Petersen v. Magna Corp.

Mich 300 PETERSEN v MAGNA CORPORATION (Calendar Argued January 22, 136542 and Docket Nos. 136543. No. 7). July 31, Decided 2009. sought compensation Rick Petersen workers’ benefits under the Disability Compensation (WDCA), Worker’s Act MCL 418.101 et seq., injury working for an he suffered while for codefendant Koleasco, trucking company that had hired codefendant BCN Transportation employee Services to administer its benefits. The magistrate ruled that BCN and both Koleasco hable for were the plaintiffs compensation plaintiffs workers’ benefits and that attorney was percent counsel entitled to an fee of 30 418.315(1). plaintiffs unpaid medical bills under MCL The Work- (WCAC) Compensation Appellate ers’ Commission affirmed both rulings. initially Appeals appeal, The Court of denied leave but Supreme the Court remanded as on consideration leave granted on the issues of the division of defendants’ liabilities and (2006). attorney remand, assessment fees. 477 Mich 871 On Appeals, J., concurring, the Court of C.J. and (White, Whitbeck, J., concurring part dissenting part), affirmed the Zahra, attorney against defendants, holding WCAC’s assessment of fees imposed employers fees could be on and their 418.315(1). Unpublished opinion per insurers under MCL curiam (Docket Appeals, 17,2008 April Court of issued Nos. 273293 273294). Supreme granted appli- The Court the defendants’ appeal. cation for leave to 482 Mich 994 opinion by joined by In Chief Justice Justice Cavanagh, Kelly, opinion by joined by and an Justice Justice Hathaway, Weaver, Supreme Court held: 418.315(1) “prorate” term applies exclusively The in MCL employers and their insurance carriers. joined Chief Justice Justice stated that Cavanagh, Kelly, Legislature “prorate” intended that the term in the last sentence of 418.315(1) applies employers MCL and their insurance modify carriers. Chief Justice recommended that Court Kelly expand principles Detroit, set forth in Robinson (2000), governing depart when the Court should from the principle analysis always begin of stare decisis. A stare decisis should Magna Corporation preferred upholding precedent presumption with a compelling action, a determination whether followed course precedent. -level of A lower justification exists to overturn represent a recent cases that be afforded to deference should decisis. Chief notions of stare departure from the traditional espoused statutory ambiguity in rejected the test for Justice KELLY (2004), Comm, as Lansing Mayor v Pub Service Michigan having She concluded no basis in law. and unworkable 418.315(1) ambiguous it is because of MCL that the last sentence per- by reasonably being capable well-informed understood senses, consequently and fails to different sons in two or more attorney may among clearly parties whom fees indicate the the American prorated. also concluded that Chief Justice Kelly 418.315(1). attorney apply not to MCL rule of fees does joined by concurred in Chief Justice Weaver, Justice Hathaway, opinion that it concluded that to the extent Justice lead Kelly’s 418.315(1) exclusively applies to “prorate” in term MCL Hathaway wrote employers insurance carriers. Justice and their whole, 418.315(1), as a separately when read to state that MCL ambiguous. not Affirmed. dissenting, fully joined Justice Justice Corrigan, Markman’s dissenting Young’s

dissenting opinion part Justice and 11(B) opinion. fully joined Young, dissenting, part of Justice Mark- IV Justice Young from the dissenting opinion. further dissented Justice man’s 418.315(1) “prorate” majority’s term in MCL conclusion that the and from applies only employers their insurance carriers and opinion a that work- in Chief Justice lead the conclusion Kelly’s responsible may compensation never he deemed for claimant ers’ Young attorney incurred. Justice stated portion of the fees ordinarily responsible compensation for claimant is a workers’ litigation, portion bearing of the claimant’s the costs 418.315(1) exception to including attorney serves as an fees. MCL magistrate rule, compensation permitting general a workers’ this fees, contingent paid attorney rate prorate at the fee employer claimant, when the claimant and the between the expenses employer pay and needed medical refuses to reasonable employment. injury arising in course of out of and for an When, case, legitimate legal factual are and there as compen- respect disputed disputes workers’ to be resolved hearing claims, disputes at a before must be resolved sation was magistrate, medical treatment must determine whether who injury arising reasonable, personal needed, out of related to a 484 Mich 300 employment. and in employers the course of While should be discouraged wrongly denying benefits, from medical there is no assessing attorney against employer basis for correctly fees an for denying entitled, claims to seeking which a claimant is not or from arguable legal a resolution of disputes or factual that call into question employer’s obligation pay. This case should he magistrate remanded to the for an assessment of the issue of attorney fees under the correct standard. joined by Justice dissenting, Justice would Corrigan, Markman, 418.315(1) Appeals reverse the Court of and hold that MCL does magistrate not employee’s allow to assess an fees against 418.315(1) employer. Rather, only MCL allows a magistrate employee’s attorney to divide among an fees medical providers, magistrate when the employer has ordered the payment to make unpaid direct expenses medical to those providers. reaching contrary conclusion, In the Chief Justice adopted understanding “ambiguity” arbitrary that facilitates unpredictable judicial decision-making, judges give in which meaning to regard the law with little for the actual words of the Legislature, place judicial decision-making traditional paramount. which such words are — Compensation Disability — Compensation Workers’ Worker’s Act Attor- — ney Attorney Fees Proration Fees. “prorate,” The term statutory provision as used gives compensation magistrates workers’ authority prorate attor- fees, ney applies exclusively employers and their insurance (MCL 418.315[1]). carriers Braden) & Evans Portenga (by John A. for Rick H. Petersen.

Robert W.Macy (Daryl Royal, counsel) for Magna Corporation and Midwest Employers Casualty Com pany.

Mark A. Kidder for BCN Transportation Services, Inc., and TIG Insurance Company.

Amici Curiae:

Martin L. Critchell for the Michigan Workers’ Com- pensation Placement Facility. PETERSEN V MAGNA CORPORATION Opinion C. J. Kelly, T F. and Michael Hess, Zapala, Richard C.

