released malleolus.2 surgically metal hardware was days two later day, and bone plaintiffs ankle to stabilize inserted into his weight-bearing from was restricted fragments. Plaintiff then surgery month after activities for one The therapy. physical months of multiple underwent surgery on removed a second metal hardware was 21, 2005. October a medi- plaintiff underwent request,
At defendant’s Drouillard in November cal with Dr. Paul evaluation return to work He indicated that could plaintiff 2005. standing walking. from prolonged but was restricted 2006, performed who January specialist On him to return to work surgeries cleared report The noted that specialist’s without restrictions. motion,” and an range “excellent plaintiff had an degenerative with on x-ray healing [sic] showed “solid ankle.” joint disease of his 16, 2006, returned to
Beginning
January
plaintiff
on
days,
for several
medium-duty
as a
truck loader
work
remaining
point
at this
in the case is GM’s
defendant
Inc,
parties
indemnitor,
Group,
because the
have
Allied Automotive
simplicity’s
original
stipulated
defendants. For
the release of
other
sake,
entity.
opinion
“defendant” to refer to this
will use
protrudes
bony prominence
from the
The medial malleolus is
(26th ed).
Dictionary
Medical
medial side of the ankle. Stedman’s
but he had walking, climbing, and crouching because of continuing ankle He pain. requested that his job duties be restricted to driving, but defendant di- rected him to cease work.
Defendant required plaintiff undergo a functional (FCE) capacity evaluation in March 2006. The FCE determined was unable to perform the range of job tasks his required, including stooping, crouching, climbing, standing, sustained heavy *6 lifting. This was due to ankle and pain,3 shoulder a moderate limp, and difficulty bearing weight on his left ankle. The stated report that plaintiffs range of motion in his left ankle was not within normal limits and that difficulty climbing lifting weights had been re- ported and observed.
In May 2006, Dr. Drouillard examined plaintiff again and reported that plaintiff could return to work. Dr. Drouillard’s report stated plaintiff complained of ankle and foot pain, but the doctor found objective “no abnormality to correspond with subjective his com- plaints.” 2006, June plaintiff also underwent a mag- (MRI) netic resonance imaging test, which showed some postoperative degenerative scar and tissue formation around his left ankle. At request, another FCE was performed 1, on August 2006, which affirmed that plaintiff could return to work without restriction and was capable of performing the tasks required for job. his report stated plaintiff complained of “occasional aching” and tightness ankle, in his but it did not to appear aggravated be by activities such as prolonged standing or walking. It also noted that plaintiffs range of motion his left ankle was still not limits, within normal although it had improved since the March 2006 FCE. pre-existing Plaintiff injury had a back and shoulder that is unrelated to the incident in this case. v Carrier Opinion the Court 2006, 16, August on
Plaintiff returned work injury. his He volunteered after he suffered months his was not pay job, to a different assigned job new since his perform He has been able reduced. that time. recovery suit, seeking 24,2006, filed
On March In his October MCL 500.3135. injuries his under inci- that at the time testified deposition, plaintiff life before man and his normal dent, 49-year-old he was working 60 hours week consisted of mostly the incident also was He stated that he medium-duty truck loader. as a in the spring fished golfer” frequently a “weekend that he he He testified from a boat that owns. and summer and sum- spring at levels fishing pre-incident he returned of2006, he has once since only golfed mer but and take care of his stated that he can drive to work.4He and that his relation- needs without assistance personal affected. He stated with his wife has not been ship for his ankle since sought has not medical treatment he to return to work approved when he was January that his life is restriction. He further testified without “limited,” and he normal,” it is although but “painful, pain. ankle experience continues to *7 regarding to which in the record the extent There are no facts January January the extent to plaintiff 2005 and 2006 or fished between golf period the incident and when he able to in the between which he was parties work, contrary despite arguments to the both returned to alleged plaintiff that was able to fish and the Defendant has dissent. support working, it cites is but factual while he was not after plaintiffs in the six or seven months that he fished statement work, initially January 2006, he was cleared to return which was when actually Although plaintiffs counsel and when he returned to work. plaintiff agreed arguments court that had been before the trial referring. period fishing, he was unclear as to what time it was Court, deposition, alleges plaintiffs that the time of his brief to this he frequency fishing as before the the same he had “returned” to with fishing accident, might arguing suggests plaintiff that his which interrupted. activities were Mich 180
Opinion of the Court granted The trial defendant’s motion for sum- court mary on the had disposition basis that recov- relatively ered and could meet well not serious 500.3135(1). in MCL provided threshold affirmed, judge The Court of one dissent- Appeals with Carrier, ing. opinion McCormick unpublished per 25, Appeals, curiam of the Court of issued March (Docket 275888). that, No. The held under Kreiner, plaintiffs impairment did not affect ability his to lead life his normal because he is able to care for himself, golf, fish and and work at the same rate of pay. The disagreed, dissent two doctors had arguing determined the impairment problems would cause over plaintiffs employer entire life and his had deter- mined perform duties, that he could not his work main part of “normal” his life. denying
After initially
appeal,
leave to
this Court
granted
reconsideration,
motion
for
vacated
its prior order,
granted
for
application
leave to
(2009).
appeal.
v Carrier,
II. STANDARD OF REVIEW
This
summary
Court reviews a motion
disposition
de
Egbert
Trust,
novo. In re
R
19,
Smith
480 Mich
(2008).
23-24;
745 NW2d
proper interpretation
The
of a
legal
statute is a
question that
this Court also
Co,
reviews de
Herman
novo.
v Berrien
(2008).
358;
III. ANALYSIS presented issue this case the proper inter- pretation of MCL 500.3135. We hold that Kreiner incor- rectly interpreted MCL 500.3135 and overruled be- cause it is plain language inconsistent the statute’s *8 Carrier v Opinion of the Court Further, interpreta- proper under the opinion. and this that, statute, demonstrated tion of law, he suffered a serious matter function. 500.3135
A. OVERVIEW OF MCL
the no-
Michigan Legislature adopted
The act
act,
seq.
MCL 500.3101 et
fault
insurance
program
motor
insurance
compulsory
created a
vehicle
directly
recover
from their
may
under which insureds
insurers,
fault,
for
eco
regard
qualifying
without
from motor vehicle incidents. See
arising
nomic losses
exchange
ensuring
MCL 500.3101 and 500.3105. In
loss, the act
prompt recovery
certain and
for economic
MCL 500.3135. See also Di
liability.
also limited tort
Pickard,
32, 40-41;
Mich
Under the
tort
for non-economic loss
maintenance,
out
or use of a
arising
ownership,
qualifying motor vehicle is limited to a list of enumer-
500.3135(3).
ated circumstances. MCL
The act creates
500.3135(1),
threshold
in MCL
which has
requirements
unchanged
key aspects
remained
in all
since the act was
adopted.
currently provides
“[a]
That subsection
subject
liability
remains
to tort
for noneconomic
person
The threshold
at
in
requirement
issue
this case is
plaintiff
whether
has suffered “serious impairment of
body function.” The act did
originally
not
define this
phrase. Accordingly, it
fell
initially
Court to do
this
so, and the result was a series of
In
differing opinions.
McGovern,
Cassidy
502;
330 NW2d
(1982), this Court held that
impair
whether
serious
ment threshold is met is a question of law for the court
to decide where there is no material disputed fact. It
further
threshold,
held that
order to meet the
plaintiff must show an objectively manifested injury
and an impairment of an important body function,
which it defined
“an objective
standard that looks to
the effect
injury
of an
on the person’s general ability to
live a normal life.” Id. at 505. This Court
in part
later
modified and in part affirmed
Cassidy DiFranco. The
DiFranco Court agreed
that a
had to suffer an
objectively manifested
injury,
rejected
but
the Cassidy
Court’s determination that
the impairment needed to
“important”
be
and its definition of “important.” Di
Franco,
61-67,
amended MCL 500.3135 to define a “serious impair- ment of body function” as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal 500.3135(7). life.” MCL Legislature The expressly also v Carrier Opinion op the Court impairment of provided a serious that whether “question^ law” for is a has occurred function regard- dispute is a factual unless there decide court to dispute injury ing and extent of nature deciding MCL is met. the standard whether relevant 500.3135(2)(a). incorporated Legislature Thus, Cassidy language also but DiFranco and from some changes.5 significant made some provisions interpreted amended This Court question Court before 2004, in Kreiner. interpreted majority properly the Kreiner whether interpretation should not, its statute, and, if whether overruled. OF 500.3135 *10 INTERPRETATION MCL
B.
give
statutory
goal
primary
is to
construction
of
The
Briggs
Legislature’s
Serv, LLC
Tax
intent.
effect to the
76;
753
69,
780 NW2d
Sch, 485 Mich
Detroit Pub
v
(2010).
language
reviewing
begins by
This Court
unambigu-
language is clear and
statute, and, if the
Legislature
presumed
intended the
ous,
it is
meaning expressed
construc-
in the statute. Id. Judicial
required
unambiguous
nor
statute is neither
an
tion of
5
rejected
Legislature
Di
broadly
stated that
courts have
Some
8,
Kreiner,
that is
Cassidy,
Mich at 121 n
but
see
471
in favor of
Franco
Legislature
language adopted
oversimplification.
of the
Some
Legislature
Cassidy,
consistently
and the
DiFranco and
in both
was used
Cassidy.
differ
rejected
similarities and
clearly
The
some elements
Cassidy
amendments of MCL
and the
DiFranco and
ences between
they
significant.
are
below to the extent
will be discussed
500.3135
my
it
disagrees in
statement
Although
the abstract
the dissent
rejected
merely
Legislature
oversimplification
to state that
is an
unable to
Cassidy,
conclude that
it is
I can
DiFranco in favor of
given
arguments,
any specific, substantive
support
accusation with
this
analysis
reject my
nuanced
expressly
or
more
to
address
that it fails
rejected
Legislature adopted
from
phrases
specific
that the
each of
Cassidy and DiFranco.
192
Mich 180
487
Opinion of the Court
permitted.6
re MCI Telecom
460 Mich
Complaint,
(1999).
396, 411;
1. A OF LAW QUESTION OR FACT UNDER MCL step The first in interpreting MCL 500.3135 is to determine the of a proper role court in applying MCL 500.3135(1) (7). Legislature addressed this issue in the amended 500.3135(2)(a), MCL which states part: relevant injured
The issues of
person
whether an
has suffered
serious
permanent
function or
serious
*11
disfigurement
questions
are
of law for the
if
court
the court
following:
finds either
the
6
disagree
ambiguous.
This Court’s members
on when a statute is
See
(2009)
Magna Corp,
300, 310-313;
Petersen v
484 Mich
(i) dispute concerning the nature There is no factual injuries. person’s extent of the (ii) concerning the nature and dispute factual There is a dispute is not injuries, but the person’s the extent of person as to whether to the determination material body perma- or impairment function suffered a serious disfigurement. nent serious statute, thresh language plain
Under the
a serious
has suffered
person
question
old
whether
should be determined
body
function
no factual
long
as there is
court as a matter of law
of the per
nature and extent
“the
dispute regarding
determining
whether
that is material
injuries”
son’s
material
met.7 If there is a
standards are
the threshold
7
500.3135(2)(a)
unconstitutionally
Notably,
conflict with
could
MCL
(1)
2.116(0(10)
required
a
is
resolve
in those cases wherein court
MCR
material,
regard
the nature and
disputed
to issues other than
facts with
injury actually
injury,
such as the extent to which
extent of
injured
party
that function as
impairs
relied on
a
function or
(2)
life,
part
pre-accident
the threshold is
of his or her
decide whether
though
people
from
coulddraw different conclusions
met even
reasonable
Co,
153, 161-162;
Square
Mich
516 NW2d
facts. See Skinner v
D
445
Co,
348,
(1994),
Cas
460 Mich
and Henderson v State Farm Fire &
(1999).
357;
2. A “SERIOUS IMPAIRMENTOF BODYFUNCTION”
500.3135(1)
(7)
UNDER MCL
AND
In those cases where
may
the court
decide whether
the serious impairment
threshold is met as a matter of
law, the next issue is the proper interpretation of MCL
500.3135(7). It provides that, for purposes of the sec-
tion, a “serious impairment of body function” is “an
objectively manifested impairment of an important
body function that affects the person’s general ability to
intended,
part,
Insurance
prescribe
Code was
procedures
“to
certain
maintaining
liability arising
[tort
out of certain accidents].” See the
222,
title of
a. AN OBJECTIVELY
that the
it must be established
prong,
Under the first
objectively
manifested
has suffered
injured person
meaning
function. The common
body
impairment
apparent
impairment”
“an
manifested
objectively
impaired
The Kreiner
first addressed whether
analyzed
important
was
and then
whether
function was
Kreiner,
find it more
objectively
Mich at 132-133. We
manifested.
objectively
statutory
mani
text to first address the
consistent with the
requirement.
fested
To the adverb “objectively” is defined as “in an objective manner,” Webster’s Third New Interna- tional Dictionary (1966), and adjective “objective” is defined as “1. Of or having to do with a material object as distinguished from a mental concept. 2. Having actual existence or reality. 3. a. Uninfluenced emo- tion, surmise, personal prejudice, b. Based on observ- able phenomena; presented factually” The American Heritage (1982). Dictionary, Second College Edition It “ is defined specifically in the medical context as [indi- cating symptom or condition perceived as a sign of disease someone other than the person afflicted.” Id.10 The verb “manifest” is defined as “1. To show or demonstrate plainly; reveal. 2. To be of; evidence *14 prove.” Overall, Id. these definitions suggest that common meaning of “objectively manifested” in MCL 500.3135(7) is an impairment that is evidenced by actual symptoms or conditions that someone other than injured person would perceive observe or as impair- ing function. In words, other an “objectively manifested” impairment is commonly understood as one observable or perceivable from actual symptoms or conditions. 10 See also (1966), Webster’s Dictionary Third New International defin ing “objective,” part, “publicly relevant intersubjectively or observ especially by able or verifiable independent scientific methods: of what is
personal private apprehension or feelings: our of such nature that agree holding rational minds it real or true or valid.” It also defines “objective” in symptom the context “perceptible “of a of disease” as (italics persons omitted). other than an affected individual.” Id. v Carrier Opinion the Court 500.3135(7) the word not contain MCL does
Notably,
statute,
of the
and,
plain language
under the
“injury,”
objec-
impairment
is whether the
proper inquiry
This
manifested,
symptoms.11
its
injury
not the
or
tively
“impair-
“injury”
because
important
distinction
An
is “1.
meanings.
“injury”
different
ment” have
A
or other
2. wound
person....
of or to a
Damage
Dictionary,
damage.”
Heritage
The American
specific
(1982).
is the
“Impairment”
Edition
College
Second
Third New Inter-
impaired,” Webster’s
being
“state of
means
(1966),
“impaired”
Dictionary
and to be
national
or “func-
“weakened, diminished,
damaged”
or
being
Web-
Random House
inadequately,”
tioning poorly
(1998).
definitions
These
Unabridged Dictionary
ster’s
damage or
an
is the actual
injury
that while
show
to the effect of
wound,
generally relates
“im-
considering an
Accordingly, when
damage.
themselves,
injuries
the focus “is not on the
pairment,”
body func-
affected a
injuries
particular
but how the
DiFranco,
Mich at 67.
tion.”
Further,
judicial
interpretation
pre-existing
plain
manifested” is consistent with
“objectively
this
Cassidy,
statute.
later-adopted
language
threshold
the serious
explained
Court
alone,
suffering
but also
by pain
met
was not
functioning of the
“injuries that affect the
required
i.e.,
injuries.” Cassidy,
manifested
“objectively
body,”
words,
defined
Cassidy
505. In other
415 Mich at
gone beyond
Appeals
Accordingly,
decisions that have
the Court of
“objec
imposed
language
an extra-textual
plain
of the statute and
legisla
tively
injury” requirement,
in clear
contravention
manifested
intent,
they
are inconsistent
are overruled to the extent
tive
289, 305;
Bowman,
App
See, e.g.,
opinion.
Netter
(2006)
‘objectively
meaning
(holding
that “the current
NW2d
capable
injury
requires
must be
.
that a
manifested’ ..
*15
verification”).
objective
guage was partially consistent plain with the language of the statute. It addressed this briefly, issue stating that “[sjubjective complaints that are not medi- cally documented are insufficient establish [to that an is objectively Kreiner, manifested].” Mich at 132. To the extent that this is inconsistent with DiFranco’s statement that medical testimony will gen- erally required to establish an impairment, it is at odds with the legislative intent expressed by the adop- tion of the “objectively manifested” language from Thus, DiFranco and Cassidy. to the extent that Kreiner could be read to always require documentation, medical it goes beyond the legislative intent expressed in the plain text, statutory wrongly decided.
b. OF AN IMPORTANTBODYFUNCTION If there an objectively is manifested impairment of body function, the next question is whether im- paired body function is “important.” The common meaning of this phrase expressed in the unambiguous statutory language, although reference a dictionary and limited reference to Cassidy helpful. 12Although Legislature plainly rejected injury that it is the objectively manifested, opposed should be impairment, to the previous judicial “objectively construction manifested” is still relevant. *16 v Carrier Opinion op the Court adjective “impor- definition of
The relevant signifi- having great “[m]arked value, or tant” is Heritage consequence.” Dic- The American cance, or (1982). College tionary, also Edition See Second Dictionary Unabridged House Webster’s Random part (1998), “important” defining as “of in relevant consequence,” great significance “matter- or much or body large.” “prominent ing Whether a much,” or “significance,” great “value,” or “conse- function has person. vary depending quence” There- on the will inquiry inherently subjective prong fore, an this is case-by-case basis, because decided on a that must be body may most function for to be a trivial seem what subjectively important people may some, de- be relationship pending that function to on the person’s life. origi- language body “important function” Cassidy,
nally adopted
the Court stated
where
body
any
“important” body
function
function is not
an
body function.
not refer to the entire
but also does
pre-existing judicial
Cassidy,
This
Opinion op the Court
Kreiner,
function.”
If,
c. THAT THE AFFECTS PERSON’S GENERAL ABILITY TO LEAD HIS OR HER NORMAL LIFE if Finally, injured person has suffered an objec- tively manifested body function, that body function is important to that person, then the court must determine whether the impairment “affects *17 the person’s general ability to lead his or her normal life.” The common of meaning phrase this is expressed by the unambiguous statutory language, and its inter- pretation is aided by reference to a dictionary, reading the phrase within statutory context, its and limited reference to Cassidy. with,
To begin the verb “affect” is defined as “[t]o have on; influence bring about a change in.” The American (1982). Heritage Dictionary, Second College Edition An “ability” quality “[t]he of being able to do something,” id., and “able” is defined as “having power, skill, sufficient or resources to accomplish an object,” Merriam-Webster Online Dictionary <http://www.merriam-webster.com> (accessed 2010). May 27, adjective “general” means: Relating to, 1. with, applicable concerned or to the every
whole or
member of
category.
a class or
Affecting
2.
or
characteristic
involved;
prevalent:
those
general
a
Being
discontent. 3.
usually
case;
true or
applicable in most instances but not all. 4. a. Not limited in
area,
scope,
application:
or
general
rule. b.
.as
Not limited
things: general
to one class of
Involving only
studies. 5.
main
something
features of
particu-
rather than details or
case-by-case inquiry.
Kreiner
The Kreiner,
lars. 6. or (1982).] College tage Dictionary, Second Edition irrelevant, and the first obviously The sixth definition in this not make sense “general” does definition ability to live his or “whole” person’s context because a complete surely not affected short her normal life is which is accounted incapacitation, and mental physical The other threshold: death. statutory in a different same definitions, however, convey or less more one not refer to “general” does meaning: but, at least part thing, or specific particular detail Thus, these definitions illustrate some of it. parts to lead his or “general ability” the person’s to “affect” person’s influence some of the her normal life is to skill, i.e., to lead a power person’s capacity, or normal life. of “to lead his or question meaning
The next
is the
context,
“lead,”
is best
her normal life.” The verb
in this
The American
pass
go through;
defined as
live.”
“[t]o
(1982).
Edition
Heritage Dictionary,
College
Second
definitions, some of
Although
many
the verb “lead” has
nuances, this definition is the most
which have similar
in the context of
expressly applies
relevant because
Indeed, other dictionaries
leading
type
a certain
of life.
context,
with the same
provide a similar definition
*18
“life”
Similarly,
as an
using
“type
example.15
a
of life”
references
meanings,
specifically
but one
multiple
life,
which is
leading
particular type
the context of
a
led a
Id. Other
living:
good
“[a] manner of
life.”
mental,
similar, such as
physical,
“[t]he
definitions are
(1998),
Dictionary
Unabridged
defin
Webster’s
See Random House
etc.):
(time, life,
life,”
pass
ing
go through
to lead a
“lead” as “to
or
full
(1966),
Dictionary
defining it
International
and Webster’s Third New
(life
time): PASS,
through
period
go
UVECthere he
“to
or some other
led a
very peaceful existences”
Opinion of the Court spiritual experiences that constitute a person’s existence,” or “[h]uman existence or activity gen- eral.” Id. Given the contextual examples used in the dictionary, understanding the common of “to lead his or live, life, her normal life” is to pass in his or her normal manner of living.
Therefore, the plain text of the statute and these definitions demonstrate that the common understand- ing of to “affect the person’s ability to lead his or her normal life” is to have an influence on some of the person’s to capacity live his or her normal manner of By living. modifying “normal life” her,” with “his or Legislature indicated that this requires subjective, a person- and fact-specific inquiry that must be decided on a case-by-case basis. Determining the effect or influ- ence that has had on a ability to lead a normal life necessarily requires a comparison of the plaintiffs life before and after the incident.
There are several important points note, however, regard First, this comparison. the statute merely requires person’s a general ability to lead his or her normal life has been affected, not destroyed. Thus, courts should consider only not whether impairment has led person completely cease pre-incident activity or lifestyle element, but also whether, although person is able to lead his or her pre-incident life, normal person’s general ability to do so was nonetheless affected.
Second, and relatedly, “general” modifies “ability,” not “affect” or “normal Thus, life.” the plain language of the statute requires that some person’s ability to live his or her normal manner of living has affected, been not that some of the person’s normal manner of living has itself been Thus, affected. while the extent person’s to which a general ability to live his *19 203 Carrier Opinion of the Court or her normal life an impairment is affected is undoubtedly related to what the normal man- person’s is, ner of living there is no minimum to quantitative of percentage person’s a normal manner of living that must be affected.
Third, and finally, the statute does an not create express temporal requirement as to how an long impair- ment must last order to have effect on “the general person’s ability to her live his or normal life.” with, To begin there is no such requirement in the plain 500.3135(1) language of the Further, statute. MCL provides that liability threshold for met “if injured person death, has suffered impairment serious of body function, or permanent disfigurement.” serious While the Legislature required that a “serious disfig- urement” be did “permanent,” impose not the same restriction on a “serious of impairment body function.” to Finally, the extent that prong’s language this reflects legislative adopt intent to this portion of Cassidy measure,16 some Cassidy rejected a expressly require- ment permanency impairment meet the serious threshold. 415 Cassidy, Mich at (noting 505-506 bones, “two broken days hospitalization, months of wearing during dizzy casts which spells further his mobility, affected and at least minor residual effect years one and one-half later are sufficiently serious to meet requirement the threshold of serious function”). of body
Despite the fact that the language the statute was plain, the significantly Kreiner deviated from 16 Although prong’s Cassidy, some this text derived from Legislature important Cassidy made modifications. The Court stated injury that the serious threshold “looks of an effect on person’s general life,” ability Cassidy, live a normal 415 Mich at Legislature rejected and the “a” standard for normal life objective. Mich Opinion of the Court To interpretation prong. statutory its text interpre- in its erred with, the Kreiner
begin
*20
person’s general
affects the
the
“that
phrase
tation of
First,
selectively quoted
it
ability”
reasons.
for two
sup-
that best
dictionary
“general”
definitions of
the
for this
gave
It
one definition
its conclusions.
ported
“
total;
which
word,
whole;
comprehends
the
‘the
a
all,
part;
general proposition,
to
or the chief
or relates
is,
fact,
etc.; opposed
particular;
to
principle,
—
”
relied on definitions of
special,’
to
and then
opposed
“general”
conclude that
general”
“generally”
“in
”
“
Kreiner, 471
at
‘for the most
Mich
part.’
means
Web-
Dictionary.
New International
quoting Webster’s
ster’s,
adjective
the
however, offers 10 definitions of
are similar
definitions
“general,” many
which
Heritage Dictionary.
from The American
quoted above
definitions, the
Moreover,
majority
of these 10
chose
above,
restrictive,
though,
even
as discussed
it
most
And,
in this
even
does
make the most sense
context.
not
then,
majority
Kreiner
to other forms
looked
Second,
“[t]he
the Kreiner
stated that
word.
in
starting point
analyzing
impairment
whether
i.e., overall,
person’s ‘general,’
ability
a
lead
affects
how his life has
identifying
his normal
life should be
affected,
much,
Kreiner,
long.”
how
and for how
been
Although
portions
Beyond point, however, Kreiner astray gave went interpreta- statute labored tion meanings inconsistent with common and common sense. Applying “lead,” its chosen definition of majority concluded that “the effect of the *21 on the course of a plaintiffs entire normal life be must considered,” and if trajectory “the course or plaintiffs normal life not affected, has been then the ‘general ability’ lead his normal life not been affected. . .” Kreiner, . at 131. words, other the Kreiner held that the “com- mon of meaning” whether an has affected “the person’s general ability to lead or his her normal life” is whether it has affected the person’s general ability to conduct the course or trajectory of his or her entire normal life. This “common meaning” quite different from the actual statutory text in form and substance. Significantly, the majority’s Kreiner inter- pretation of the interjects statute two terms that are not included in the dictionary statute the or definitions the of relevant statutory language: “trajectory” “entire.” Both terms ambiguity origi- create the where none, nal statutory text had and the Kreiner majority thus erred by selectively defining the used in words statutory definitions of away terms in order to shift 487 Mich Opinion the of Court words the that the have meaning from the common 500.3135(7). of MCL context addition, is a “trajectory” synonym to the first while As as, example, is defined for “course” for “course” when movement,” The American continuing direction of “[t]he (1982), it Edition College Second Heritage Dictionary, definition “course” that makes not for the synonym a ability a to lead defining “general context of sense “conduct” is used this his her life.” When with or normal “course,” meaning it very definition of has the different of; plain language control.” Id. The “[t]o direct the course Legislature’s suggest not of the statute does of an on the intent was to address effect life, their to control the direction of person’s ability in his ability to live or opposed person’s its effect on majority managed Yet the living. her normal manner of inserting syn- “trajectory” as imply meaning “course,” shifting meaning of onym thereby reading “course” the most natural contextual from “trajectory” suggestion The use of word. to mean “the direction of “course” should understood movement,” “a continuing instead of mode action or behavior,” per- ambiguity implying creates sense with, and does not make manence that is inconsistent of, statutory language. context the actual sense addition, modified the As to the second “his her life” “en- statutory language normal tire,” apparently created out of a modification that had air,17thereby ambiguity not creating thin in the text. The word “life” previously statutory existed *22 general” respect define “in as “with to the The Kreiner did “general Kreiner, entirety” interpreting ability.” at 130. when But, assuming proper phrase use “in that it is to the definition even Legislature general general” adjective “general,” to to define the used ability, modify life. not McCormick v Carrier Opinion of the Court meaning. noted, has more than one As it can refer to the be meaning commonly would understood apply in the the statutory context of is language, which “a manner It living.” also can to “[t]he refer interval of death; time between birth lifetime.” The American (1982). Heritage Dictionary, Second College Edition significant: differences are whereas the first mean- ing day-to-day process living, refers the second ais finite that encompasses measure all of time on one’s Although earth. “entire” could modify either meaning “life,” it probably is more commonly modify used to Thus, by the second. inserting “entire,” the Kreiner majority created an ambiguity that not in the present original statutory second, text because the finite defini- tion of “life” does not make sense the context of the actual statutory It language. would be unusual refer to someone’s general ability to lead his or her normal “lifetime” or “interval of time life between and death.” best, At this would seem to refer to an effect on the person’s life expectancy, but this would subjec- not tive inquiry, and is an impossible leap any from common understanding statutory language.18At a minimum, using modifier “entire” reinforces general sense of permanence also created insertion of “trajectory,” which, but as explained, is not in statutory actual text. Because the Kreiner majority created ambiguity none, where there was and crafted a statutory is, effect, interpretation that a judicially cards, constructed house of we it incorrectly hold that 500.3135(7). interpreted the third prong MCL The Kreiner majority aggravated error, departed even more from dramatically statutory text, by providing extra-textual list “nonexhaustive
18It is also to some extent accounted for in another threshold in MCL
500.3135(1): death.
*23
208 Opinion of the Court compare the be used to objective of factors” to “(a) factors are: lifestyle. These post-incident and pre- (b) type the the impairment, and extent of the nature (c) the duration required, of treatment length and (d) any impairment, of residual impairment, the extent (e) Kreiner, recovery.” for eventual prognosis the unambiguously Legislature at 133.19 function,” and body of the “serious defined language the of apply plain Court is to the role of this of judicially it with a list definition, improve that not in the necessarily factors that are not based created fact, at least some of the Kreiner statute’s text. statutory in the text factors have no basis majority’s its extra-textual and are instead derived from lan- statutory additions to the actual extra-definitional and serve reinforce guage, “trajectory,” “entire” the third ambiguity interpretation prong the that its of created, given expressly that all of the factors especially the component. a Because temporal include impliedly majority Kreiner are not based adopted by factors the text, is to the statutory apply and this Court’s role it, statutory language, improve not we unambiguous them.20 by adopting hold that the erred correctly object employing that I do not to courts The dissent observes many certainly object, applying circumstances. I factors when statutes however, doing only perverts statutory so manner not to courts in a with, unsupported by, legislative language but is also and inconsistent Kreiner expressed by statutory language, did. intent interpretation Indeed, potential majority’s for the Kreiner to be the statute has been realized read in a manner inconsistent with Schulte, Gagne example, unpublished in lower court decisions. For February opinion Appeals, per curiam of the of issued Court (Docket 264788), Appeals a had held that not No. Court though her knee function even suffered serious injury surgery her movement for a resulted in and severe restrictions on accident, ability year continuing indefinite restrictions on her after the job pre-accident partici perform in which she her and other activities accident, stability permanent pated loss in her knee and a before McCormick v Carrier Opinion of the Court In summary, majority’s interpretation Kreiner prong departed the third from the idea court casually anything “should not read into unambiguous statute that is not within the manifest intent of the Legislature as derived from the words the statute.” Kreiner, J., dissenting). 471 Mich at (CAVANAGH, *24 Indeed, dissent, as I remarked in the Kreiner majority’s “interpretation” plain of the of MCL language a “chilling reminder that activism comes 500.3135(7) in guises, all including so-called Id. textualism.” There- fore, we hold that the Kreiner majority’s interpretation of this prong, including the of factors, list non-exhaustive not based in the statute’s text and is incorrect.
3. STAREDECISIS: SHOULD KREINER BE OVERRULED? To the extent that the Kreiner majority’s interpreta- tion of the statute was inconsistent with the foregoing approach, and from the departed legislative intent expressed in the unambiguous statute, language the we hold it that was decided. wrongly Given this conclu- sion, question the is whether it should be overruled. We hold that it be.21 should decisis,
Under the doctrine of stare
“principles of law
deliberately examined
and decided
a court of compe-
and an
risk
increased
of osteoarthritis. The
reasoned that these
impairments were insufficient meet
might
the threshold because she
someday be able to resume some activities with a knee brace and “there
period
is no evidence that this
of decreased function affected her life so
extensively
trajectory
that it
the
altered
or course of her entire normal
Id.,
op
unpub
Indeed,
majority’s
life.”
reasoning
at 2.
seemed to
plaintiffs ability
consider
whether
to control
direction
her
altered,
ability
entire life had been
rather than her
to live her
life in
manner, given
normal
despite
found the threshold was not met
continuing
movement,
evidence that
had
restrictions on
activities,
work,
medically
long-term damage.
and
and
documented
21
protestations
The dissenters’ stare decisis
should taste like
ashes
decisis,
principles
they
their
To
paid
mouths.
stare
which
Mich 180
487
Opinion of the Court
lightly departed.” Brown
should not be
jurisdiction
tent
354, 365;
Comm, Mich
550 NW2d
Co
v Manistee
Rd
omitted).