Steven Company Accident Fund Insurance for Reinholm America. Marcinkoski) for the M. (by & Jones Gerald

Lacey Self-Insurers’ Association. Michigan Haddad, Kerr, Weber, J. (by PLC Patrick Russell and for the Schulte, Berg), S. and Jonathan Daniel Society. State Medical Michigan A. Mc (by & Duncan Kluczynski, Vogelzang Girtz Millan) Company. & Marine Insurance for St. Paul Fire Fink and Robert (byJoseph PLLC A. Wright

Dickinson Powell) Michigan. and Blue Shield of for Blue Cross W. Michigan for the Association

Donald M. Fulkerson for Justice. and Marcus W (by Ryan Johnson R. Stephen

Miller Asso- Michigan Hospital for the Health and Campbell) ciation. the American Insurance

Martin L. Critchell Association. in this case to granted appeal C.J. leave to We KELLY, may fees parties against

determine whom 418.315(1). conclude that under MCL We prorated 418.315(1) “prorate” applies the term MCL Accordingly, carriers. we and their insurance employers judgment Appeals. affirm the of the Court AND PROCEDURAL HISTORY I. FACTUAL BACKGROUND compen- dispute This case involves a over workers’ began working Plaintiff Rick Petersen sation benefits. 484 MICH300 Opinion by Kelly, C.J. for Koleasco, codefendant a trucking company, Feb- ruary 1997, 1997. In March Koleasco hired codefendant Transportation BCN (BCN), Services a human re- sources “employee leasing” company, to administer its employee benefits.

In November plaintiff was injured when he fell from a flatbed truck while securing load of Christmas accident, trees. After the he underwent surgery on his right foot and applied for compensation workers’ ben- efits. The following year, required he treatment for back pain, which his treating physician believed was caused by the November 1977 fall. questions

Several were taken to a workers’ compen- (1) magistrate: sation plaintiffs who was employer at (2) time of his injury, BCN or Koleaseco? was Midwest Employers Casualty Company the relevant (3) insurer for workers’ compensation purposes? was (4) plaintiff so, disabled? and if which injury caused his disability? The magistrate bifurcated these issues into two trials.

In trial, the first the magistrate ruled plaintiff was a Koleaseco employee on the date of his injury despite the fact that paid Thus, BCN his wages. because BCN had stipulated that it plaintiffs was employer, the magistrate ruled that both BCN and Koleaseco were plaintiffs employers and both were liable plaintiffs workers’ compensation benefits. appeal, On the Work- (WCAC) ers’ Compensation Appellate Commission af- firmed that ruling. (1)

In the trial, second magistrate considered was plaintiffs counsel entitled to an attorney fee of 30 percent of plaintiffs medical bills unpaid by defendant? (2) and who was responsible for paying plaintiffs future

medical and weekly benefits? With respect plaintiffs fees, magistrate ruled: Corporation Magna 305 Petersen v Opinion by Kelly, J. C. plaintiff weekly paying the

[Although was Midwest... [plain- benefits, pay bills related to to medical it refused bills of the medical injury.... The total amount tiffs] pay refused defendant which incurred... is entitled to a 30 $153,448.54.1 plaintiffs find counsel under unpaid medical bills attorney fee for these percent 315(1). Section respon- Koleaseco was BCN or respect to whether With weekly ongoing medical plaintiffs paying sible for and its insur- ruled that BCN benefits, magistrate the carrier, Midwest, primarily responsible. were ance WCAC, to the which appealed Again, parties both fees, observing: attorney the award of affirmed find, in this magistrate explicitly so failed to While question medical bills in defendant knew of the case ... trial, simply pay refused to them well in advance magistrate claiming they related. Once the were not work found, knowledge pay, given prior and refusal so awarding attorney within his discretion fees was action proper. and hence com- leasing”

Magna Corporation, “employee another Midwest, sought and Midwest leave insured pany ini- Appeals The Court of both WCAC orders. appeal the case denied the We remanded tially applications.1 granted.2 as on leave for consideration remand, affirmed Appeals On the Court evidence competent The Court found that WCAC.3 magistrate of both the findings the factual supported 1 Magna Corp, unpublished order of the Court of Appeals, v Petersen (Docket Magna Corp, 266037); v 11, Petersen April 2006 No. entered 11, April Appeals, unpublished entered order of Court 266177). (Docket No. 1, Magna (2006); Magna Corp Petersen v No Mich 871 Petersen 2, Corp No 477 Mich 871 Magna Corp, unpublished opinion per curiam of Court (Docket 273294), April 273293 and at 8. Appeals, Nos. issued Mich 300 Opinion Kelly, C.J.

and WCAC respect plaintiffs employment. fees, Regarding attorney assessment of the Court 315(1) § ambiguous held that because it does not identify entity against which the magistrate may assess such fees.4 concluded,

The Court “[W]here the remainder of 315(1)] employer [§ discusses the the [insurance] and/or carrier, it follows that the fees to be calcu- are lated or divided those plain between entities. The lan- guage of the statute does not mandate that the health care assume provider responsibility any for portion those granted appeal fees.”5 leave to proper We to consider the 315(1).6 §of interpretation 418.315(1)

II. MCL The and proper interpretation of a application statute presents question of law that we review de novo.7MCL 418.315(1), part of the Disability Compensa- Worker’s (WDCA),8 tion Act in provides pertinent part: employer furnish, furnished, The shall or cause to be to an employee personal injury arising who receives a of and in out employment, medical, surgical, the course of reasonable and medicines, hospital services or other or attendance treat- recognized by legal, they ment the of this laws state as when days inception are needed.... After 10 from the of medical section, provided employee may care as the treat with physician by giving employer of his or her choice own to the physician the of the name his or her intention treat physician. employer employer’s the The or the carrier may petition objecting physician file a to the named selected 4 Id. at 9.

5 Id. at 10. (2008). Magna Corp, Petersen Titus, 573, 578-579; Estes v seq. et MCL 418.101 Corporation Magna by Opinion Kelly, C.J. objection. If setting for the forth reasons employee and by the employee why the cause can show employer or carrier the physician of with the named treatment not continue should may choice,... magistrate order the ... employee’s the physi- named with the treatment employee discontinue the physician.... from the received pay for the treatment cian or do, the fails, neglects, or refuses so employer the If paid expense the reasonable employee shall be reimbursed of the may be made in behalf payment employee, may expenses unpaid persons to whom employee to magistrate. compensation of the workers’ owing, order magistrate may prorate compensation The workers’ [Emphasis employee. paid by the contingent rate at the fee fees added.] INTERPRETATION A. STATUTORY pri statutory interpretation. The This is a case give interpretation mary goal effect is to of such ascertaining step Legislature.9 The first of the intent language statute on the is to focus such intent Legis unambiguous, language statutory If itself. meaning presumed ex intended to have lature pressed provide The words of statute statute.10 Legislature’s intent, evidence of most reliable given every possible, effect should be as far as statutory phrase, If the in a statute.* clause, and word unambiguous, judicial language construc is certain permitted, required courts must nor is neither tion apply as written.12 the statute ambiguous, language statutory this is