(citations
(1996)
quotation marks
“
arbitrary discretion
Indeed, in order to
‘avoid an
should
courts,
indispensable
[courts]
it is
serve
precedents
rules and
which
bound down
strict
duty
point
every particular
out their
define and
v Magna
before them ....’” Petersen
case that comes
(2009)
300, 314-315;
In determining whether overruled, Kreiner should be I find several particularly evaluative criteria relevant: (1) “whether rule has proven to be intolerable (2) because it defies practical workability,” “whether reliance on the rule is overruling such that it would (3) a special cause and hardship inequity,” “whether upholding rule likely result serious detri- (4) prejudicial interests,” ment to public “whether the prior decision largely abrupt unex- plained departure Petersen, from precedent.” at 320. As here, on applied balance, these criteria weigh favor overturning Kreiner.
The first weighs criterion heavily favor overrul- ing Kreiner because the majority’s departure Kreiner 500.3135(7) the plain from language MCL defies practical workability. above, As discussed the majority took unambiguous statutory and, through text linguis- tic gymnastics, contorted it confusing into a and am- Kelly Petersen, provided Chief Justice a non-exhaustive list of may considered, determinative, criteria be but none of the criteria is they Petersen, need if evaluated See relevant. Mich at *26 320.
212
487
180
Mich
Opinion
the Court
of
of MCL
arising out
litigation
test. Appellate
biguous
500.3135(7)
Kreiner23 and
increased since
greatly
with,
the
begin
To
lower
in confusion.
has resulted
has led to inconsistent
of Kreiner
application
courts’
similarly
statutory language,
interpretation of
being
differently
different
treated
situated
Further,
interpreted
have
Kreiner
some courts
courts.24
than that in
higher
that is
having
as
created a threshold
the Kreiner
DiFranco, primarily by reading
Cassidy
effectively
to
of the statute
majority’s interpretation
discussed,
As
permanency requirement.25
a
create
intent
contrary
legislative
expressed
to the
the Kreiner
plain language of the statute. Because
of
the third
MCL
interpretation
prong
of
majority’s
23
decided,
years
there have been three
In the six
since Kreiner was
500.3135(7)
many
citing
Appeals
there
of
cases
MCL
times as
Court
years
was enacted and
in the nine
between when the amendment
were
years
In the nine
between when
amendment
Kreiner
decided.
decided, only
Appeals
of
cases
effective and Kreiner was
86 Court
became
500.3135(7).
27, 2010,
May
years
MCL
As of
the six
since
cited
issued,
Appeals
been 254
of
cases
Kreiner decision was
there have
Court
500.3135(7).
citing MCL
Morris,
per
example,
unpublished opinion
Luther v
curiam of
For
(Docket
18,
244483),
Appeals,
January
No.
issued
Court
plaintiff
a
held that the
had
serious
Court
suffered
days
a
elbow
her to
function where dislocated
caused
miss 52
work
significantly
ability
perform daily personal
her
interfered with
to
tasks
while,
couple of
for
but
life returned
normal within a
months
her
contrast,
Martinez, unpublished
accident. In
in Guevara
after the
(Docket
May 24,
opinion per
Appeals,
curiam of the Court
issued
260387),
held that there was no serious
where
No.
Court
right
and a torn anterior
suffered a dislocated
shoulder
ability
perform daily
significantly
cuff that
interfered with his
rotator
continuing
personal
couple
prevented
him from
tasks
months
part-time
during
surgery
work as a
construction worker
at least
multiple months
The outcomes in these cases are
of rehabilitation.
difficult
reconcile.
Schulte,
opinion summarizing Gagne v
See footnote 20 of this
February
opinion per
Appeals,
unpublished
curiam of the Court of
issued
(Docket
264788).
No.
*27
Carrier
Opinion of the Court
500.3135(7) has created ambiguity where there was
none,
confusion,
litigation
increased
the first
weighs heavily
overruling
factor
in favor of
Kreiner.
Second, correcting the errors in the Kreiner majority’s
500.3135(7)
interpretation
present
of MCL
would not
interests,
undue hardship to reliance
and this factor
weighs
overruhng
in favor of
Kreiner. As this Court has
when
a similar
explained
evaluating
past,
factor
“the
previous
Court must ask whether the
decision has
embedded,
fundamental,
become so
so accepted, so
to
everyone’s expectations that to
it would
change
produce
just readjustments,
practical
not
but
real-world disloca-
Detroit,
439, 466;
tions.” Robinson v
613 NW2d
(2000).
It further stated that this factor
to
applies
overruled,
if
cases that
“even if they
wrongfully
were
decided, would
at
produce chaos.” Id.
466 n 26. Kreiner is
embedded,
not “so”
accepted, or fundamental to expecta-
tions that chaos
overruhng
will result from
it.
begin
To
with, Kreiner
only
and,
was decided
six years ago,
it
while
was the first opinion from this Court
MCL
interpreting
500.3135(7),
contrary
it
the plain
text of the
statute,
in place
which had been
since 1995. As the
majority explained,
Robinson
normally
on
people
rely
of
words
the statute itself when looking
guidance
for
on
how to direct
Robinson,
their actions.
Opinion of the Court accidents, vehicle motor involves generally statute and the average driver credibility think that strains have altered their behavior party future average injured on Kreiner. in reliance interest, criterion, public on the third the effect overruling Although there Kreiner. weighs
also favor regarding on sides costs policy arguments both may a more or less difficult threshold having and benefits of 500.3135, recovery interpretation MCL our under text than that in this case is truer to statute’s statute thus, and, interpretation our most the Kreiner majority, *28 by Legisla- the balance struck closely policy reflects the contrast, Kreiner the balance from that altered ture.26 by imposing the extra-textual by Legislature intended result, threshold, and, as it is the meeting burdens to to overruling Kreiner restore the argue difficult to that public hurt the by Legislature intended the would balance it). (or affirming Kreiner serves interest that Kreiner the criterion is neutral. was Finally, fourth provide from but it did abrupt change precedent, not an of the that was not obvious interpretation statute text. from the statute’s criteria, hold that of these evaluative we
On the basis be overruled. Kreiner should conducting significant amount time what is The dissent devotes a of essentially analysis hypothesizing policy about the disastrous effects industry and, thus, opinion the conclud that this will have on insurance compromise general ing undoing legislative the the that we are legislative cognizant backdrop I am of the the no-fault act. While compromise, is I am less than the dissent this Court’s role convinced plain independent policy analysis to whether conduct an determine years adopted Legislature, language after the of an amendment originally adopted, is inconsistent with the overall act’s no-fault act was be, arguendo I general purposes. assuming it could do not Even regarding general purpose act’s that broad statements believe trump expressed Legislature in the adoption the intent in 1973 language plain of a later amendment act. Carrier
Opinion Court 4. SUMMARY OF LEGISLATIVE TEST On the the foregoing, basis of the proper interpreta- unambiguous tion the clear and language in MCL following 500.3135 creates test. begin with,
To the court should determine whether is a dispute there factual regarding the nature and the so, extent of person’s injuries and, if whether the is dispute determining material to whether serious body function threshold met. MCL 500.3135(2) (a)(¿) (ii).27 If there is no factual dispute, or no material factual then dispute, whether the thresh- old met is a question of law for the court. Id.
If the may court decide the issue as a matter law, should next determine whether the serious threshold has been crossed. unambiguous language 500.3135(7) of MCL provides three prongs that are necessary to establish a body “serious impairment of (1) function”: an objectively manifested impairment (observable or perceivable from actual or symptoms conditions) (2) (a anof important body function value, significance, function of or consequence to the (3) injured person) that affects the person’s general (influences ability lead or her his normal life some of the plaintiffs to live in capacity his her normal *29 manner of living).
The analysis serious impairment inherently is fact- and circumstance-specific and must be on conducted a case- by-case basis. stated dissent, As in the Kreiner “[t]he 27 As discussed in footnotes 7 and 8 of this opinion, provision may 2.116(C)(10) conflict MCR certain cases. If it unconstitutionally 500.3135(2) then a court should does, MCL to the extent that apply 2.116(0(10). it is consistent with MCR We do not reach this issue today, however, because there is no material factual over fact dispute any determining to whether necessary the serious has threshold impairment been met. MICH Opinion op the Court is important what is to one
Legislature recognized that
may be devas-
all[;]
impairment
to
a brief
not important
have
impairment may
a
permanent
near
tating whereas
J.,
Kreiner,
C. OF MCL 500.3135 APPLICATION case, plaintiff facts we that has Under the of this hold as a matter of met threshold impairment the serious law. with, no dispute there is factual begin
To serious determining impair- material whether parties dispute The do not ment threshold met. ankle, re- completely plaintiff suffered broken month, on ankle for a bearing weight stricted from his surgeries period over a 10-month and underwent two do parties multiple physical therapy. months of extent continues to suffer dispute to which and the for increased potential a residual arthritis. Plaintiff susceptibility degenerative basis for physical at least some evidence of provided pain suffering,28 but subjective his complaints persuasive there is evi- disputes defendant whether subjective com- impairment beyond plaintiffs dence of dispute significant This is not or essential plaints. threshold whether the serious determining range reported plaintiffs motion in his ankle is not The FCEs limits, reports suggested at MRI and two doctors’ within normal and the scarring damage degenerative around least tissue some left ankle. *30 217 McCormick v Carrier Opinion of the Court case, however, met in this because has not alleged that the residual to impairment, the extent that it exists, continues affect general ability to his to lead his pre-incident life,”29 “normal third of the prong analysis. Moreover, is not necessary to establish Therefore, first two prongs. is not material dispute prevent does not this Court from deciding whether the threshold is met as a of matter law MCL under 500.3135(2)(a).
The other facts material to determining whether the serious threshold is met are undis- also puted.30 incident, Before the plaintiffs “normal life” con- sisted primarily working of 60 hours a week as medium- duty truck loader. Plaintiff also frequently fished spring golfer. summer and was a weekend After the incident, plaintiff was unable to to at return work for least 14 months did not return 19 for months. He never original returned to his as a job medium-duty loader, truck but he suffered pay no loss in change job. because He was able to fish at pre-incident levels spring 2006 and is able to care take at personal his needs same level as before the allegation incident. There is no the impairment function has affected his relationship with his significant other other qualitative aspects of his life.
Next, in light of the lack of a dispute factual that is material determining met, whether the threshold is “painful, Plaintiff stated that his life is but normal.” He does not allege any significant residual ability has a effect on his participate enjoy in or activities to the extent he could before the accident. disputed If there had been other were facts that material determination, question we would have to reach the whether MCL 500.3135(2)(a) requires to the that it unconstitutional extent court to disputed decide material facts as a matter See of law. footnote 7 of this opinion. Mich Opinion the Court should decide 500.3135(2)(a), this Court MCL
under serious suffered a whether plaintiff a matter law *31 of prongs under the three body function impairment of 500.3135(7). MCL has shown plaintiff the first regard prong, to
With function. body of manifested impairment objectively has evi- that plaintiff presented dispute There no and actual suffered a broken ankle dence he per- would conditions that someone else symptoms or functions, walking, body such as as impairing ceive lifting Even crouching, climbing, weight. and incident, report an FCE observed months after the inhibited range a reduced of motion pain ankle and this body Thus, has satisfied plaintiff these functions. prong. regard the second prong, impaired
With to testimony His important plaintiff. functions were to and other being perform to walk establishes that unable ability to his to work. consequence functions of were 500.3135(7) Thus, of is met. prong the second MCL third case is whether the The next question met, hold shown that plaintiff but we prong lead his general ability affected his life it some of capacity normal because influenced his normal, living. manner of Before pre-incident live his manner con- incident, living normal of plaintiffs week, primarily working, sisted of hours secondarily fishing golf- hobbies of enjoying his incident, After the at least some of ing. Specifically, to live in this manner was affected. capacity incident, not bear for a month after could surgeries on ankle. underwent weight his left He two 10 months and months period multiple over work, Moreover, capacity his physical therapy. life,” “normal was part pre-incident central of his McCormick v Carrier Opinion of the Court affected.31Whereas before the incident he most of spent working, his time after the he incident was unable to perform necessary job functions for his for at least months, and he did return not to work for 19 months.32 facts, On the basis these we conclude that some plaintiffs capacity to live his pre-incident manner of living affected, the third MCL prong of 500.3135(7) is satisfied.33 500.3135(7) all
Because three of MCL prongs are satisfied, hold, law, we as a matter of that plaintiff has met the serious threshold requirement 500.3135(1). under MCL
D.
TO THE
RESPONSE
DISSENT
Despite the
length,
provides very
dissent’s
little
*32
or
disagreement
statutory
substantive
criticism of the
in
interpretation presented
very
this
and
little
opinion
response to our criticisms of the statutory interpreta-
tion in Kreiner. Where the
does actually
dissent
address
the
opinion,
substance of the
its criticisms are often
31
noted,
As
it is unclear from the
the
record
extent to
the
which
plaintiffs ability
year
affected
to fish
the first
after the
ability golf
year
incident,
incident or his
to
in the first
a half
and
after the
actually
or the extent to which
activity
he
either
undertook
those
periods.
significant
plaintiffs job
It
changed,
though
could be
that
even
same,
pay
his
suggesting
is the
but there is no evidence
that this was an
Therefore,
impairment.
effect of
this fact is not relevant to the “normal
inquiry
life”
here.
analysis
plaintiffs pre-
post-incident
Our
focuses on
and
activities
participate
and the extent to which he
able
to
in them after the
incident because those are the facts in the record. The facts that the
parties
developing
were,
doubt,
considered relevant in
the record
no
majority’s
influenced
the Kreiner
erroneous deviation from the
statutory
however,
language.
noted,
many
As
other considerations could
typically
determining
he relevant
to
how an
affects a
person’s ability
pre-incident
living.
to live in
her
his or
normal
manner
based not on
misunderstandings
but,
instead, on the dissent’s
holdings.
of those
overgeneralizations
majority
that the
complains
For
the dissent
example,
result,
in DiFranco.34 As
my opinion
“resuscitate[s]”
old
of DiFranco and
the dissent resuscitates
criticisms
recognize
Legis-
the
majority
failing
attacks
the
intent,
legislative
in the statute’s
expressed
lature’s
As is
history,
Cassidy.35
DiFranco in favor
reject
however, this
analysis,
opinion
in the
plainly evident
statute,
faithfully
the text of the
even where
applies
opinion
DiFranco. The
text is inconsistent with
Legislature’s
Cassidy
fully
adoption
recognizes
so
Legislature indicated
intent
to do
where the
Di-
and “resuscitates”
through the text
statute
where, similarly,
places
Franco
the narrow
intent
statutory
legislative
text indicates
to do so.36
on
Additionally,
majority’s
the dissent’s comments
history
lack of
are ill-founded on two
legislative
use of
I
First, contrary
levels.
to the dissent’s assertion that
legislative
his-
questioned
utility”
have
[the]
“never
no
reason” not to use it
tory
principled
that “there is
case,
repeatedly
legislative
in this
I
stated that
have
reaching
only explanation
I
can discover for
dissent’s
essentially
is its baseless accusation that
conclusion
me, however,
reading
prong
It
unclear
out of
statute.
third
statute,
applying
plain
reading
text of the
instead of
how
enhancing
extending
through
the statute
creative use of a thesaurus
factors,
equate
reading
language
out of
and extra-textual
could
the statute.
supposedly reviving
*33
Interestingly,
criticizing
while
for
DiFranco,
going
enough
also
for not
far
in its
the dissent
criticizes us
adopting
revival
the factors that I used DiFranco.
not
36
actually
appears
are
It
the dissent
not
believe that we
that
itself does
erroneously,
DiFranco, given
vigorously,
resuscitating
that
it so
albeit
today
argues
only
that
difference
our decision
and Kreiner
between
temporal
adopted
requirements.
that Kreiner
McCormick v Carrier
221
Opinion op
Court
history
should
be used
interpret
to
a statute when
v
See,
e.g., People Gard
statutory
language
ambiguous.
(2008)
ner,
41;
(CAVANAGH,
482
J.,
Mich
753
78
NW2d
Detroit,
v
dissenting); Bukowski
268;
478 Mich
732 NW2d
(2007) (CAVANAGH,J.,
concurring); Lansing Mayor v
75
Comm,
Pub Serv
154, 174;
470 Mich
bling” to the con- dissent’s statements 1995. The December trary are, based on its mistaken character- again, largely resuscitating DiFranco majority opinion ization of and ignoring Cassidy. majority that dissent also states repeatedly are “wholly that considerations
opinion temporal holds threshold, to the serious largely irrelevant” and, significant energy a amount accordingly, spends why considerations are relevant explaining temporal met holding that the threshold is accusing general ability if to lead his normal life has “plaintiffs single in time....” been for a moment affected even cries, no simply to the there is basis Contrary dissent’s that that analysis concluding temporal our we hold momentary impair- are or that a considerations irrelevant that opinion merely notes there ment is sufficient. This requirement in the text of the express temporal no specific rejects attempts Kreiner’s strained to insert statute and requirement a into the essentially permanency what was The dissent’s mistaken characterizations of statute.39 than, like nothing this more Kreiner amount to opinion itself, attempt parties another distract courts yet from actual text of MCL 500.3135.
IV CONCLUSION that should be overruled because the We hold Kreiner MCL de- majority’s interpretation Kreiner 500.3135 unambiguous clear and text. parted from statute’s 39 Indeed, blindly concluding the dissent is so intent on rejecting temporal must be considerations it fails to discovery majority’s hypocrisy triumphant consider that its 500.3135(2) application referencing periods time in our of MCL holding nothing of the fact are not more than reflection that we temporal are irrelevant. considerations v Carrier Concurring Opinion Weaver, J. Applying the unambiguous statutory language, we hold law, case, that as a matter established that he suffered serious function. Thus, we Appeals reverse Court of and remand the case to the trial court for proceedings consistent with this opinion. *35 III[B][3]) C.J., and (except for part
Kelly, Weaver and JJ., concurred with J. Hathaway, Cavanagh, I (concurring). sign J. concur in and all of
WEAVER, opinion the majority except part 111(B)(3), regarding fully stare I support decisis. the decision to overrule Fischer, (2004). 109; Kreiner v 471 Mich 683 611 NW2d I Olson, As wrote in v 1169, Jones 1173 (2008):
By importing
concept
permanency
injury
into
concept
MCL 500.3135 —a
is nowhere
referenced
(Chief
text of the statute —the
of four
Justice
Taylor
and Justices
and
Corrigan, Young,
Markman),
Fischer,
(2004),
Kreiner
actively
v
224
Mich
by
Concurring Opinion Weaver, J.
L
876, 920;
Ct
175
Comm,
130 S
Election
558 US_,_;
(2010),
2d
he said
753,
Ed
806
when
command,”
neither
“inexorable
stare decisis
558,
2472;
Texas,
S
156
[123
539 U.
577
Ct
Lawrence v.
S.
(2003), nor
mechanical
formula of ad
508]
L Ed 2d
“a
Hallock,
decision,” Helvering v.
309
herence
the latest
(1940)
444;
604]
L Ed
....
If
[60
U. S.
119
S Ct
84
were,
legal,
wage
segregation would
minimum
laws
unconstitutional,
could
would be
Government
wiretap ordinary
suspects
criminal
without first obtain
ing
Plessy Ferguson,
[16
v.
163 U. S.
S Ct
See
537
warrants.
1138;
(1896),
by
41
Board
256]
L Ed
overruled
Brown v.
686;
(1954);
Education,
L
[74
873]
U. S. 483
S Ct
98 Ed
347
C., 261 U.
Hospital
S.
S Ct
[43
Adkins v. Children’s
D.
394;
(1923),
Co.
785]
67 L Ed
overruled West Coast Hotel
(1937);
578;
Parrish,
[57
Justice Roberts. The dissent 12 cases been overruled dissenting may past justices months. feel this Court in the 18 While cases, by overruling amongst aggrieved 12 cases this Court those those judicial egregious examples that did some of the most of activism were by great people Michigan. harm of Those decisions were made to the justices, “majority four,” including dissenting guise under ideologies “judicial One of the such as “textualism” and traditionalism.” v Carrier 225 Concurring Opinion by Weaver, J. I with Chief Justice agree Roberts stare decisis is a and policy not an I immutable doctrine. chose not to Kelly’s sign Chief Justice lead in Petersen v opinion Corp, 300, 316-320; 484 Mich Magna NW2d (2009), because it a proposed to create standardized test Likewise, for stare decisis. I sign do not stare opinion’s decisis section in case because applies Petersen. There is no for need this Court to adopt any test regarding standardized stare decisis. fact, it an impossible task. are many There factors to when deciding consider whether or not to overrule precedent, and importance such factors often changes on a case-by-case basis. end,
In the
the consideration
stare
decisis
whether to overrule wrongly
precedent always
decided
justices,
dissenting
expressed
apparent contempt
Justice
his
Young,
the common law and common sense in his 2004 article in the Texas
Politics,
Young
Review of Law and
where Justice
stated:
Consequently,
my
I want to focus
remarks here on the embar-
presents
ought
present
rassment that the common law
—or
—to
judicial
a conscientious
traditionalist..
. .
give graphic
my feelings
subject,
To
illustration of
on the
I
drunken,
tend
to think
the common law aas
toothless ancient
relative, sprawled prominently and in a state of nature on a settee
genteel garden
in
undoubtedly
party. Grandpa’s presence
the middle of one’s
a cause of mortification to the host. But since
guests
enough
most ill-bred of
Grandpa’s presence
would be coarse
on
comment
condition,
simply try
ignore
all concerned
[Young, judicial
law,
him.
A
traditionalist
the common
confronts
(2004).]
299,
L
Texas Rev & Pol
301-302
past decade,
principal
Over the
tool used
this Court to decide
precedent
guidelines
when a
should be overruled is the set of
that was
Detroit,
463;
(2000),
laid out in Robinson v
226 Opinions Markman, J., Hathaway, J. through an applica- rule of law service includes sense, restraint, common judicial exercise of tion and justice for all. and a sense fairness — applying judicial law and serving the rule of to the sense, and a sense of fairness restraint, common hand, agree join majority opin- I with and case at is overruled. holding ion’s Kreiner I fully J. concur with Justice (concurring). HATHAWAY, I in this matter and analysis and conclusion CAVANAGH’s Fischer, 109; v 471 Mich overruling Kreiner support (2004). separately express my NW2d 611 I write Any thoughts analysis the doctrine of stare decisis. on must focus on the individual of stare decisis impact The overruling precedent.1 case and the reason for any Kreiner are overruling paramount for reasons test, special compelling justifi- articulated and the in this case. I overwhelming agree do so are cations to by Justice expressed with the well-articulated reasons I support overruling Kreiner. fully CAVANAGH, I J. dissent from (dissenting). respectfully MARKMAN, Fischer, to overrule Kreiner majority’s decision (2004). 109; The NW2d 611 no-fault act, 500.3135(1), in MCL provides automobile insurance subject liability remains to tort person “[a] ownership, loss or her noneconomic caused his maintenance, or of a motor vehicle if the use death, injured has serious person suffered function, disfigurement.” body permanent serious here is suffered issue whether “ ‘[Sjerious im- function. serious decisis, my regarding please For stare see further discussion of views my Regents Co, concurring opinion Ins Mich in Univ Mich v Titan (2010). 289, 314; 791 NW2d *38 v Carrier by Dissenting Opinion Mabkman, J. mani- objectively an function’ means body pairment that body function important of an impairment fested or her to lead his ability general the person’s affects 500.3135(7). MCL normal life.” 132-133, this Court held that at Kreiner, In affects impairment an determining in whether life, “a lead his normal ability to general plaintiffs compar- inquiry, in a multifaceted engage court should as after the accident life before and plaintiffs ing on the any aspects affected significance of well as the addition, life.” overall plaintiffs of the course factors, such as that certain Kreiner indicated in of assistance may be impairment, of the duration ability to lead general evaluating plaintiffs whether Id. at 133. life has been affected. his normal Kreiner, these factors rejecting majority The overrules wholly are temporal that considerations holding impairment an determining in whether largely irrelevant lead his normal life. ability to plaintiffs general affects the that, long as the instead holds affected, life has been to lead his normal general ability time, in the plaintiff moment single for even a apparently function.” impairment has a “serious suffered of the language the actual This conclusion is at odds with com- legislative nullifies the automobile act and no-fault I to believe that in that act. continue embodied promise decided, temporal consid- correctly Kreiner was necessary deter- relevant —indeed highly erations are —in the plaintiffs affects mining whether By nullifying normal life. ability to lead his general in concerns grounded which was compromise, legislative of minor over-compensation litigation, excessive over insurance, the availability of affordable injuries, and the legal a environment resurrect today decision will Court’s and threatens reappears hazards in each of these which system. no-fault integrity fiscal of our the continued Mich 180 Opinion Dissenting Markman, J. I Because do not believe the lower courts erred concluding this case not suffered plaintiff body function, a I affirm serious would of the judgment Appeals. Court I. FACTSAND HISTORY provides only cursory Because opinion facts, in a presentation requiring case a fact- analysis, I find necessary intensive to set forth more discussion thorough Beginning August of these facts. employed Systems, Allied *39 over he years, positions has held various with the 17, 2005, On company.1 January six approximately position months after beginning medium-duty his as a loader, plaintiff truck struck by by was a truck driven plaintiffs co-defendant, co-worker Larry Carrier, shuttling while vehicles at a General plant. Motors down, Plaintiff was knocked and the wheels of truck ankle, ran his left fracturing over his medial malleolus. Plaintiff was immediately taken and was hospital day. days later, released that same Two he underwent of a surgery implantation for device to stabilize his ankle fracture. Immediately following plaintiff surgery, was on crutches and in a for approximately boot four and, time, during weeks he was restricted from bearing weight leg. on his left Additionally, plaintiff physical underwent therapy.2 plaintiff began Allied, working Before for he installed windows. When began working Allied, trains, approxi he first for he loaded and after months, mately “utility job,” providing support six he took a to other departments began working as needed. In he as a June medium- duty truck loader. altogether long plaintiffs physical therapy actually It is not clear how deposition, plaintiffs “many lasted. he indicated that he underwent therapy. However, response months” of in his to defendant’s motion for summary disposition, plaintiff therapy. indicated that he had six weeks v Carrier by Dissenting Opinion Markman, J. surgery 21,2005, again underwent plaintiff
On October device. ankle, implanted this time to remove the on his had “healed plaintiffs that ankle surgeon reported The Allied, 5, 2005, request at nicely.” On November Drouillard, who stated Dr. Paul was examined plaintiff of no return to work with restrictions could plaintiff weeks, after for three standing walking prolonged no restric- return to work with plaintiff time could which 17, 2005, was examined plaintiff tions. On November “wound is plaintiffs his who observed that surgeon, nicely” plaintiff and that “needs to be veiy healed six weeks.” approximately seated work for 12, 2006, surgeon examined January plaintiffs On no him and cleared him to return to work with examination, plaintiff reported restrictions. At this surgeon giving his medial malleolus is not “[h]is him any pain.” surgeon plaintiff observed specific of motion no range had an “excellent returning to work for several Upon tenderness.” however, indicated that days, performing walking, such as job required, tasks that his physical ankle to crouching, caused his hurt. climbing, assignment a different request After denied, plaintiff compen- went back on workers’ sation. *40 16, 2006, March Allied to un required plaintiff
On
(FCE),
a functional
evaluation
which
dergo
capacity
all of his
plaintiff
fully perform
showed that
could not
And,
argument opposing
during plaintiffs
motion for
oral
defendant’s
summary
plaintiffs
plaintiff
disposition,
underwent
counsel claimed
therapy.
18 weeks of
physical
all-encompassing
An
is “an
term to describe the
FCE
ability
perform
activity.”
of an individual’s
to
work-related
assessment
<http://www.aota.org/
Occupational
Therapy
American
Association
(accessed
2010).
1,
Consumers/WhatisOT/WI/Facts/35117.aspx>
July
On June
plaintiff
test;
underwent an MRI
physiatrist
who reviewed the MRI
performed
follow-up examination found that there was some evi-
dence
ligamentous
injury, but he did not establish a
plan
decrease
pain because there was little
physiatrist
examination,
could do.5At this
reported that
pain
10,
his
was 6 on a scale of zero to
pain
“any movement,”
worse with
and that
nothing
20,
alleviated that pain.
On June
Dr.
Drouillard reviewed the MRI results and found that
part
pain resulting
This was due in
preexisting
to shoulder
from a
injury.
unrelated shoulder
physiatrist
A
practices physiatry,
is a medical doctor who
“a medical
specialty
injury by physical agents,
for the treatment of disease and
College Dictionary
Random House Webster’s
therapy.”
exercise
or heat
(1991).
*41
v Carrier
Dissenting Opinion Markman, J.
opinion
and that his
ankle had healed well
plaintiffs
2006,
31,
changed.
had not
May
from
thereafter,
compensation
workers’
Shortly
point, plaintiff
At
were terminated.6
benefits
On
that he could return work.
another FCE so
sought
indicated that
1, 2006,
plaintiff
the FCE
August
restric-
job demands without
perform
essential
able
experienced
that he
FCE, plaintiff reported
At this
tion.
ankle, and that there were no
in his
aching”
“occasional
in the left
symptoms
his
aggravated
“activities that
walk-
standing, prolonged
(including prolonged
ankle
level was
on a
pain
Plaintiff
that his
ing).”
reported
and,
immedi-
during
to 10
the two weeks
scale of zero
FCE,
level had been
highest pain
his
ately preceding
comple-
1.
theBy
level had been
pain
3 and his lowest
as zero.
FCE,
pain
his
level
plaintiff reported
tion of the
2006,
17 months after
16,
approximately
August
On
assigned
Allied
accident,
returned to work and
physical requirements,
different
job
him to a new
in
Plaintiff
to be
pay.
no reduction
volunteered
and with
to perform
and has been able
assigned
job,
to this other
that time.
job
his new
duties since
any
require
did not
During
recuperation, plaintiff
his
Additionally,
normal household tasks.
assistance with
have not affected
injuries
able to drive and his
he was
any way.7
in
Outside
relationship
his
with his wife
in
engage
able to
most
work, plaintiff was
January
compensation
began receiving
2005.
workers’
Plaintiff
$66,000 wages,
the difference between his
claims that he lost
Plaintiff
salary
compensation
the time he was not
his
benefits for
workers’
damages.
However,
working.
case
involves noneconomic
the instant
personal
damages
compensable
wages
and are
are economic
Lost
500.3107(l)(b),
through
benefits,
a tort
protection
MCL
insurance
and/or
losses,
against
party
excess economic
MCL
at fault to recover
claim
500.3135(3)(c).
brought
claim.
has not
a loss-of-consortium
Plaintiffs wife
On October this Court Justice appeal, although for leave to Chief application and WEAVER would have KELLY and Justices Cavanagh (2008). However, Mich 1018 granted appeal. leave to changed of this Court when Justice composition after the *43 former Chief Justice TAYLOR on Janu- replaced HATHAWAY 1, 2009, motion for ary granted plaintiffs this Court reconsideration, motion had not raised though even such (2009). Mich 851 any legal arguments. new
II. STANDARD OF REVIEW
statutory
presents
interpretation,
This case
issues of
de
v
Dep’t
Transp
which this Court reviews
novo.
(2008).
184, 190;
481 Mich
III. ANALYSIS
A. HISTORY OF
INSURANCE ACT
NO-FAULT
In
enactment of the no-fault
Michigan, before the
act,
available recourse to victims
insurance
injured company up person insurance is also entitled to recover from his own loss, i.e., years earnings person from work that the to three loss of income 500.3107(l)(b). injured. performed An would have if he had not been MCL i.e., injured “replacement” expenses, expenses person can also recover necessary reasonably obtaining ordinary incurred in services that 500.3107(l)(c). injured person performed. Fur- would otherwise have MCL ther, injured person’s an at-fault driver is still hable in tort for an excess 500.3135(3)(c). damages. economic MCL 500.3135(1) entirety, provides: In its MCL liability person subject A to tort for noneconomic loss remains maintenance, ownership, or her or use of a motor caused his death, injured person if serious vehicle suffered function, permanent disfigurement. serious *45 487 MICH Dissenting Opinion by Markman, J. dispute regarding [W]hen there is no factual the nature plaintiffs injuries, question and extent of a of serious impairment body function shall be decided as a matter of Likewise, law the court. if dispute there is a factual toas injuries, the nature and extent of a but dispute is not material to the determination whether plaintiff suffered a serious func- tion, the court shall rule as a matter of law whether the requirement... threshold [Id. has been met. 502.] at addition, In Cassidy held that the phrase “serious impairment of body function” refers “objectively injuries” manifested that impair “important body func- tions.” Id. at 504-505. Cassidy also held that “the Legislature intended objective standard that looks to injury effect of an person’s on the general ability to live normal life.” Finally, Id. at 505. Cassidy held that although “an injury need permanent not be to be serious,” “[p]ermanency is, nevertheless, relevant” be- cause injuries “[t]wo identical except perma- one is nent do differ in seriousness.” Id. at 505-506.