However, when construing consistently it held that a court Court has 9 (2007). 589, 593; 514 Mayor, 734 NW2d Mich v Detroit 478 Brown 10 Id. 11 236; Ward, 230, 596 NW2d 119 Valley Mich v Foods Co Sun omitted). (1999) (quotation and citations marks (1995). 22, 27; ’n, 528 NW2d 681 448 Mich Club Ins Ass Turner Auto 484 Mich Opinion by Kelly, C.J. In

may go beyond plain language of the statute.13 fact, leaves the language meaning where statute’s ambiguous, duty it, it is the to construe courts giving interpretation it an that is reasonable and sen- Therefore, finding sible.14 has ambiguity important interpretive ramifications. case,

In of Appeals the Court held that the last 315(1) ambiguous § sentence of is in that it is unclear injured who is for an responsible employee’s attorney Thus, whether, fees. threshold question light of the plain language of the entire provision, the last 315(1) § ambiguous. sentence of 315(1) gives Section magistrates discretionary au- thority prorate attorney contingent fees at the fee rate paid by employee. divide, “Prorate” means “to distrib- ute, proportionately.”15 315(1), § or calculate In the term “prorate” reasonably could apply to their employers, carriers, insurance health care providers, employees seeking compensation benefits, workers’ to any com- Moreover, bination of them. § neither 315 as a whole nor any provision other the WDCA indicates the parties to whom division or of attorney distribution applies. fees

I agree Appeals with the Court of conclusion that the 315(1) § final applies sentence of employers their insurance carriers. This is interpreta- because that tion harmonizes the final sentence with the remainder of 315(1). § The final does sentence not stand alone.16It Valley, supra 236, citing Corrections, Dep’t Sun at Luttrell v (1984). 93; 14 Crary Marquette Judge, Circuit 163 NW 905 (1917). 15Random, College Dictionary House Webster’s sociis, meaning Under the doctrine of noscitur of an unclear phrase immediately word or should be determined the words sur- MAGNA CORPORATION PETERSEN V by Opinion Kelly, C.J. in its §of in the context be construed must 315(1) pro- other the statute’s with harmonized entirety and by Legisla- the intended satisfy purpose to visions ture.17 Section operates. that construction is how

Here ben- medical liability pay to employer concerns 315(1) of employment. in course injured efits to workers employers for process provides as a whole The statute the medical to object carriers to their insurance Hence, “pro- employee seeks. injured that an treatment read 315(1), when with §of final in the sentence rate” parties to the who statute, applies remainder employ- benefits: of medical the payment contest might interpretation This carriers.18 insurance and their ers remainder §of with sentence the last unifies 315(1) the statute. use of the word Legislature’s I now consider The attorney fees. respect prorating “may” As applied in nature. “may” permissive word have dis- magistrates indicates that “may” “prorate,” attorney fees. award determining whether to in cretion fees, attorney to award Hence, are allowed magistrates do so.19 they required are not but (2008). 240, 250; Couzens, NW2d 849 People rounding it. 201, 209; Petroleum, Inc, Farrington v Total responsible providers medical Markman would hold Justice 418.827, claim, support MCL attorney he cites proration In of this fees. through the nonparty employers recover provides a basis for which liability third-party attorney action. employee’s pursuing a of an efforts provided § to that in 315 similar Legislature intended a scheme Had the However, language. it did or identical § it could have used similar not do so. by using magistrates Legislature vests discretion The often discretion provisions that vest “may.” of the WDCA Other word 418.321, “may” MCL include MCL magistrates using word 418.335, 418.345, MCL 418.835. MCL 484 Mich 300 Opinion Kelly, J.C.

Likewise, word “may” prora- bears on whether a must if a magistrate tion occur does award I use “may” grants fees. would hold that the of the word attorney magistrates prorate discretion fees among employers and their insurance carriers. Should a only magistrate parties determine that one of those is liable, the magistrate may impose attorney against fees that party. should the find Conversely, magistrate multiple liable, parties may prorated fees accord- ingly. interpretation phrase “may This affords pro- rate” its full meaning.20

Nonetheless, as evidenced by the dissents in this 315(1) case, § reasonable competing interpretations of exist when language fact, its alone is considered.21 In 315(1), light § the words of of the entire statute and WDCA, clearly parties do not indicate whom a proration attorney of applies. fees As I consequence, am unable to ascertain the intent the Legislature of solely based on the of language the statute. I turn next 315(1) question to the ambiguous. § whether is 1. LANSING MAYOR v PUB COMM SERVICE This most pronouncement Court’s recent on 20 Contrary contention, interpretation to Justice Markman’s this does not Nothing “readf] authorization into the at statute... .” Post 356. in the “prorate” party apportioned definition of indicates that one cannot be zero liability. require parties A “division” “distribution” does not that both subject liability. example, to that division receive an assessment of For liability 50-50, 75-25, basis, depending could be on a allocated or 100-0 on the magistrate’s parties of allocation fault and the number of involved. Justice Markman claims I process that from the “withdrawn statutory interpretation interpretations presented.” once other are Post 315(1) multiple at This parties 365. is incorrect. Section refers to subject proration lacks an indication which of is them to a provision question. fees. No other the WDCA resolves the that I From capable being by reasonably conclude that is statute understood persons well-informed in two or more different senses. See at 331. infra Magna Corporation Opinion Kelly, C.J. lan statutory whether discerning for standard proper Mayor Lansing espoused was ambiguous is guage examined case, Court In that Comm.22 Pub Service a com required it whether to determine 247.183 MCL begin before consent government local to obtain pany Court’s to the Critical construction. pipeline ning method proper discussion its analysis was ambiguity. statutory discerning not are statutory provisions stated The Court “irreconcilably conflicts” one unless ambiguous more susceptible “equally unless a term another or definition, the meaning.”23 Applying single than “[o]nly a few observed majority Mayor Lansing truly ambiguous.”24 are provisions unsup- “ambiguity” definition Lansing Mayor’s whatsoever, been having Michigan law by any ported Schultz, Rusinek were, thin air.25 derived, it from as case only Michigan Co is the Lumber & Steele Snyder language employs that Mayor Lansing predating state did not However, Rusinek susceptible.”26 “equally suscep- equally if it is ambiguous only is language that Instead, sim- Rusinek interpretations. different tible to common law derogation held that statutes ply strictly be construed.27 must 22 Comm, 154; Lansing Mayor 840 Mich 680 NW2d v Pub Serv 470

(2004). 23 exceedingly defini having narrow Id. at 166. Since announced statutory language any find “ambiguity,” has declined to the Court tion of ambiguous. 24Id. 25 Supreme Michigan in the Postulka, The weakness Kelly & See fatal construction, statutory TM10 approach majority’s textualist Court (2008). Cooley L 289 J Prac & Clinical 26 Co, 502; Schultz, Snyder Lumber 309 & Steele Rusinek (1981). NW2d 27 Id. at 507-508. Mich 300 Opinion by Kelly, C.J. finding as a unsupported ambigu

Also threshold for ity “irreconcilably provi is the conflicts with another in Lansing sion” The language Mayor. found Lansing Mayor majority Klapp Group cited v United Ins Agency, Inc28 this definition of “ambiguity,” but sim Klapp ply ambiguous states that is “its language provi when sions capable conflicting interpretations.”29 are It requires neither an irreconcilable conflict that nor language equally susceptible to more than one inter pretation. Thus, two-pronged “equally susceptible” and “irreconcilably adopted conflicts” test in Lansing Mayor has no Michigan basis law.