However, only later, four years Pickard, DiFranco v 32; (1986), NW2d 896 this Court overruled Cassidy. DiFranco held that “[i]f reasonable minds can differ as to whether the plaintiff suffered a serious impair- ment of body function, the issue must be submitted to the juiy, even if the evidentiary facts are undisputed.” Id. at 58. In addition, DiFranco held that the “impairment need not be of... an important body function,” and it is unnecessary to look to the effect of the injury on the “ ” person’s ‘general ability to live a normal life.’ Id. at 39. that, DiFranco also held although prove must a “medically injury,” identifiable this can be done on the basis of “the plaintiffs subjective complaints or the symp- toms of an injury.” Id. at 75. Finally, DiFranco held that the following factors should be considered when determin- ing whether the impairment was serious: Carrier McCormick v Opinion by Dissenting Markman, J. particular body impairment,
The extent of the length impaired, the of time function lasted, required impairment, to correct treatment any 69-70.] at [Id. other relevant factors. In amended the no-fault act. Legislature 500.3135(2)(a), pro- amended MCL which particular, vides: injured person has suffered
The issues of whether an *46 impairment body permanent or serious serious function disfigurement questions for the court if the court are of law following: finds either of (i) dispute concerning the There is no factual nature injuries. person’s extent of the (ii) concerning dispute the nature and There is a factual dispute person’s injuries, but the is not extent of the person the determination as to whether the material to impairment body perma- or a serious function suffered disfigurement. nent serious addition, Legislature impair-
In
defined “serious
mani-
body
objectively
ment of
function” to mean “an
important body
fested
of an
function
impairment
lead his
her
general ability
affects the
person’s
500.3135(7).
words,
normal
life.” MCL
In other
and,
essentially rejected DiFranco
with one
Legislature
Cassidy.12
codified
exception,
B. KREINER v FISCHER
Kreiner,
interpreted
In
this Court for the first time
definition of “serious
Legislature’s
impairment
505,
Cassidy,
required
exception
415 Mich at
That one
is that while
injury
general ability
person’s
an evaluation of “the effect of an
on the
500.3135(7)
life,”
requires an evaluation of the effect
live a normal
MCL
injury
person’s general ability
on “the
to lead his or her normal
added.)
is,
Cassidy
exclusively
(Emphasis
That
while the
test was
life.”
500.3135(7)
subjective.
objective,
partially
test is at least
the MCL
Dissenting Opinion Markman, J. “ body “generally” function.” Because means ‘for the ” part,’ “determining most Kreiner held that whether ‘generally able’ to lead his normal life requires considering plaintiff is, whether the ‘for the part’ Kreiner, most able to lead his normal life.” quoting College Mich at Random House Webster’s (1991). Dictionary addition, because “lead” means “ ” bring particular course,’ ‘to conduct or in a Kreiner held that “the effect of the on course of plaintiffs entire normal life must be considered.” Id. quoting 130-131, at Random House Webster’s Un- (2001). abridged Dictionary Therefore, Kreiner con- cluded,
[ajlthough
aspects
plaintiffs
some
of a
entire normal
life
may
interrupted
if,
impairment,
despite
those
impingements,
trajectory
plaintiffs
course or
affected,
plaintiffs
normal
life has not been
then the
“general
ability”
to lead his normal
life has not been
affected and he does not meet
the “serious
[Id.
function”
threshold.”
at 131.]
“multi-step process...
Kreiner established a
separating
statutory
out those
who meet the
*47
threshold from those
First,
who do not.” Id.
the court
dispute
must determine whether there is a factual
person
is material to the determination whether the
impairment
body
suffered a serious
function.13Sec-
important
ond, the court must determine whether an
impaired. Third,
function has been
the court must
impairment objectively
determine whether the
mani-
Finally,
fested.14
the court must determine whether the
dispute,
If there is such a
the court cannot decide the issue as a
law; however,
dispute,
matter of
if there is no such
the court can so
decide.
14 “Subjective complaints
medically
that are not
documented are insuf
Kreiner,
ficient.”
impairment,[15](d) residual the extent (e) recovery. prognosis for eventual at ent/[16] \Id. 133.] essentially agreed the dissent in Kreiner
Although objectively “an majority’s analysis language function,” important body manifested of an disagreed majority’s analysis language with the general ability “that affects the to lead his or person’s significantly regard, her normal life.” Most set forth on rejected dissent factors temporal that “time or considerations” are basis (CAVANAGH, J., Id. at 147 inappropriate considerations. dissenting).
C. MAJORITY’SNEW TEST
It
that Justice
the author-
appropriate
CAVANAGH,
DiFranco,
justice
which
ing
opinion
injury
permanent,
“While an
need not be
it must be of sufficient
life.”
at
duration to affect the course of
Id.
135.
restrictions,
“Self-imposed
opposed
physician-imposed
restric
tions,
point.”
perceived pain
at
based on real or
do not establish this
Id.
n 17.
*48
in this to sequence case, those of us dissent such wrong judiciary embodiesall when a confuses its preferences representa- people’s own with those of the Legislature. intriguing tives in the While it Justice CAVANAGH now is able to transform his dissent in majority opinion, thereby Kreiner into a resuscitate opinion in DiFranco, his earlier only this has been achieved people through Legis- after state, of this their lature, have made clear that did DiFranco not reflect ought policy just what Therefore, be the of this state. he did in Kreiner, as his dissent in Justice CAVANAGH, support, majority rejects analysis now with Kreiner’s language person’s general ability “that affects the lead turned, his or her normal worm life.” The people Legislature and never mind their what sought accomplish establishing have as the law. proceeding Before too far our into where substantive disagreements point I lie, would be remiss not to out agreement. majority,just where we First, are in largely agrees dissent, did the Kreiner with Kreiner’s analysis 500.3135(2)(a), i.e., of MCL if there is no dispute, person material factual whether a has suffered body serious function should be deter- mined the court as a matter of law.17The 17However, indicates that this statute “could unconstitu 2.116(0(10)....” tionally conflict with MCR Because I see no conflict rule, i.e., between the statute and court each allows the court to person determine as a matter lawof whether a has suffered a serious function if there are no material factual disputes, any way I do not believe statute is in unconstitutional. v Carrier Dissenting Opinion Mahkman, J. *49 lan- analysis Kreiner’s of the largely agrees also with impairment manifested of an objectively “an guage addition, majority function.”18 In body important Moreover, by majority support suggestion of its that the case cited efficiency” actually jury “promote judicial the exact stands for trials Laboratories, 1, 26; opposite proposition. See Moll v Abbott (“Both (1993) recognize and case law NW2d 816 our court rules summary regardless jury request, desirability allowing disposition, of a promotes presented are to the court. This when uncontroverted facts resources.”). that, judicial interesting efficiency preservation It is constitutionality majority acknowledges although that the of MCL 500.3135(2)(a) here, implies repeatedly that is not at issue MCL 500.3135(2)(a) thus, unconstitutional, making that “could” be it obvious 500.3135(2)(a) likely majority’s fall within the effort to MCL will also expunge jurisprudence past decade. disagree majority disputed that “the fact does not I also with the in order to be material. . . .” MCL need to be outcome determinative 500.3135(2)(a)(ii) injured person an has suffered states “whether impairment body question[] [is a] serious function ... of law for the dispute [that the] court if the court finds . .. factual ... is not person has suffered a material to the determination as to whether is, impairment “[a]bsent serious function . . . .” That genuine dispute, outcome-determinative factual the issue of threshold Blethen-Coluni, injury question is now a of law for the court.” Kern v (2000) added). 333, 341; App (emphasis Mich 612 NW2d (8th ed) Dictionary support Although the cites Black’s Law proposition disputed of its that “the fact does not need to be outcome (6th material,” Dictionary determinative in order to be ed) Black’s Law very opposite upon fact is one which states the “[m]aterial — (8th litigation depends.” Dictionary Law outcome of See also Black’s ed), “[h]aving logical which defines “material” as some connection facts,” consequential College and Random House Webster’s (1991), “likely Dictionary which defines “material” as to influence the case[.]” determination of a 18 majority “[sub The does take issue with Kreiner’s conclusion that
jective complaints
medically
that are not
documented are insufficient” to
Kreiner,
“objectively
that an
manifested.”
establish
However,
majority agrees
“plaintiffs
given
Mich at 132.
that the
establishing
physical basis for
must ‘introduce evidence
that there is a
”
DiFranco,
subjective
suffering,’ quoting
complaints
pain
their
427 Mich at
and I am uncertain what evidence other than medical
basis,”
why
“physical
such a
it is not clear
documentation would establish
also with Kreiner’s conclusion that determining whether a general ability to lead his or her normal life has been affected “necessarily requires a comparison of the plaintiffs life before and after the incident.”19 Finally, the majority agrees with Kreiner’s conclusion that permanency is not required.20
1. DiFRANCO VERSUS CASSIDY
However, this is where
agreements
our
First,
end.
the majority takes issue with Kreiner’s statement
that “the Legislature
largely rejected
DiFranco
Kreiner,
favor of Cassidy.”
[T]he modified objective partially Cassidy partially standard Thus, subjective inquiry. is to be deter- what is “normal” subjectively plaintiffs own life mined on the basis However, party. objective third once and not the life of some base, objectively it is to be determined that is fixed as in fact affects the whether ability “general to lead” that life. (a) Mich at
Nevertheless, Cassidy, that: given injury an “look[] that courts should to the effect of held (b) life”; ability to live a normal person’s general on the 39, held that courts should not DiFranco, 427 Mich at “ injury person’s ‘general to the effect of the on the look (c) ”; Legislature ability to live a normal life’ directed the courts to subsequently affirmatively general on “the injury person’s look to the effect of 500.3135(7), life,” to lead his or her normal MCL ability obviously preferred policy Legislature addition, in contrast to Cassidy to that of DiFranco. DiFranco, Legislature Cassidy, and consistent with *51 re- body function” expressly adopted “important 500.3135(7), and amended MCL MCL quirement, a serious impair- to make clear that whether 500.3135 is a of law question ment of function has occurred MCL dispute. there is a material factual unless 500.3135(2)(a). under- Thus, contrary majority’s to the hardly it is an “oversim- standably posture, defensive 487 Mich Dissenting Opinion by J. Markman, plification” Legislature to conclude that the essentially rejected DiFranco in of Cassidy.21 favor
Moreover,
Legislature’s
action of amending MCL
following
500.3135
DiFranco is an
example
legisla-
history
tive
genuine utility
the interpreta-
process.
tive
This Court has emphasized that “not all
legislative
value,”
history
equal
is of
and has specifically
noted that “[cjlearly
highest quality
is legislative
history that relates to an
Legislature
action of the
from
may
which a court
draw reasonable inferences about
the Legislature’s intent.
. . .” In re
Question,
Certified
(2003).
5;
115 n
Defendant and Attorney General as amicus cu- riae presented have the Court legislative analyses, committee reports, and other support materials to their that, in argument enacting amendments, Leg- islature intended to repudiate DiFranco and restore Cassidy, just as Kreiner held. Even the most cursory review of these documents demonstrates that defen- Attorney dant General’s reading has merit. For example, original draft of House Bill 4341 was accompanied aby memorandum from sponsor its stated that the bill’s goal was to “[reestablish the first (1) two-part Cassidy standard of: definition of ‘serious (2) body function,’ make the deter- mination of injury whether an is a serious 21 Contrary majority’s contention, very clearly to the this dissent provides language “specific, arguments” in the above substantive support of this conclusion. *52 245 v Carrier Dissenting Opinion Markman, J. rather than of (judge) of law body question of function Harold J. Representative of (jury).” fact Memorandum HB 4341 as Voorhees, original draft of enclosing introduced, 8, 1995, in defendant’s February available legisla- the House p Similarly, on 8b. appendix appeal, chronology forth the of analysis expressly set tive “re- DiFranco, that DiFranco had noting Cassidy to a tort that the bill return Cassidy and “would jected” provided by Cassidy resembling threshold 4341, HB De- Legislative Analysis, ruling....” House 18, to the Senate analysis provided cember 1995. The in the explained Financial Services Committee likewise put the bill’s that it “would description sentence first for the serious Cassidy meeting into law the standards Department function threshold.” 14,1995. 4341, February HB Analysis Commerce Bill the statements of finally, apparent And from they clearly also protest opponents bill’s Bill 4341 to be a “return to the understood House E. Henry standard . . ..” Statement of Senator Cassidy (October II, 1784 Stallings 1995 Journal of Senate D. 12,1995); Cherry, see also statement of Senator John Jr., id. at 1785. I I explained why
While on several occasions have
do
legislative history
not find all forms of
to be useful tools
see, e.g.,
Magna
in the
Petersen v
interpretative process,
(2009)
300, 381-382; 773
564
Corp, 484 Mich
NW2d
(MARKMAN, J.,
dissenting),
the author of
Thus,
their
there
opinion
questioned
utility.22
has never
22
states,
authoring justice
repeatedly
legisla
“I
stated that
have
statutory
history
interpret
used to
a statute when
tive
should
cases,
this,
language
ambiguous.” Although, in some
he has asserted
(2008)
see,
Gardner,
41;
example, People
v
482 Mich
the tools and factors to be
the
short,
effectively
judges
law are
its formulators —in
who
judicial,
wielding
legislative,
power.
are
the
not the
strength
judicial philosophy
A
committed to
critical
of a
exercising only
“judicial power”
the
constitution’s
reasonably
decision-making
clear rules of
are established
is,
essentially promises
judge
the
the
That
before
fact.
case,
parties that he or she will decide their
as with sill
others,
meaning
by attempting
the
to discern
reasonable
be done
relevant statutes or contracts and that
will
tools,
rules,
interpretation.
relying upon recognized
and
...,
contrast,
By
[majority’s] approach
under the
in which
rules,
tools,
essentially
array
and
there is
a limitless
apart
may
employed
“defining”
be
the law
from its
3. TEMPORAL CONSIDERATIONS Finally, majority rejects the non-exhaustive list of factors that Kreiner set forth for consideration evalu- ating general ability whether the lead to his normal life has been affected. The asserts that “departed statutory by pro- text, Kreiner . . . from the viding objective an extra-textual ‘nonexhaustive list of compare plaintiffs pre- factors’ post-incident lifestyle.” used to critique quite surprising
This
given
general,
is not uncommon for courts in
particular,
provide
for this Court in
“extra-textual”
interpreting
factors to be considered in
a statute that
justice
interesting
authoring
majority opinion
I find it
that the
unturned,”
“leavfing]
dictionary
regards
once chastised me for
no
opinion
dictionaries,
Raby,
People
to an
in which I cited
different
two
v
(1998)
487, 501;
J., dissenting),
456 Mich
NW2d
(Cavanagh,
and, here,
quite
he cites seven different dictionaries and still cannot
purpose.
considering
find a definition that serves his
While
relevant
dictionary
interpretation,
definitions can be a valuable tool of
majority’s generous
noteworthy
use of dictionaries here is
because
questioned
propriety
and usefulness of this tool in the
(2008) (“In
Olson,
past.
legal context,
Jones
using
dictionary
unwaveringly
legislative
determine the
intent
nothing
barely
judicial
behind a statute is
ism.”)
more than
hidden
activ
J., dissenting, joined by then-Justice
and Justice
Kelly
(Weaver,
Cavanagh).
*56
demands To best knowledge, majority members of this have never before but in the complained practice, consistency about this interpretative and of fac- application non-application hardly preoccupation majority.25 tors is this Indeed, itself, in DiFranco Justice CAVANAGH provided numerous “extra-textual” factors to be in considered determining whether a has established a seri- DiFranco, impairment body ous function. 427 Mich 69-70, at states: determining whether the func- serious, jury
tion was the should consider such factors as impairment, particular body the extent of the the function impaired, length lasted, the of time the the required impairment, any treatment to correct and other relevant factors.
Indeed,
these “extra-textual”
remarkably
factors are
“(a)
similar to the Kreiner
factors:
the nature and
(b)
impairment,
extent of the
type
length of
(c)
required,
treatment
impairment,
duration of the
(d)
(e)
any
impairment,
extent of
residual
prognosis
Kreiner,
for eventual recovery.”
471 Mich at
phrase
only
I use the
“extra-textual” factors
because this is the
phrase
However,
truth,
uses.
in
I do not believe that the
“extra-textual,”
factors articulated in Kreiner are at all
because these
directly
have been derived
from the text of the statute itself.