Furthermore, Lansing Mayor made majority two explicit First, glaring misstatements of law. it cited for the Klapp proposition finding “ambiguity that a is a finding of Klapp say last resort.”30 did not this. Instead, Klapp held the rule of contra proferentem.31 is a Indeed, rule last resort. Klapp concluded that the at language issue in that case ambiguous, was without commenting on whether such a “good” a conclusion was or a thing.32 Wholly “bad” absent from or other Klapp, law, any Michigan indication that consideration of language ambiguous whether should be given only as a last resort.

Second, I note that the Lansing Mayor ex- majority pressly rejected the “reasonable minds” standard for discerning as ambiguity applied by the dissent Group Klapp Agency, Inc, v United Ins NW2d 447 467. Id. at 30 Lansing Mayor, supra 6, citing Klapp, supra at n 165 at 474. 31 proferentem interpretation stating Contra a rule of is contract that ambiguities against will be construed the drafter of a contract. 2 Contracts, 2d, 206, § p Restatement 105. 32 reject Mayor Lansing majority’s implication finding I that of ambiguity inherently thing, nothing is a “bad” is as it more than an aid statutory Lansing Mayor, to supra See construction. at 165-166. 313 CORPORATION MAGNA PETERSEN V Opinion Kelly, C.J. has never not, and majority “[t]hat The stated case. for ascer- resolving cases or been, standard either for How- ambiguity in the law.”33 the existence of an taining authority proposition. for this ever, the Court cited no misstatement fact, holding In this was a blatant law.34 of mythical definition it was based on

Because law, I of egregious misstatements “ambiguity” discerning statu- reject Lansing Mayor’s standard ambiguity.35 tory DECISIS36

i. STARE Lansing Mayor’s definition I that Because conclude 165-166. Id. at 11(A)(2) part opinion. of this See “ambiguity,” support of its to cite caselaw in definition Unable majority Lansing Mayor This definition was its own definition. invented majority’s finding ambiguity premised implication is a that on judges “presumptive thing it to use ‘rules of because enables “bad” ” reading subjective perambulatory policy’ “engage largely in a ” ap history.’ Lansing Mayor, supra These ‘legislative at 164-165. they judges proaches supposedly disdained allowed to were because Legislature.” policy preferences “substitut[e] their own for those of the Id. 164. at However, majority acknowledge Lansing Mayor failed its to statutory interpretation equally suscep- “plain meaning” approach subjective arbitrary legislative intent. For determinations of

tible dictionary approach may example, lead to the of one such an selection any among many Lacking may specific term. sound definition for a Legislature explanation why the was the that the chosen definition one Livonia, See, e.g., Liberty Housing Corp to use. Hill intended (2008) (“We 44, 56-57; meaning the second 746 NW2d conclude that intended.”). Therefore, Legislature [out six] is the one the way approach approach as is an that stretches is erroneous the same agree inappropriate ambiguity I where none exists. that it is find inject reading unambiguous policy of an statute. considerations into Dep’t my Enterprises, concurring opinion in Fluor Inc I stated (2007), statutory Treasury, tools of NW2d 722 484 Mich 300 Opinion by Kelly, C.J. by Michigan law,

of I “ambiguous” unsupported must ought now determine whether it to remain the control- ling discerning ambiguity for method in laws of this by I treat the definition governed state. as stare decisis of purposes analysis. for

Stare decisis is for et short stare decisis non quieta movere, by thing which means “stand decided and do not calm.” disturb the Stare decisis attempts competing balance two considerations: the need of the for in community stability legal rules decisions the need of courts past to correct errors.37 This doctrine has been part legal landscape American since country’s formation.38 that,

Alexander Hamilton wrote to “avoid an arbi- trary in it courts, indispensable discretion that by [courts] should be bound down strict rules and precedents serve to which define and out their point duty in every particular case that comes before interpretation, “ambiguity,” “binding” such as the definition of are not holding Therefore, they is the same sense as in a case. are not entitled deference, apply to the same of level stare decisis does not to them. However, Lansing Mayor purported to “hold” that its definition of “ambiguity” applicable only discerning statutory was the method for ambiguity. Furthermore, Lansing Mayor majority explicitly stated [regarding ambiguity] Fluor that “our current law is set forth in [Lansing Mayor].” Fluor, reasons, supra Perhaps at 3. 177 n for those Court, Appeals, Lansing Mayor’s as as the of well Court has treated “ambiguity” any binding See, definition precedent. e.g., like other Gardner, 41, 50; People (2008); Northville, v 482 Mich 753 NW2d 78 Toll Northville, 6, 15 2; (2008); Batko, Ltd v n Mich 743 NW2d 902 Batko v (2007) (Markman, J., dissenting); Twp Secretary 477 Mich 992 Casco State, 566, 591; (2008); Wayne Wayne 701 NW2d 102 Co v Co Comm, (2005). App 230, 244; Retirement Although disagree conclusion, apply analysis I I a stare decisis Mayor “ambiguity” Lansing analysis. purposes definition of Jur, Courts, § Am 131. 38 The can England. Healy, doctrine be traced back to medieval Stare requirement, as a decisis constitutional 104 WVaLB 56-62 Corporation Magna Opinion J.C. Kelly, century, Justice early In the twentieth them ... .”39 judges the “labor Cardozo wrote (then-Judge) every if breaking point almost to be increased would case, and one every reopened decision could past the secure of bricks on one’s own course lay not could gone had laid others who the courses foundation him.”40 before are as its boundaries rule is as solid

Although any formally that this Court recently until clear, it was not from depart it should determine when a test to established Detroit,41 Court v In in Robinson decisis. stare 2000, deciding whether question the first held decision was an earlier is whether precedent overrule Robinson, courts Next, according to decided.42 wrongly (1) practical decision defies should review whether (2) interests would work reliance workability, whether overturned, and if the decision were hardship an undue (3) longer justify facts no in the law or changes whether pre- a test Thus, enunciated decision.43 Robinson wrongly was decision questioned mised on whether analysis of decided, three-pronged a to be followed it. upholding counsels whether stare decisis nonetheless as a implemented the Robinson test was Although decision determining prior mechanism for when proven its has upheld, application should be Court fact, In an examination cursory.44 superficial 39 Hamilton) (Clinton (Alexander 78, p Rossiter 471 The Federalist No. 1961). ed, 40 (New Cardozo, Benjamin Process The Nature the Judicial N. Press, 1921), p University 149. Haven: Yale 41 Detroit, 439; 462 Mich 613 NW2d 307 Robinson v 42 Id. at 464.