25Indeed,
my
Petersen,
explained
Ias
in
dissent in
484 Mich at
majority’s “interpretative” process
“picking
seems to consist of
choosing
among
array
[its]
at
discretion from
some uncertain
of tools
” (Citation
lying ‘beyond
plain language
[or contract].’
of the statute
omitted.)
problem
approach
will,
litigants
“[t]he
is that
course,
employed,
have no notice beforehand of which tools are to be
justices
themselves will not know this beforehand.” Id. The rule
gleaned
apparently
appropriate
from the instant case is
that it is
factors,
employ
only
“extra-textual”
but
where the
wishes to do
parties
majority’s inclinations,
so. The
will be made aware of the
but
after a decision has been issued.
v
Carrier
Dissenting Opinion Markman, J.
133. It not
why
justice
clear
the authoring
thought
acceptable
list
“extra-textual”
in DiFranco,
factors
but unacceptable to cite virtually the same
factors
In addition,
Kreiner.
Group City
Med
Wexford
Cadillac,
192;
(2006),
474 Mich
I following would hold that the factors should con- substantially sidered to determine whether an individual (1) major activity: limited in a life nature of (2) (3) impairment, severity, expected its its duration or (4) duration, long-term [Chmielewski, its effect. 457 Mich 633.] at
See, also,
Exch,
v Wood Detroit
Inter-Ins
Auto
413 Mich
573;
(1982),
Dissenting Opinion by J. Markman, vehicle determining parked whether material to are 500.3106(1); MCL risk unreasonable under poses an (2005), Yackell, 520; Mich 703 NW2d and Reed economic- “extra-textual” multifactor utilizing an for pur- an employer test to determine who is reality Compensation Act. Disability poses of the Worker’s claim apparent, majority’s readily should be As “extra-textual” factors including Kreiner erred wholly a is a manu- interpreting statute to consider fact-specific requires concern. The statute factured opinion DiFranco As Justice CAVANAGH’s analysis. recog- have of this Court numerous other decisions nized, courts in statu- applying such factors assist date, case-by-case on a basis. To none tory language objected have to the the members of the this Court’s any of such factors other of inclusion decisions.
Nevertheless, Kreiner’s “extra- rejects they on basis that all “include textual” factors made reiterating argument temporal component,” not create by the Kreiner dissent that “the statute does long as to how an express temporal requirement 203, 208; also must last. . . .” Ante at see Kreiner, J., dissenting) Mich at (CAVANAGH, *58 (“[T]he of function threshold serious limitation. . . . any temporal not sort of suggest does Therefore, the duration of the not Indeed, majority the now holds appropriate inquiry.”). the unnecessary impair- it is to consider whether that general to [plaintiffs] even “continues affect ment (Em- .” pre-incident to his ‘normal life’ . . . ability lead added.) phasis not that this dis- majority, surprisingly,
The claims holding mischaracterizes its when we conclude sent wholly largely or irrel- temporal that considerations are Carrier McCormick v Dissenting Opinion by Markman, J. majority’s holding. only, evant in the Not as explained above, my characterization of their holding supported language opinion, the actual the but it is majority is, given also dictated That the simple logic. that majority rejects they Kreiner’s all “in- factors because temporal given clude a it feels component,” pas- sionately enough lengthy about this to write opinion overruling Kreiner, given can discern no we significant departure other from Kreiner the majority’s new test than that the temporal component,27 it is here, to difficult the conclusion we reach the escape majority believes that are temporal considerations wholly or largely irrelevant.
I am reminded of a famous Sherlock Holmes line: you you
“How often said have I to that when have remains, impossible, eliminated the whatever however im- probable, Doyle, must be the truth?” Sign [A. Conan Four, (New Complete from The Sherlock Holmes York: Doubleday, 1890), 6, p ch 111.] above, explained discrepancies As are there other between Kreiner majority’s opinion, i.e., DiFranco/Cassidy and the and the “trajectory/entire” However, discrepancies. discrepancies these two are disagreement intertwined with temporal our about whether consider By DiFranco, returning ations should considered. our law at which plaintiffs “general ability time the her lead his or normal life” not issue, at it is temporal much easier to claim that wholly addition, largely considerations are or irrelevant. In because inappropriate “trajec believes that it is to consider either the tory” person’s life, or temporal the “entire” it believes that consider ations, impairment, wholly largely such as the duration are or However, clearly pre irrelevant. we because conclude that the statute DiFranco, Legislature very clearly cludes return to since the “general ability indicated that lead her his or normal issue, temporal life” is at we believe that considerations are relevant. Similarly, “trajectory” because we believe that “entire” person’s considered, temporal life should be we believe that consider ations, impairment, are, fact, highly such as the duration relevant. *59 MICH by Opinion Dissenting Maekman, J. essentially with agrees majority that the is, given
That considerations,28 but temporal in its everything Kreiner all that remain as considerations are temporal Kreiner’s Therefore, the dis- majority that disagreement. our considerations, such as temporal Kreiner’s agrees with “must be the truth.” impairment, of the the duration the Kreiner test and the words, comparing when other to be— that is intended new test —whatever majority’s that, is while difference substantive only apparent the considerations, the temporal expressly Kreiner includes majority the essen- test does not. Given that majority’s temporal in Kreiner but its tially everything agrees considerations, only gives given that reason all “in- they is that rejecting these considerations can deduce component,” how we temporal clude a that tem- majority that the holds anything other than considerations, impair- of the such as the duration poral ment, Furthermore, temporal if consid- irrelevant? are irrelevant, why majority not are not does erations relevant, how, fact, in or in what these are explain way relevancy temporal consider- views ations, expressed differ from those and how these views its own glaring explanation Kreiner? This void by explained can majority opinion test holding temporal is consid- fact that irrelevant. wholly largely erations are (1) analysis majority essentially agrees with: Kreiner’s of MCL i.e., 500.3135(2)(a), dispute, material whether a if there no factual body person impairment should he a serious function has suffered (2) law; analysis Kreiner’s as a matter of determined court important body language objectively anof “an manifested (3) function”; that the Kreiner’a conclusion serious (4) subjective analysis; a Kreiner’s conclusion function threshold entails ability determining plaintiffs general to lead his or her whether “necessarily requires comparison of normal life has been affected (5) incident”; conclusion before after the and Kreiner’s life permanency required. not y Carrier Dissenting Opinion Mabkman, J. (1) temporal In sum, if considerations are relevant: *60 why overruling majority why Kreiner; is the does (2) majority reject factors, Kreiner’s such as the (3) impairment; why major- duration does the ity temporal not include considerations within its (4) why majority explain test; new does the fail (5) relevancy temporal why considerations; does majority unnecessary conclude that it is to con- impairment sider whether the “continues to affect [plaintiffs] general ability pre-incident to lead his (6) perhaps why tellingly, ”; ‘normal life’ and most majority clarify position, not does may its whatever it light Simply saying be, in of this dissent? our conclusion so, is “erroneous” does not make it point, hardly and, more even to the will assist the determining bench and bar of this state whether, temporal how, considerations somehow remain today’s relevant after decision.
For reasons, these we are unable to avoid the conclu- holding temporal is, that the indeed, sion wholly largely irrelevant, considerations are even though “improbable” departure result constitutes a Cassidy, DiFranco, from Kreiner, and makes ut- terly possibly no sense. How can it be determined impairment general person’s whether an “affects the ability taking to lead his or her normal life” without temporal Kreiner, into account considerations? As inquired: Mich at n majority]
Does the really [now dissent believe that an impairment lasting only a few moments has the same person’s “general effect ability on a to lead his or her impairment lasting years normal life” as an several or that impairment requiring an annual treatment the same person’s “general effect ability on a to lead his or her impairment requiring daily normal life” as an treatment? MICH Dissenting Opinion Markman, J. really Legislature believe Does the to be threshold intended for the serious objectively mani- every instance where met body function important of an fested life for a lead his normal person’s ability affected gets if hit in the person What mere moment time? minutes, but after those out five passes head impair- unaffected completely five minutes irrelevant, are temporal ment? If all considerations thresh- satisfy majority’s not this person would ability to lead his normal life old, his general because those five minutes of un- certainly affected for rule, majority’s appar- it is consciousness? Under the after those five ently person that the arose irrelevant life completely led a normal thereafter. minutes and *61 all that matters is that for majority The asserts that time, ability in to person’s general that the moment I had not sure normal life affected. am lead his been new can even be called majority’s the threshold virtually in a “threshold” when can satisfied in in- every accident case that results automobile objec- an long plaintiff as the has suffered jury.29 As an func- tively impairment important manifested tion, majority’s have plaintiff will satisfied read threshold, essentially has majority because criterion, i.e., person’s general “that affects the third ability life,” or her normal out the statute. to lead his difficulty determin- The illustration of the clearest gen- person’s whether an “affects the ing his her ability eral to lead or normal life” without taking is the temporal into account considerations 29 bearing certainly It is a no resemblance to the other two “threshold” “permanent disfigurement” and See MCL serious “death.” thresholds — 500.3135(1). Carrier Dissenting Opinion by Markman, J. majority’s inability own do In determining so.30 whether instant case suffered an general ability affects his to lead his life, normal repeatedly temporal itself cites considerations. For example, majority indicates that “for a incident, month after the plaintiff could not bear weight ankle”; his on left underwent surger- “[h]e two ies over a period of months and multiple months of “after physical therapy”; the incident he was unable to perform necessary functions for his for job at least months”; and did “he not return to work for 19 added.) months.” (Emphasis Are such temporal consid- erations irrelevant we relevant? Do interpret words or And, the actions of the majority? if temporal irrelevant, considerations are how are we to determine whether an impairment affects a plaintiffs “general ability to lead his or her normal life”? The majority does not appear answers, know and it appears not to care that it does not know.
Indeed, under the majority’s threshold, new it would seem that the moment the plaintiff in this went case Mich ferently by why statutory language, on the at has led to inconsistent basis that “Kreiner 56-57, might different Justice be the case: criticizes Kreiner courts.” Cavanagh similarly However, situated already provided “deifying] practical in his plaintiffs being opinion interpretation explanation DiFranco, workability” treated dif Conflicting among involving results have also arisen cases injured
similarly
plaintiffs.
undoubtedly
This is
because no two
*62
injured
precisely
are
or recover
the same manner.
conflicting
These
results indicate that
threshold issues are often
questions upon which reasonable minds can differ.
Moreover,
Appeals
inconsistently
the Court
incorrectly applying
is
or
if
Kreiner,
rectify
this Court has a
reversing
mechanism
such errors —
decisions,
overruling precedent
such
substituting
incompre-
not
an
bearing
relationship
hensible
being
new standard
no
to the law
inter-
preted.
the met. For at that ankle, the threshold was his broken the While at emer- moment, could not work. afterwards, time room, for measurable some gency some, just not but all ankle affected plaintiffs broken majority’s Under normal life. the capacity his to live his test, no need to con- non-temporal apparently there visit. If this beyond emergency room anything sider wrong, again, decision is once reading of its for why this is so the benefit explain wish to might bench, bar, public. and the threshold, would also In its new crafting statute. larger been to consider the no-fault have wise injured decided that an Legislature Recall that the has to recover only be allowed sue plaintiff should from automobile damages resulting noneconomic (b) (a) death; he or she suffered: accident where (c) permanent disfigurement; impair or serious serious function. MCL 500.3135. It is well estab body ment of “ series terms ... we construing lished that [w]hen in a list guided by principle grouped are that words ” In Complaint re given meaning.’ should be related Mich, 90, 114; 754 SBC NW2d Against Rovas omitted). (2008) (citation words, “In this other sociis, the doctrine of noscitur a which applies Court phrase given for that a word principle ‘stands ” (citation Id. meaning by setting.’ its context of omit ted). Therefore, Cassidy, Court explained atMich 503: required determining injury for seriousness of function”, impairment of this threshold
a “serious conjunction other thresh be considered in with the should loss, requirements for noneconomic old a tort action disfigurement. namely, permanent serious MCL death and clearly did Legislature not intend 500.3135 .... *63 Carrier Dissenting Opinion by Mabkman, J. significant erect two obstacles to a tort action for noneco obstacle.[31] quite insignificant nomic loss one and Legislature impair- addition, defined “serious body objectively ment of function” to mean “an mani- impairment important body fested of an function that person’s general ability affects to lead his or her 500.3135(7). enacting Obviously, normal life.” MCL in language, joining this threshold and in it with “death” permanent disfigurement,” Legisla- and “serious unlikely impairment ture was to have had in mind an plaintiffs ability that affected a to lead his normal being for a time, life moment in with no consideration given ability general to the to lead his normal beyond quite life Indeed, that moment. it is certain that Legislature given is not mind, what the had very premise act, of the no-fault and the core of the legislative accompanying compromise, some injured persons not would be able to recover noneco- damages, injured persons nomic so all would be regardless able recover economic loss benefits fault.
D. APPLICATION explained earlier, As both Kreiner and the agree that the court must first determine whether there dispute is a factual that is material the determination impairment whether has suffered a serious body Here, function. there no are material factual DiFranco, (Williams, C.J., See also at concurring part (“In dissenting part) statutory language, ‘serious appears requirements function’ with the other threshold ‘permanent disfigurement’ ‘death,’ leaving strong impli serious cation, ejusdem generis, under the rule of that while the fatal, permanent need not be or it was not to be transient trivial either.”). 487 Mich Dissenting Opinion Markman, J. approxi- accident, plaintiff worked Before the
disputes.
the six months imme-
and for
mately 60 hours week
was that
accident, plaintiffs position
diately before
Additionally, plaintiff
medium-duty
truck loader.
accident,
months after the
golfed.
Twelve
fished
*64
to return to work with
cleared him
plaintiffs surgeon
accident,
after the
no
Seventeen months
restrictions.
to perform
work
has been able
plaintiff returned to
and
he
During the entire time
job
all
his
duties since then.
of
tend to his needs and
recuperating, plaintiff could
was
his
no
on
with
then-
relationship
there was
effect
his
and golf.
continued to fish
Additionally, plaintiff
fiancée.
are no factual
Thus, agree
majority
I
the
there
with
the determination
of
that are material
to
disputes
serious
of a
impairment
whether
suffered a
function. The facts are clear.
“body
agree
I also
with the
the
func-
walk,
the
“impaired,”
ability
tion” that was
to
was
“objectively
“important,”
and that
was
Although plaintiff was able to walk to
manifested.”
extent,
ability so was
and his
impaired,
some
his
do
ankle,
recognized
was
his
impairment, a broken
critical,
in this
final,
inquiry
The
and
case
doctors.
plaintiffs
affected
concerns whether
general ability
lead his normal life. This is where the
requires
and I
Kreiner
a
depart.
analysis
of
life before the accident and
comparison
plaintiffs
accident,
“the
including
significance
any
after the
aspects
overall
plaintiffs
affected
on
course
Kreiner,
Mich
aid
life.”
at 132-133. To
may
analysis,
following factors
considered:
(b)
(a)
impairment,
the type
extent
nature and
(c)
length
required,
of treatment
the duration
(d)
any
impairment,
impairment,
the extent of
residual
(e)
recovery.
prognosis
[Id.
133.]
for eventual
at
v Carrier
Dissenting Opinion by Markman,
J.
ability walk,
noted,
Plaintiffs
as just
impaired
was
However,
aby
broken ankle.
plaintiffs
once
ankle was
placed
room,
cast at the
he
emergency
was able to
And,
walk with the aid of crutches.
immediately following
his initial
surgeiy
which
device was implanted to
ankle,
stabilize his
plaintiff was still able to
walk
crutches,
he
although
was instructed
to place any
not
weight on his ankle for one month. Plaintiff underwent
physical
therapy
later,
nine months
in October
plaintiff again
surgery
underwent
to remove the device.
(one
By January 2006
year
accident),
after the
surgeon had cleared plaintiff to return to work with no
However,
restrictions.
plaintiff claimed that he could not
keep up with the
job
demands
his
and thus
placed
back on workers’ compensation. Although plaintiffs sub-
jective
his
reports
pain
from January 2006 forward
greatly,32
varied
FCE supported
March 2006
plain-
tiffs claim that he could
fully perform
not
all of his
duties;
previous job
however, this was due in part to a
*65
preexisting and
injury.
unrelated shoulder
plain-
After
tiffs
compensation
workers’
terminated,
benefits were
however, plaintiff requested
FCE, and,
another
on Au-
1,
gust
2006, the FCE
plaintiff
showed that
was able to
perform
job
essential
demands with no restrictions.
Plaintiff
to
returned
work on August 16, 2006, and has
been able to perform
job
his
duties since that time.
32
already discussed,
January 2006, plaintiff
As
in
reported
surgeon
to his
giving
any
2006,
pain;
plaintiff
that his
was
reported
ankle
not
him
in March
during
pain
10;
2006,
his
plaintiff reported
FCE that his
was out of
3
in June
physiatrist
10;
pain
August
to his
2006, plaintiff
that his
6was
out of
in
reported during
(at
pain
his
that
FCE
his
was
lowas
as zero out of 10 which
point,
work);
2006,
he
plaintiff reported
returned to
during
and in October
deposition
his
pain.
that his life was
drastically
“normal” with some
These
reports
pain
why,
regard
inconsistent
demonstrate
to
“extent
any
impairment,”
restrictions,
“[s]elf-imposed
residual
opposed
physician-imposed restrictions,
perceived pain
based on
or
real
do not
point.” Kreiner,
establish this
471 Mich at
n
17.
Although plaintiff he had demanding position than the physically less did this injured, plaintiff he before was performing been Moreover, in at pay. no loss voluntarily and he suffered in only he been injured, had time was plaintiff and, began since he to work for six months position posi- different had worked three Allied in he to a assigned was Thus, the fact that defendant tions. return is not particularly his position upon different analysis. Court’s significant inability his argument regarding only Plaintiffs he was unable to work at his normal life is that lead During recuperating, the time he was certain times. to his care for himself and tend house- could plaintiff relationship with without assistance. His hold chores And he able to unaffected. was his fiancée/wife interruption. without recreational activities enjoy his admission, his “normal” with own life was By plaintiffs aggravated by not aching” “occasional that was some activities, including standing prolonged walking. any fully had say by August plaintiff It is fair to only plain- ankle. Because recovered from his broken affected and because this ability tiffs work was most, did not err lasted, months, the lower courts at not affect concluding plain- that the did and, his normal life there- general ability tiffs to lead fore, impair- did meet the “serious not ment of function” threshold.
E. STARE DECISIS
Kreiner
its usual
paying
overrules
while
disagree-
My
service to stare decisis.33
fundamental
lip
authoring justice has
*66
It is
that this is the second time the
of interest
overruling
opinion
an
case and thus made
easier for
authored an
earlier
function.
In
to establish a serious
263
McCormick v Carrier
Dissenting Opinion Markman, J.
with
majority’s
ment
the
of the stare
application
decisis
doctrine is quite easily summarized.
v
Robinson
Detroit,
464;
(2000),
Mich
Petersen. And whatever else can be understood of Justice
Hathaway’s
“approaches”
decisis,
application
and Justice
to stare
Weaver’s
*67
264
herein, Kreiner was the
the 1995 amend-
interpret
called
upon
Court was
to the
gave
Kreiner
effect
ments to MCL 500.3135.
language
intent
in the
legislative
expressed
not,
wrongly
in my judgment,
amended statute
Nonetheless,
disagreement
major-
with the
my
decided.
Rather,
the thrust of this section.
ity
point
on this
not
“that
are
issues
majority
larger
it is to
the
there
remind
law,
for
respect
in this
the rule of
at stake
case:
Court, and judicial
the
of this
integrity
precedent,
are
issues
Accordingly, larger
restraint.
institutional
Hts,
v
476 Mich
Paige Sterling
in this case.”
implicated
(2006) (CAVANAGH, J.,
495, 543;
NW2d 219
concur-
720
in
dissenting
part).
ring
part
in
Indeed,
opinion,
as one
majority
the author of
legislative acquies-
to the doctrine of
who subscribes
cence,
of
decisis
principles
has often
stare
argued
statutory interpreta-
in matters of
especially strong
are
are relevant here:
Accordingly,
tion.35
his own words
precedents
being
“approaches”
13
resulted in
of
Court
these
has
during
precedents being
and 6
teed
overruled
this term alone
other
term,
up
during
possible overruling
doubtless
for
next
a record
Regents
[Univ
Mich
pace
dismantling
of this
the caselaw
state.
of
(2010)
Co,
289,
10;
v Titan Ins
487
340 n
NW2d
Mich
791
897
(Markman, J., dissenting).]
particularly
justification.” Paige,
J.,
part
tation,
468 Mich
NW2d 41
thoring
dissenting);
266 Dissenting Opinion Markman, J. when the should not be overruled cases part their changed membership is the thing that has gone by wayside.36 have Court IN 2009 1. ANDPRECEDENT MAJORITY 2009, January power assumed majority The new its to “undo” time in efforts beginning and wasted little 29, On December majority.37 of the previous decisions its in United opinion issued the former v Fidelity Guaranty Catastrophic & Co Mich States Ins (2008). 154 Ass’n, 414, 417; Mich 759 NW2d Claims 482 replaced former Chief Soon after Justice HATHAWAY 1, 2009, filed January Justice TAYLOR on majority granted the rehearing. for The new motions cases rehearing, and the were plaintiffs’ motions briefing decision further resubmitted for “without (2009). Then, in 483 Mich United argument.” oral 918 Co v Fidelity Guaranty Catastrophic & Mich States (On 1, 26; Mich Ass’n NW2d Rehearing), Claims (2009), major the new reversed the former ity’s decision. Comm, 197, 256; CoRd 731 NW2d Rowland Washtenaw (“The (2007) (Kelly, concurring part) J., part dissenting law wearing changed. Only changed.”); have not the individuals robes *69 J., part concurring
*70
Paige,
Mich
in
and
476
at 532-533
(Cavanagh,
(“The
part)
only
composition
dissenting
change
been
this
in
unfortunately, this
answer to the
Court. And
is the
reasonable
just
years
why
eight
question
this
from
Court decided
earlier
decision
being
involving
But
issue is now
overruled.
make no
and
same
alarming,
mistake,
increasingly
it has
com
this answer is
become
mon.”).
changed
observed,
composition of
As
after the
this Court
when
January 1,
replaced former
Justice
on
Justice
Chief
Hathaway
Taylok
2009,
granted
even
this Court
motion
reconsideration
legal
any
arguments.
though
not
new
485 Mich
such motion had
raised
(2009).
851
37
10,2008,
Press,
p A2,
Chief
Detroit Free
December
where
Justice
See
damage
Republican-dominated
promised to
... the
that the
“undo
Kelly
court has done.”
McCormick v Carrier
267
Dissenting Opinion by Markman, J.
In Bush Shabahang,
156,
34;
v
484 Mich
n
175
772
(2009),
272
NW2d
stated that
it “ques
I
tion[ed] whether Roberts
v
[Roberts Mecosta Co Gen
(2002)]
Hosp,
57;
466 Mich
483
Comm,
197;
41
Mich
731 NW2d
Rd
477
Co
Washtenaw
Co,
Mut
Ins
(2007);[39]
v State Farm
Auto
and Scott
(2009),
to
Thornton v
where it failed
enforce
Mich
(1986),
Co,
643;
Ins
425 Mich
On
apparent
for its
from stare deci-
reasons whatsoever
detours
Instead,
explain
and,
majority
if
sis.
declines
whether —
so, why
overruling precedent despite
the obvious
—it
appearance
doing
legal
If it
to alter
it is
so.
intends
decisions,
then the
principles embedded
this Court’s
majority
explain
clearly
should
its reasons
new
Instead,
majority
intelligibly.
indi-
new
overrules
rection,
doing
impression
or at
leaves the
that it is
least
so, thereby sowing
making
the seeds of confusion and
comprehend
for the citizens of this state to
difficult
appears
This
precisely
requires.
what our caselaw
be an
predecessors’ past practice
our
unfortunate return to
decision, something
majority
apparently
new
loath
do
majority justices
loudly
(perhaps
repeatedly and
because several
decisis,
fealty
dissented,
proclaimed
to stare
whenever
precedent),
increasingly becoming
it is
overruled
former
operandi
precedents
simply
the modus
of this Court that relevant
ignored.
Rowland v Mich State
Ward
failed to
also
follow
(2009).
Univ,
Additionally, Petersen, 313-326, in 484 Mich at Chief Justice KELLY an opinion, joined only by authored Justice in which she indicated that she CAVANAGH, wanted to overrule and Lansing Robinson v Pub Mayor (2004). Comm, Serv 154; 470 Mich 680 In my NW2d 840 dissent, I stated: that in expressly
Given
this case
Chief Justice would
overrule,
one,
decisions,
prior
not
but
two
this Court’s
naturally
“one is
tempted
re-inquire,
see
v
Rowland
Comm,
197, 223-228;
Washtenaw Co Rd
477 Mich
731
(2007) (Markman, J., concurring),
41
NW2d
whether the
dispute
ongoing
between the [former]
and Justice
overrulings
precedent truly
KELLY over
atti
concerns
merely
tudes toward stare
decisis
attitudes toward
particular previous decisions of
[People
this Court.”
Smith,
(2007).]
292,
17;
478 Mich
322-323 n
pressly
precedent
major-
when
has heen
[former]
overruled. The
ity
attempted
precedent
has never
to obscure when a
over-
ruled or to
precedents by
minimize the number of such
dubious
“distinguishing”
prior
Rather,
forthright
caselaw.
been
in
identifying
critiquing precedents
wrongly
that were viewed as
warranting overruling.
decided and
487 Mich
Opinion
Dissenting
Markman, J.
power,
judicial
the exercise
of stare decisis for
tance
“differing
possessed a
see, e.g.,
claim that she
her hollow
another
decisis” than
[and elevated] esteem
stare
41,
31;
Gardner, Mich
88 n
753 NW2d
justice, People v
reality
more
(2008),
in
little
than
such rhetoric was
overruling
communicating
opposition to
her
means of
[Petersen,
agreed.
she
particular past decisions with which
(emphasis
(Markman, J., dissenting)
in
Mich at 389-390
original).]
majority began
to which the
practice
One other
new
requesting
parties
that the
brief
to adhere
2009 was
majority should be
a decision of the former
whether
Young’s
See,
dissent
e.g.,
partial
overruled.
Justice
n
he stated:
Potter,
Thus, January July 31, 2009, from 2009 through new majority an opinion rehearing, reversed on sowed seeds of by questioning confusion three cases decided by i.e., I, the former majority, II, Roberts Roberts Boodt, failed to precedents, follow numerous other above, cited began issue orders requesting that parties brief whether decisions made the former majority should be overruled.41 And Chief Justice KELLY and Justice went urging on record the ex- CAVANAGH press of two overruling cases: Robinson and Lansing Mayor.
2. MAJORITYANDPRECEDENTIN 2010 In 2010, has accelerated efforts to “undo” numerous cases decided by the former majority through express overrulings and additional orders ask- ing parties to brief whether a case should overruled. 41The majority’s Detroit Free took note Press actions and stated 11, 2009, editorial, Restoring judicial as follows in an October restraint-. began, Even before the term new the new Democratic (buttressed Weaver) renegade signaled impa- had its own begin dismantling Engler legacy tience to Court’s when it agreed appeal just rejected to reconsider an the court a month Taylor’s departure. appeal
before appears hinge revived on willingness Engler the court’s recent decisions. to reverse two of the court’s more *73 — hardly reinvigorate Democrats can stare decisis the reason- game change able every conviction that the rules of the shouldn’t — by reversing time every question- a new referee takes field predecessors able call its made. 180 487 MICH 272 Opinion Dissenting Mabkman, J. (2010), 184; NW2d 67 Feezel, Mich 783 486
In
v
People
Derror,
v
475
People
overruled
expressly
majority
(2006).
Ed
Lansing
Sch
316;
822
Mich
715 NW2d
349;
686
Ed, Mich
792 NW2d
487
Bd
Lansing
Ass’n v
of
Bd
Macomb Co
Lee v
overruled
(2010),
of
(2001),
900
726;
Mich
629 NW2d
Comm’rs, 464
Crawford
(2002),
250;
6
Serv, Mich
645 NW2d
466
Civil
Dep’t
v
of
Co,
Iron
471
Cleveland
v
Federation
Nat’l
Cliffs
Wildlife
&
(2004),
Builders
Associated
608;
800
Mich
684 NW2d
Dir, 472
Indus Servs
Consumer &
v Dep’t
Contractors
(2005),
Chiropractic
Mich
374
117; 693 NW2d
Mich
Servs, 475
Fin & Ins
v Comm’r
Council
Office of
(2006),
v Ann Arbor Pub
Rohde
363;
561
Mich
716 NW2d
(2007), Mich Citizens
336;
NW2d 158
Sch, Mich
737
479
America
Waters North
v Nestlé
Conservation
Water
(2007),
and Manuel
280;
NW2d 447
Inc,
Mich
737
(2008). In Bezeau v
637;
Mich
753 NW2d
Gill, 481
Entertainment,
455; 795
Inc, 487 Mich
&
Sports
Palace
overruled
(2010),
majority expressly
NW2d 797
Stein
Karaczewski v Farbman
effect of
limited retroactive
(2007).
Mich
In Univ
28;
3. OVERRULINGSOF
TO COME
PRECEDENT
work,
majority’s
The
however,
has apparently
just
begun.
granting
orders
for leave to
applications
it has
appeal,
already
up
teed
six more cases for possible
overruling. These include: Mich Citizens
Water
v
Inc,
Conservation Nestlé Waters North America
479
280;
Dunes,
Mich
737
(2007);42
NW2d 447
Preserve the
Inc Dep’t
Quality,
508;
v
Environmental
471 Mich
of
(2004);43
684
847
NW2d
Trentadue v Buckler Automatic
Sprinkler Co,
378;
Lawn
479 Mich
738
664
NW2d
(2007);44
v
Co,
State Farm Mut Auto Ins
472
Griffith
521;
Mich
697
895 (2005);45Rory
NW2d
v Continental
42
AuSable,
grant
Anglers
Dep’t
This
Court’s
order
Inc
v
of
Quality,
(2010), inquired
Environmental
Mich
485
1067
Mich
whether
decided,
correctly
majority
Citizens was
and denied a motion to
though
clearly
Anglers
dismiss that case even
the case is now
moot. See
AuSable,
Dep’t
Quality,
982,
Inc v
Environmental
486 Mich
(2010) (Young, J., dissenting). Apparently,
majority just
987-994
could
not
appears
wait until next term to overrule Mich Citizens because it
already
Lansing
to have done
inso
Sch Ed Ass’n.
43
grant
Anglers,
1067,
inquired
This Court’s
order
at
485 Mich
also
decided, and,
noted,
correctly
whether Preserve the Dunes was
majority
though
denied
motion to dismiss in
even
that case
it is now
(2010)
clearly
Anglers,
(Young, J.,
See
moot.
Ins 197; Comm, 477 Mich Co Rd Rowland Washtenaw (2007).47 NW2d concerned once purported
The new law,48 appears but concern stability about the majority. the former passing passed to have *75 difficult destabi- Indeed, anything it to more is consider multiple majority to than to the issue lizing the law have the brief parties that continually requesting orders been de- properly decided cases have recently whether as of stare postured champions once cided. Justices who to disfa- quickly enough now act overrule decisis cannot fealty majority’s past The claims precedents. vored obviously greatly exaggerated, and stare decisis were a of their nothing opposition more than function the the being by decided Court at decisions particular time. HYPOCRISY STARE DECISIS
4. AND justices majority dissenting hypoc- The accuses the risy regard to our stare decisis criticisms of majority. (2009), Co, subsequently but case dismissed
Ins
It has been pri- command,” judge’s and that an “inexorable not constitution, not to the and the mary obligation is law end, To that of his or her judgments predecessors. to the multiple judicial are that there always we have asserted case in any which must be assessed values that every implicated. are decisions of Court previous inter- case, respectfully consider the must judge such cer- predictability served stare ests decisis— its uniformity of law, application. and the tainty *76 must also consider However, case, judge such a every in correctly— law the by interpreting the served interests lawmaker, to adherence constitutional regard for the sepa- and the concerning “judicial power” the dictates competing predictability of powers, ration means are where law certainty interests that served Mich at As Robinson, 462 464-468. plainly says. what in Robinson: explained we reliance, dealing discussing when is recall in
[I]t well to ..., statutory that it to the that is with an area of the law first itself a citizen looks statute that words the essence of the directing his actions. This is guidance in society rules know in advance what rule law: to clear, Thus, are the actor if the words the statute are. is, rely, they that expect, will be able to that should fact, society, including the by in courts. carried out all MICH Dissenting Opinion Maskman, J. expecta- legitimate should a court confound those citizen statute, by misreading misconstruing tions or a it is that disrupted court itself that has the reliance interest. When happens, subsequent court, holding that a rather than reading distorted because of doctrine stare decisis, overrule the should earlier court’s misconstruction. distorting The reason for this is that the court in engaged usurpation judicial statute was in a form of principle runs counter to the bedrock of American consti- tutionalism, i.e., lawmaking power reposed in people as Legislature, and, reflected the work of the violation, legiti- absent a constitutional the courts have no macy overruling nullifying representa- people’s Moreover, compromising by tives. not does such a a ability rely court of the citizen’s on a statute have no warrant, gain higher pedigree constitutional it can no repeat later [Id. courts the error. 467-468.] at That has been the consistent approach dissenting justices, and this continues our approach. to be Respect value, for stare decisis is a critical judicial but so is regard for government the constitutional processes of judge which a to interpret strives the law in accor- dance its actual language. these Balancing values difficult, is sometimes people reasonable can often disagree as to how this balance should be struck. supplies Robinson one at attempt identifying the fac- traditionally tors that courts have in striking looked to this balance a consistent and reasonable manner. Despite suggestions contrary, to the Robinson does not establish a process, “mechanical” but simply attempts afford reasonable guidance in a fair achieving equi- librium between stare and getting decisis the law right.49 always position Given it has been our that Robinson does not process, surprising establish a “mechanical” it is not that the identify single
has been precedent able to case in which we overruled *77 specifically citing without Robinson. v Carrier Dissenting Opinion Markman, J. in above, now the justices the
However,
explained
quite
took a
Court at the time
on the
who were
majority
they were
decisis when
to stare
approach
different
explained:
YOUNG Justice
minority. As
the
changed,
the
decisis has not
position on stare
[Our]
in order to
attempts
[us]
focus to
majority]
to shift
[the
inconsistency.
public
The
confronting
own
[their]
avoid
positions
important
on
justices’
when
understand
should
this dissent: when
the focus of
And that
matters shift.
minority, [they] liked
justice[s]
in the
[majority]
[were]
majority, it is
lot;
[they are] in the
decisis a
now
stare
not an issue. That
stand.
ing).]