43Id. 44 495, 513; Hts, See, Sterling 720 NW2d 219 e.g., Paige 476 Mich v (2006) (“[W]e changes in the law and facts no whether need not consider

316 484 MICH300 Opinion Kelly, C.J. cases the Robinson test demonstrates that not applying has the cited it for once Court as a basis upholding prior wrongly decision.45Robinson’s statement that a “invariably” decided case be overruled was a should chilling signal that a has precedent conclusion justification wrongly been decided sufficient over- ruling it.46

These facts alone suffice to show that Robinson insufficiently Therefore, I respectful precedent. longer justify precedent] precedent] [the [the because was never itself Hickman, 602, justified.”), People 6; v 470 Mich 610 n NW2d 267 684 (2004) (2002) , Detroit, 186, 19; and Mack n v 467 Mich 203 649 47 NW2d footnote). (citing afterthought Robinson in a as 45 See, e.g., Gardner, supra 61; Ream, 223, 240; People v at 481 Mich (2008); People Barrett, 125, 138; NW2d 536 750 v 480 Mich NW2d 747 797 (2008); Co, Sprinkler Trentadue v Buckler Automatic Lawn 479 Mich 378, 393; (2007); Renny Dep’t Transportation, 738 NW2d 664 v 478 490, 503; (2007); Smith, 292, 315; People Mich 518 v 734 NW2d 478 Mich (2007); Co, 28, NW2d Karaczewski v Farbman Stein & 478 Mich 38; (2007); Ctr, 732 NW2d 56 Al-Shimmari v Detroit Med (2007); 297; Comm, 731 NW2d 29 v Rowland Washtenaw Co Rd 477 Mich 197, 214; (2007); Neshewat, Haynes 29, 39; v 477 Mich (2007); Paige, supra Dep’t Transportation, NW2d at Grimes 72, 87; Hawthorne, (2006); People 475 Mich NW2d 174, 183; (2006); Ass’n, 713 NW2d 724 vAuto Club 473 Devillers Ins Mich 584; 562, (2005); People Schaefer, 418, 434; 702 NW2d 539 v 473 Mich 703 (2005); People Starks, 227, 236; 774 v NW2d 473 Mich NW2d 701 136 (2005) ; Garg Health, 263, 285; v Macomb Mental 472 Mich 696 NW2d 646 (2005); People Davis, 156, 169; (2005); v 472 Mich 695 NW2d 45 Neal v Wilkes, 667; 661, (2004); Hickman, supra 610; 470 Mich 685 NW2d at 648 Lively, 248, 256; People (2004); Moore, v People 470 Mich 680 NW2d 878 v 56, 69; (2004); Hayne Dep’t Police, 470 Mich 679 NW2d 41 v State 468 302, 314; Mack, (2003); supra 203; Sington Mich 664 129 NW2d at v Chrysler 144, 161; Corp, (2002); People Petit, 467 Mich 648 NW2d 624 v 624, 633; (2002); People 335, Cornell, 466 Mich NW2d 193 648 v 466 Mich 358; (2002); DaimlerChrysler Corp, NW2d 646 127 Robertson v 732, 756; (2002); City Park, 641 NW2d 567 v 465 Pohutski Allen Mich 693; 675, (2002); Comm, 641 NW2d v Nawrocki Macomb Co Rd 463 143, 158; (2000); Mich 615 NW2d 702 v Great & Mudel Atlantic Pacific Co, Tea Mich NW2d 607 46Robinson, supra at 465. Magna Corporation by Opinion J.C. Kelly, back favor of by shifting it the balance modify would list of factors to on Robinson’s expanding precedent decisis. applying stare consider analysis should hold that a stare decisis I would upholding always begin presumption action. course of preferred involved is precedent effectively until should be retained presumption The justifica- compelling the conclusion that a rebutted precedent. to overturn the tion exists Robinson, contrast, presump- contained no such of Robinson Moreover, applications the Court’s tion. never considered. presumption that such a was suggest once a case was initially applied, if had been Even it decided, any wrongly presumption been deemed to have would upholding precedent disappeared.471 in favor of reiterate that a rebuttable approach reject precedent.48 upholding exists favor of presumption paid should be arises what deference question The existing used to overturn in which Robinson was cases I that a level of deference should believe lower precedent. they represent a accorded to these cases because of stare decisis. In the traditional notions departure from (“[T]he e.g., Paige, supra See, n instances in which we at 512 might precedent]... decline to overrule [erroneous is when it would Hickman, chaos.”) supra (noting added); (emphasis at 610 n 6 produce necessary prece special justification erroneous to overrule that no (2004) Nutt, 565, 575, 591; dent); People compelled to overrule erroneous precedent); (concluding that the court is Petit, supra (stating that courts should overturn erroneous at 633-34 decisions). 48 recognize with Robinson that stare agree decisis is “not to he I overruling mechanically prevent from earlier applied to forever the Court Robinson, decisions,” it “an inexorable command.” erroneous nor is that, analysis supra However, again if our stare decisis at 463-464. I note every applied, time it is overruling precedent stare leads to Court command,” meaningless rather a an “inexorable but decisis becomes not exercise. 484 Mich J.C.

Opinion Kelly, Constructors, Pena,49 Adarand Inc v the United States Court addressed distinction Supreme expressly be- tween consideration well-established law cases representing precedent: recent from departure pointing appli It is worth out the difference between cations stare decisis in this case and in Parent Planned Casey. Casey explained Southeastern Pa v hood how considerations of stare inform the whether decisis decision long-established precedent overrule become inte has grated Overruling precedent into the fabric law. of that naturally may consequences kind have for “the ideal of the addition, precedent likely rule of law.” In such to have reliance, engendered Casey as substantial was true in itself. (“[F]or developments, two decades of economic and social organized people have relationships intimate and made places choices that define their their views themselves and society, availability in reliance on the abortion fail.”). case, contraception event that should But in this as we explained, precedent kind, have face a we do not of that Broadcasting departed because Metro itself our prior from recently. By quite refusing did so cases—and follow Metro then, Broadcasting, depart we do not from fabric of law; restore we it. We also note that reliance case on a that has departed recently precedent likely minimal, from to be where, particularly here, as the rule set forth in case is event[50] unlikely primary any to affect conduct in Furthermore, the Court stated: past practice supports