[Anglers, Mich at
is the
“irony”
(2010)
public
(Young,
should
J., dissent
under
criticism of its
our
entirely misapprehends
simply
are
if it thinks that we
stare decisis
record on
they have
on which
the number of occasions
counting
a half. That is
term and
past
over
precedent
overruled
acknowledge that we too
freely
at all.
not our intention
We
majority—
in the
we were
when
precedents
overruled
That is not
pace.
at their remarkable
although hardly
(a) Rather, the nub is:
critique.
nub of our
incon-
remarkably
have demonstrated
majority justices
decisis, in
toward stare
and “flexible” attitude
sistent
nothing
to be
subject appear
their views on
which
are in the
they
of whether
more than a function
(b)
majority justices equate
that the
minority;
they
in which
have
overrulings
precedent,
their own
the lawmaker
the law of
the distance between
widened
majority’s
court,
previous
and the law of
opposite.
we did the
overrulings, which
to-
of a court’s attitude
discussion
meaningful
“[N]o
solely on an arithmetical
can be based
precedent
ward
simply
are
overrulings
raw numbers
analysis which
all precedents
that not
analysis
obscures
counted. Such
others,
reasoned than
alike,
are better
that some
are built
*78
487 MICH by
Dissenting Opinion Markman,
J.
grounded
that some are
in the
discretionary
exercise of
judgments and others in the
of
interpretation
plain lan
guage,
thorough
analyses
that some are
in their
and
Rowland,
others
Thus,
present
majority
regard
has
neither
for
precedent
for
significant
nor
the most
competing value
that would sometimes warrant
overturning
prece-
dent, wit,
that it is
not
accord with
words
of the
end,
lawmaker. In the
majority’s
approach
stare
decisis
empty
and
majority
incoherent. The
has
precedents
unsettled the
of this Court
aat Guinness
pace,
world’s record
has
it
done so
disserving
while
both the values of stare decisis and that
court acting
of a
in accordance with
separation
the constitutional
powers
respect
the decisions of the lawmaker. The
majority
run
amuck in service of
values
have
no
in either
grounding
any
stare decisis or
other con-
ception
“judicial
of the
power,” other
they
than
comprise
an arithmetical
of this Court. In regard, the majority
power
confuses
and authority. The
unsettles
confuses the
both in
law
its
disregard for this
previous
Court’s
decisions and in its
equal
disregard
language
of the law. It com-
Carrier
McCormick v
Dissenting Opinion Markman, J.
one realm with
the confusion it fosters
pounds
is no
in the other.50 There
fosters
confusion
no balanc-
overrulings
precedent,
in its
saving grace
recogni-
no
judicial principles,
apparent
difficult
ing of
competing
either
tion of
values served
issue,
at
precedents are
involved where
considerations
roughest
to articulate even
thoughtful
and no
effort
march
for its
In its destructive
actions.
principles
surviving
to identify
of this state
through
caselaw
out,”
“taken
that need to be
straggling
decisions
any
legal
no discernible
value
majority furthers
*79
In
litigation.
than
and still more
kind,
litigation
other
the
end,
majority’s approach
is
core to
legal
the
there
no
decisis,
than
nothing
and it is left with
other
to stare
the
actions
those of
equate
effort to
its own
feeble
majority.
in
“We
justices
they were
the
dissenting
when
banner, when
you”
majority’s
than
is the
are no worse
of
slightest conception
in
the
has not the
truth
decisis,
slightest
our
to
and not the
approach
stare
to
own
approach
the
that their
damage
of
conception
who
to the citizens of this state
doing
stare decisis
wish
to act
accordance with
law and who
wish
and
under that law.
obligations
their rights
understand
E
THE LEGISLATIVECOMPROMISE
UNDOING
earlier,
legislation
although virtually
discussed
all
As
act, in
compromise,
some sort of
the no-fault
involves
entailed a substantial
well-understood
particular,
of economic
exchange
payment
for the
compromise.
50
Law,
Driving
See,
example, Ruling
Smoking,
Detroit
Pot
for
Clouds
overruling
29,
majority’s
News, July
(indicating
of
that the
recent
scratching
police
their heads in confusion”
in Feezel “has
officers
Derror
ruling mostly
reporting
“[t]he
leaves
officers
law enforcement
limbo,
Hawkins,
Christopher
legislative
legal
Sgt.
liaison
in a
said
<http://www.detnews.com/article/
police”)
at
state
available
(accessed
2010).
July
20100729/METRO/7290387#ixzz0v6dvSnGK>
MICH Dissenting Opinion Makkman, J.
(first-
loss benefits from one’s own insurance company
benefits),
party
Legislature
injured per-
limited an
ability
negligent
son’s
to sue a
of a
operator
owner
vehicle for
(third-party
motor
noneconomic losses
ben-
efits). Kreiner,
Mich
114-115.
at
As stated
Dixon,
531, 541;
Stephens
Jur Automobile contains the following:
“It has been of plan practical said one such that adoption personal injury protection effect insur- security is to ance afford the citizen the of prompt and recovery certain to a fixed amount of the most salient * * out-of-pocket expenses elements of his *. In for return possibly damages pain this he surrenders the minimal suffering by recoverable cases not marked serious v Carrier Opinion Dissenting Markman, J. grave injury, objective and also or indicia economic loss through generous that a the outside chance surrenders jury in by judge a such a or a liberal award settlement out of reap monetary windfall his may case be able to he omitted.) (Footnotes misfortune.” Thus, requirements for a apparent that the threshold it is play impor- loss tort action for noneconomic traditional [Cassidy, functioning of the no-fault act. tant in the role 500-501.] 415 Mich at legislative question there no
Accordingly, recognized act produced no-fault compromise sufficient to injuries that some would not considered injury result- every meet the no-fault threshold. While certainly has adverse ing from a motor vehicle accident costs, involve medical treat- consequences, may ment, bodily injuries not all rise to level of pain, the no-fault threshold of a “serious injured able to recover persons function.” Some are all are damages, injured persons noneconomic so that regardless benefits able to recover economic loss Otherwise, by granting has been gained fault. “little without to fault.” Id. regard benefits for economic loss Indeed, of motor vehicle litigation at 500. “the excessive continue, and, economic loss yet, cases” would accident In regardless have of fault. Id. paid to be benefits would recover eco- words, other would be able to plaintiffs of fault and without regardless nomic loss benefits having jury, to a these same would go while go jury and seek noneconomic also be able reached compromise That is not the benefits well. particular, proposi- is a lose-lose Legislature. i.e., system, all funding tion for those the no-fault Michigan insured drivers.51 majority argues legislative compromise that led trump adoption itself cannot cited to the 1995 to the of the no-fault act he 500.3135(7). agree, position that the MCL We but it is our enactment of *81 180
282
487 Mich
by
Dissenting Opinion Markman, J.
addition,
that,
it has
repeatedly recognized
been
insurance,
due
mandatory
to the
nature
no-fault
Legislature intended that its cost be affordable. Shav-
(“The
ers,
Legislature
Every
public
owner of
is driven on
must
certain
highway
buy
coverages
basic
in order to
register
the vehicle
obtain license
MCL
plates.
500.3101(1).
Legislature
provided
two incen-
required
tives to ensure that owners
purchase
First,
insurance.
it is misdemeanor to
a motor
drive
coverage.
vehicle without basic no-fault
Under MCL
500.3102(2), if
driving
someone is
convicted
without
basic no-fault insurance
he or she
coverage,
can
fined
$500,
up
jail
up
year,
incarcerated
to one
or
Second,
both.
no-fault
precludes receipt
act
personal
no-fault
if
protection insurance
at the
benefits
time
accident
was the owner
person
registrant of an uninsured motor vehicle
involved
500.3113(b).
accident. MCL
Notwithstanding
sanction,
criminal
potential preclusion
and this
of no-
*83
benefits,
fault
it
is estimated that
percent56
17
of
Michigan’s approximately 8 million motor vehicles57are
still operated without a
policy
no-fault
in effect. With
such mandatory
now
policies
becoming even more ex-
pensive, one can
reasonably
also
a
anticipate
corre-
sponding
in the already large
increase
of
number
unin-
sured vehicles
driven
being
on our roads and highways.
56According
Michigan’s
Book,
to the Insurance Institute of
Fact
2009
study
the Insurance
estimating
Research Council released
in 2008
Michigan’s
percent. <http://www.
uninsured motorists
rate
at 17
(ac
iiminfo.org/Portals/44/Fact%20Book%204%20Auto%20(19-29).pdf>
2010).
28,
Indeed, according
July 11,
cessed June
ato
2010 editorial
News,
the Detroit
suggest
“Statistics
half
more than
drivers Detroit
ignore
by driving
coverage
they
state law
without
because
can’t afford the
premiums.
problem
That’s a
for their fellow motorists and
for
state.”
< http
01/With-credit-scoring-
://detnews. com/article/20100711/OPINION
issue-decided-policymakers-should-explore-other-ways-to-trim-auto-
(accessed
2010).
insurance-costs#ixzzOtUKFqijI>
July 14,
57 According
Michigan,
2008,
to the
as
Insurance
Institute
vehicles,
Michigan
registered
had
8.2
chttp://
million
motor
(accessed
www.iiminfo.org/Portals/44/registered%20vehicles%2008.pdf>
2010).
28,
June
285
v Carrier
Opinion by
Dissenting
Markman, J.
in-
only result
will not
decision
majority’s
more
premiums,
insurance
automobile
creased
highways, but
roads and
on our
uninsured vehicles
be
more lawsuits will
substantially
mean that
also
will
act
the no-fault
express goal
an
filed,
though
even
vehicle
of motor
litigation
to reduce “excessive
Yet, under
Mich at 500.
Cassidy, 415
cases.”
accident
make their
will
more lawsuits
majority’s opinion,
loss
of noneconomic
the consideration
way
juries
courts.58
benefits,
already
our
overburdened
straining
58
decisions,
majority’s
not to
it is difficult
If one reviews the new
jurisprudence
theme of their
coherent
conclude
by
They
virtually guaranteed as much
fostering
litigation.
have
law,
doubt,
uncertainty,
into the
introducing
and confusion
opinions.
interjecting
into their
gratuitously
irrelevant considerations
J.)
O’Neal,
(opinion
See, e.g.,
n 22
As it no-fault negligence automobile cases remain a dominant factor in Michigan civil filings every year. Indeed, 47,300 of the filings new civil case in Michigan 2009, circuit courts in 9,067 approximately 20 percent — of all civil cases—were automobile related.59 Given that many no-fault claims are settled without the filing of a lawsuit, the number of claims potentially affected by the majority’s ruling is even higher.
The majority’s decision will also increase the costs incurred by the state of Michigan (and, itself course, costs). taxpayers who fund those In the course of arguing that Kreiner should not be overruled because it “clarifies rather than expands the statutory language,” the Attorney General’s amicus curiae brief warns that if overruled, Kreiner is as a self-insured entity, the state will direct, realize “a significant increase in the cost of its litigation and coverage obligations.”60
Finally, and as a consequence of all above, majority’s decision will almost certainly call ques- into tion the long-term economic integrity of the present no-fault system in Michigan. By nullifying the legisla- tive compromise that was struck when the no-fault act was adopted compromise grounded in concerns over —a litigation, excessive the over-compensation of minor injuries, and the availability of affordable insurance— considered to have employment” occurred “in the purposes course of compensation); of workers’ and the 2010 amendments of MCR 2.112 and 2.118, cclxxv, MCR (undermining eclxxvi affidavit of merit requirements). case, course, In the instant majority, by undermin- ing compromise the no-fault Legislature, struck makes easier for plaintiffs to sue for noneconomic loss benefits. Report See 2009 Annual Michigan Supreme Court, pp 35-36, available at <http://www.courts.michigan.gov/scao/resources/pubhcations/ (accessed 2010). statistics/2009/2009execsum.pdf> 28, June reported that, 2007, It was as of the state’s vehicle fleet totaled 11,856. <http://www.greatlakeswiki.org/index.php/Michigan_state_fieet_ (accessed 2010). efficiency> June *85 McCormick v Carrier Dissenting Opinion by J. Markman, environ- today legal will restore decision the Court’s reappears these hazards in each of ment which no-fault fiscal soundness of our continued threatens the system.61
IV CONCLUSION
act,
in MCL
insurance
automobile
The no-fault
subject
remains
500.3135(1),
person
provides
“[a]
caused
his or
noneconomic loss
liability
tort
motor vehicle
maintenance, or use of a
ownership,
her
death, serious
injured person
if
has suffered
the
function,
serious
body
permanent
or
impairment
issue here is whether
The
disfigurement.”
“
body
‘[S]e-
function.
impairment
a serious
suffered
objec-
function’ means an
body
impairment
rious
important
of an
tively
impairment
manifested
ability to lead
general
the person’s
function that affects
500.3135(7).
life.” MCL
his or her normal
Kreiner,
132-133, this Court held that
In
471 Mich at
affects
determining
whether
life, “a
ability to lead his normal
plaintiffs general
inquiry, compar-
in a multifaceted
engage
court should
and after the accident as
ing
plaintiffs
life before
on the
significance
any
aspects
well as the
affected
addition,
overall
life.”
course of
factors,
as the
that certain
such
Kreiner
indicated
may
be of assistance
impairment,
duration of
ability to lead
evaluating
plaintiffs general
whether the
life has been affected. Id. at 133.
his normal
premiums
expected
are not
increases in no-fault
I reiterate that
case, beyond making
analysis
legal
pertinent
issues in this
to our
compromise
undoing
legislative
point
significant practical
act and that there will be
embodied
the no-fault
consequences
doing
this.
tors and considerations are wholly largely irrelevant whether determining ability affects plaintiffs general to lead his or her normal The majority apparently life. holds instead that as long plaintiffs general ability as a lead his life has affected a single normal been for even *86 time, moment in suffered serious body function. This is at conclusion odds with the language actual statute and nullifies the legislative compromise embodied in no-fault act. I correctly Because believe that Kreiner was decided temporal fact, and that are, considerations highly relevant, necessary, in determining and indeed whether an impairment affects the general ability to lead life, his normal I By would sustain Kreiner. nulli- fying legislative compromise over the no-fault compromise act—a grounded concerns over excessive litigation, the over-compensation injuries, of minor the availability of affordable insurance —the Court’s today decision will legal revive a environment which each of these reappears hazards and threatens fiscal continued our integrity system. no-fault I do Because not believe that the lower courts erred in concluding that plaintiff has not suffered serious function, I would affirm the judg- ment of the Court of Appeals.
Corrigan JJ., and Young, Markman, concurred with J.