Our in similar situations our today. Dixon, action In United States v we overruled the Corbin, Grady Grady recent case of v because “lack[ed] “wholly constitutional roots” was inconsistent Supreme precedent.” earlier Court In Solorio United States, we Parker, overruled O’Callahan v which had rejected caused “confusion” and had “an unbroken line of Constructors, Pena, 2097; Adarand Inc v S US 115 Ct 132 L Ed 2d 158 (citations omitted). Id. at 233-234 altered Magna Corporation Opinion by Kelly, C.J. TV, v in Inc to 1960.” And Continental from 1866 decisions Arnold, Inc, States v we overruled United Sylvania GTE largely abrupt unex Co, “an and which was Schwinn & “[t]he precedent, and of which departure” from plained See scholarly opinion been critical.” weight ha[d] great of (overruling Maryland, v also, Booth e.g., Payne v Tennessee City Dept Gathers, York Monell v New Carolina v and South overruling Pape, v be (partially Servs Monroe Social of practice” “departure prior that a from Monroe was cause reliance); & Co v engendered substantial had not Swift Safety Department Public (overruling v Kesler Wickham precedent” restore the Utah, “pre- Kesler to reaffirm traditionally has . . this Court to the “view. which law cases).[51] taken” older a de- applying for Thus, support there is substantial that when precedent favor presumption creased from departure a recent represents itself precedent established caselaw.52 prior exists a be there should whether inquiry

The next A com- overruling precedent.53 for justification compelling 51 omitted). (citations altered or at 232-233 Id. implicitly Supreme decisions also acknowl United States Court Other precedent precedent is entitled to a edge overruled recent that that itself Sorrell, 230, 244; See, presumption. e.g., US 126 S Ct Randall v reduced (2006) only (stating precedent 2479; should he L Ed 2d 482 where, cases, especially exceptional “[t]his true as overruled here, through principle and reiteration over become settled iteration has time”) added); IBM, (emphasis 517 US long period United States a (1996) 856; 1793; (declining 2d 124 to overrule case 116 S Ct 135 L Ed (emphasis controlling years”) precedent over 80 it had “been because for added); Highways Transportation, Dep’t 483 US v Texas & Pub Welch (1987) 2941; (declining 468, 493-494; to overrule L Ed 2d 389 107 S Ct exception precedent without this Court that had “been adhered to West, added); Humphries, century”) (emphasis and CBOCS Inc almost (2008) (declining 442, 452; L Ed 2d 864 128 S Ct 553 US issue). interpretation” at of the statute overturn “the well-embedded precedent compelling justification is consis Requiring to overrule jurisdictions, United States but also with tent not with most other 484 Mich 300 C.J. Opinion by Kelly,

pelling justification is not a mere preceden- belief that a tial case was wrongly Court, decided or that as currently composed, would have decided the case differ- ently. Rather, in determining whether a compelling justification exists, the Court should consider several criteria, which, evaluative none of standing alone, is dispositive. (1)

These include, criteria but are not limited to: whether the rule proven has intolerable because it (2) practical defies workability, whether reliance on the rule is such that overruling it would cause a special (3) hardship inequity, whether related principles of law have so far developed since the rule pronounced was (4) that no more than a remnant of the rule survived, has whether facts and circumstances changed, have so or come to be seen so differently, as to have robbed the old significant (5) rule of application justification, or whether jurisdictions other have decided similar issues in a differ- (6) ent manner, whether upholding the rule is likely result serious detriment prejudicial to public interests, (7) whether the prior decision was an abrupt and largely unexplained departure from precedent. all

Not of these factors will be applicable in every case. Nor is there a magic number of factors that must favor overruling a case in order to establish the requisite com- pelling justification. Rather, I believe that the conclusion about whether these support factors finding a compelling justification should be reached on a case-by-case basis.

ii. APPLICATION OF STARE DECISIS TO LANSING MAYOR As above, stated I begin my stare decisis analysis with a presumption favor of upholding precedent. Casey, e.g., Court Planned Parenthood v Supreme precedent. See, 505 US 112 S Ct 120 L Ed 2d 864; Magna Corporation Opinion by Kelly, C.J. Only compelling justification exists should the if a Although Lansing prior decision. Court overrule respect Mayor wrongly defini- decided with to the was “ambiguity,” this fact does not constitute the tion of requisite compelling

justification Instead, to overrule it. additional factors to determine we must examine compellingjustification to over- whether there exists rule it. discerning

First, I consider the method for whether proven ambiguity Lansing Mayor has intolerable workability. practical I it defies believe that it because Intrinsically, analytical approach interpret- does. meaning,” ing “plain the basis of their statutes on disagree meaning where reasonable minds on what that givesjudges is, is unworkable. This standard unfettered pick among “plain discretion to meanings” choose available dictionary definitions, and thus sheds light Legislature statutory little language on what the intended potentially arbitrary

to mean.54It also leads to injects instability into outcomes the law. justices

Moreover, the mere that different of this fact judges Appeals, judges Court, and trial Court of suggests disagree meaning statutory language on the ambiguity Allowing judge pick one exists. meaning meanings among equally plausible severál statutory using rules of construction is without quite simply speculation. an exercise in As Justice Supreme Stevens of the United States Court stated: judge purpose [T]he “minimalist” who holds that the may only language [a] statute be learned from its retains greater judge guidance discretion than the who will seek 54 (“It J., See, e.g., Fluor, supra concurring) 4 is a at 189 n (Kelly, language that the of a statute can have one reason bizarre notion split meaning separate independent four entities have on its able when interpretation.”). correct

322 484 Mich 300 Opinion by Kelly, C.J. every statutory interpre from reliable source. A method of deliberately uninformed, tation that and hence uncon strained, judge’s policy increases the risk that own preferences process.[55] will affect the decisional I share Justice Stevens’s concerns and believe that Lansing Mayor’s “ambiguity” definition of is inher- ently unworkable.

I application also note that of Lansing Mayor’s definition of “ambiguity” has never once led the Court to find statutory language ambiguous.56 If a rule of statutory interpretation inevitably leads to the same result in each case in which it is such a applied, rule is Ltd, States, 176, 192; 1587; BedRoc v LLC United 541 US 124 S Ct (2004) (citations (Stevens, J., L dissenting) 158 Ed 2d 338 quotation omitted). marks 56 See, e.g., Fin, Dimmit & Touche, Owens Inc v Deloitte & 481 Mich 618; (2008); Network, 153; 752 NW2d 37 Ross v Blue Care 480 Mich (2008); Comm, 75; NW2d 828 v Wesche Mecosta Co Rd 480 Mich (2008); Ernsting College, (2007); NW2d 847 v Ave Maria 480 Mich 985 Trentadue, supra; City, 180; Lash v Traverse 479 Mich 735 NW2d 628 (2007); Brown, supra; Renny Dep’t Transportation, 490; v 478 Mich (2007); Comm’rs, 734 NW2d 518 South Haven v Van Buren Co Bd 518; (2007); Ed, Mich 734 NW2d 533 v Omdahl WestIron Co Bd 423; (2007); Detroit, Mich 268; 733 NW2d 380 Bukowski v 478 Mich (2007); Karaczewski, supra; Fluor, supra; Rowland, NW2d 75 supra; Peals, People 636; (2006); Paige, v 476 Mich supra; 720 NW2d 196 Ins Ass’n, 55; Cameron (2006); v Auto Club 476 Mich 718 NW2d 784 Ford Woodhaven, 425; (2006); Motor Co v People 475 Mich 716 NW2d 247 v Derror, 316; (2006); Williams, 475 Mich People 715 NW2d 822 v 475 Mich 245; (2006); Yamat, People 49; 716 NW2d 208 v 475 Mich 714 NW2d 335 (2006); Grimes, supra; Monaco, Michigan 48; v 474 Mich 710 NW2d 46 (2006); GP, Regency, LLC, 36; Ostroth v Warren 474 Mich 709 NW2d 589 (2006); Governor, 11; (2005); Co Rd v Ass’n 474 Mich 705 NW2d 680 Devillers, supra; Yackell, 520; (2005); Reed v Ayar 473 Mich 703 NW2d 1 Distributors, 713; (2005); v Foodland 472 Mich 698 NW2d 875 Casco Twp, supra; Co, 408; Elezovic v Ford Motor 472 Mich 697 NW2d 851 (2005); Integon Co, 207; Jarrad v Nat’l Ins 472 Mich 696 NW2d 621 (2005); Atkins, 679; (2004); Neal, Roberts v 684 NW2d 711 Barbee, supra; People 283; (2004); Lively, 470 Mich 681 NW2d 348 supra; People Laney, (2004); Lansing Mayor, supra. Magna Corporation by Opinion Kelly, J.C. this factor innately Accordingly, weighs unworkable. strongly abrogating Lansing Mayor favor of definition.

Second, I the rule examine whether reliance on that it a overruling special hardship such would cause I that inequity. litigants reasonably believe have Lansing Mayor’s “ambiguity.”57 relied on definition of application potentially statutory Its leads to a different than one based on alternative defini- interpretation Hence, I rejecting tions. conclude that the definition may litigants current who have relied on it. prejudice

However, I recognize litigants also that have contin- discerning ued to on standards for ambi- rely previous This reliance is also reasonable the incon- guity. given definition,58 application Lansing Mayor’s sistent as the disagreement proper well as over the definition of filings A review of and lower courts demonstrates that this Court statutory post-2004 involving interpretation, litigants cases often cite Lansing Mayor applicable “ambiguity.” for the definition of Jackson, Compare, e.g., Morgan Michigan, City Kinder LLC v (2007) (“[W]hen 159, App 163-164; NW2d a statute is ambiguous respect on its face and reasonable minds can differ with to its judicial meaning, necessary construction is determine intent Legislature.”), Holly Holly 461, 474; Village Twp, App (2005) (“Although may reasonable differ minds on the 3, interpretation of subsection that is not the test to determine whether statutory ambiguity justifies judicial ‘Rather, provision construction. ambiguous only “irreconcilably conflictEs]” the law is if it with another provision, equally susceptible single ... or when it is to more than a ”) (citations omitted). meaning.’ Callahan, Supreme As the United States Court stated in Pearson v “[wjhere 808, 818; (2009), L 555 US 129 S Ct 172 Ed 2d 565 questioned by decision has been members of this in later decisions Court courts, application and has defied consistent the lower these factors (Quotation weigh punctuation in favor of reconsideration.” marks and omitted.) Thus, despite reliance on the new and old definitions of “ambiguity,” noteworthy Supreme it is that the United States Court has application held that inconsistent of a new rule favors reexamination of that rule. 484 Mich 300 J. C. Opinion Kelly,

“ambiguity” among justices of this Court.59 Such surprising given Lansing Mayor’s reliance is not vastly definition is so different from the definitions of “ambiguity” preceded years.60 it for more than 150 fact, In despite explicit holding, Mayor its did Lansing any not overrule or cite cases that previous addressed the proper discerning ambiguity. method for

Nevertheless, because Lansing Mayor stands as the most recent statutory declaration how discern ambiguity, litigants reasonably relied on it for this point. I therefore weighs conclude that this factor moderately in upholding favor of the definition.

Third, I consider whether related principles of law have so far since the developed Lansing Mayor defini- tion of “ambiguity” pronounced only was that a rem- nant of the definition has survived. This factor is inapplicable analysis to the stare decisis in this case. The definition of “ambiguity” judicial is a tool of construction. Its relevance ambiguity is to discern or Thus, the lack of it a given statute. the definition “ambiguity” stands inherently alone and is not related to other principles Accordingly, of law. this weighs factor neither in against favor of nor replacing the Lansing Mayor definition.

Fourth, I examine whether facts and circumstances changed, have so or differently, have come to be seen so as rob the old definition of significant justification. This factor practicalities.61 focuses on real-world How- Williamson, 144, 152, 173 4; See Stone v & n (2008). See, e.g., Whitaker, Bidwell v 1 Mich 469 61 See, Casey, e.g., supra (discussing at 860 how advancements in Wade, 705; medical treatment since Roe 410 US 93 S L Ct 35 Ed [1972], underpin 2d 147 was decided have not rendered the “factual obsolete).

nings” holding of Roe’s central PETERSEN V MAGNA CORPORATION Opinion by Kelly, C.J. ever, “ambiguity” definition of is not beholden to the underlying facts and circumstances of a given case. Accordingly, because the definition of does “ambiguity” concerns, not I implicate practical do not believe that weighs factor favor of or against replacing the Lansing Mayor definition.

Fifth, I consider jurisdictions whether other have de- cided similar issues a different manner. My review indicates that Lansing Mayor’s “ambiguity” definition of is unsupported by fact, other In any jurisdiction. not a single jurisdiction, federal, state or requires irreconcil- able conflict provisions between language equally susceptible to more than one meaning before finding statutory ambiguity.62 Accordingly, this factor weighs strongly in rejecting favor of the Lansing Mayor definition.

I note factor, the sixth whether upholding the Lansing Mayor definition is likely to result in serious detriment prejudicial public interests, has no bearing on this case. As previously stated, the definition of “am- biguity” is merely a tool of statutory interpretation. As such, application its has no relevance public interests because the definition of “ambiguity,” standing alone, does not any dictate course of action in a particular case. I

Finally, consider whether the prior decision was an and abrupt largely unexplained departure from prece- earlier, dent. As noted Lansing Mayor’s definition of “ambiguity” is nothing fiction, more than a legal wholly unsupported by any Furthermore, law. represented it a decisive and abrupt shift from precedent without rec- ognition of the prior standards for discerning statutory ambiguity. this Accordingly, weighs factor heavily favor of abrogating Lansing Mayor’s definition of “am- biguity.” post

62 See at 377. 484 Mich 300 Opinion by Kelly, C.J. factors, the aforementioned my analysis

Under “ambiguity” proven definition of has Lansing Mayor’s unworkable, jurisdictions, other unsupported from unexplained departure an represents abrupt Michigan, relied on in Although it has been precedent. Accordingly, I reliance has been uneven and short-lived. exists for re- compelling justification conclude that a placing it.63 analysis. my decisis I offer the Justice Markman has criticized stare

following response. (1) supra I at n I continue to believe that tools of As state statutory interpretation, “ambiguity,” such as the definition of are not However, to stare decisis Justice other entitled status. Markman, Court, Appeals, have members of this the Court of and lower courts Lansing Mayor’s “ambiguity” fully treated definition of as entitled to Hence, thorough analysis a of that case’s definition it. See id. “ambiguity” precedential appropriate, even if its worth not mandated. (2) fealty My speaks stare decisis for itself. As this evidenced that, opinion, thorough because I find after a examination of the factors, justification compelling overruling precedent relevant a exists for majority’s approach do I do so. This stands in stark contrast to the former decisis, opinion. to stare as shown at notes 44 and 47 of this previous majority (3) Justice Markman claims that “when the over- precedent, it ruled a was to ensure that the decisions of this Court more closely judgments people’s legislative repre- reflected the elected simply personal . . . .” at This is a reflection sentatives Post of his 391. justices opinion and that of the who shared his view in those cases. As earlier, majority’s overrulings respect indicated the former showed little developed superficial for the doctrine of stare decisis and rule in They many Robinson to deal with it. disdained cases that had stood for years majority’s before the former ascension to bench. (4) Contrary contention, ignored to Justice Markman’s I have not any precedent comprehensive response of the cases he cites. For a issue, my concurring opinion Justice Markman see on Potter 397, 426-429; McLeary, Mich 774 NW2d (5) joined opinion Markman claims that I have never Justice justification” “compelling upholding prior articulates decision wrongly surprise, I believe was decided. This comes as no however. The justification finding compelling requisite overruling precedent of a a as Magna Corporation v Opinion by Kelly, C.J. 2. THE PROPER METHOD OF DISCERNING AMBIGUITY Having rejected the Lansing Mayor definition of I “ambiguity,” now iterate proper method of dis- cerning statutory ambiguity. Lansing Before Mayor was decided, Michigan courts used several analogous varia- statutory tions of interpretation. For example, In re MCI Telecom Complaint,64 we held that “[s]hould statute be ambiguous on its face ... so that reasonable minds could differ with respect to its meaning, judicial construction appropriate to determine the mean- ing.”65 This Court has applied the “reasonable minds” standard on numerous other occasions.66 Michigan has never during my years justice. been the standard in as a require justification compelling Robinson did not precedent. to overrule (6) necessary depart Justice Markman’s claim “find[] that I it from 150-year [regarding old standard previously decisis] stare [I] hopelessly hailed” is joined off the mark. Justice Markman himself opinion Robinson, unprecedented Court’s which established an test for evaluating prior objected it, Although decisions of the Court. I I subsequent See, followed e.g., Perry Robinson in Golling Chrysler cases. v Plymouth Inc, (2007) Jeep, 62, 71; J., Mich 729 NW2d 500 (Kelly, Moreover, dissenting). my position Rowland, entirely consistent opinion. Rowland, with this As I stated in [of “the doctrine decisis] stare persuasive carries always required such force departure that we have precedent supported by from special justification.” to be Rowland, some supra 253-254, citing IBM, supra. at Only United States v now do I expand upon Robinson and “compelling define the boundaries of a justification” because of Robinson’s precedent. insufficient deference to (1999). Complaint, 396; In re MCI Telecom 460 Mich 596 NW2d 164 Cavanagh Id. at opinion 411-412. Justice authored the in In re MCI. signing Also it were then-Chief Justice Justices Corrigan, Weaver, Young myself. participate Justice did not in the Taylor, Brickley, case. 66 See, e.g.People Petty, 108, 114; (2003); v 469 Mich People 665 NW2d 443 Warren, 415, 427; (2000); 462 Mich 615 NW2d 691 Yaldo North Pointe Co, 341, 347; (1998); Ins Balardo, 578 NW2d 274 Sam v Petty, 418-419 n authored Justice notably signed by was then-Chief Justice Cavanagh, Justices Corrigan, 300 484 MICH

328 Opinion Kelly, C.J. employed “doubtful” stan also This Court has ambiguity deciding In v exists. Smith whether dard “[w]here City Rapids . . . Comm,67we held that Grand meaning, language is of doubtful of a statute looking give construction it a reasonable court should thereby, object purpose and the to be subserved sought accomplished and nec and its occasion to be essity.”68 “susceptible”

Finally, has used a stan- this Court interpretation, Applying we held this method dard. “[i]t a statute is unclear and that is where susceptible interpretation one to more than judicial correspond- These construction is allowed.”69 ambiguity ing approaches evaluating statutes for Michigan throughout have endured in caselaw nineteenth and twentieth centuries.70 discerning ambigu-

These historical standards for ity easily analogous. The crux of are reconcilable and that, minds” standard is when two “reasonable reasonably meanings persons afford different statutory language, ambiguous. it As for the suggests standard, it that a statute is “doubtful” ambiguous language questionable when its is of meaning. “susceptible” unclear The standard is self- myself. Yet Justices Young, Markman, Taylor, Weaver, Taylor, apparently ignore Petty chose and Markman Young, Corrigan, Lansing Mayor progeny and its the “reasonable minds” standard Mayor’s “ambiguity.” applying Lansing aberrant definition of Comm, 235; Rapids City v Grand 281 Mich 274 NW 776 Smith (1934). omitted). (citations at 240-241 Id. People Morris, 326; v 450 Mich 537 NW2d 70 See, MCI, Sam, Lansing Lansing e.g., supra; supra; City In v re Detroit, G H & M R Co, 641; (1959); People Twp, v 356 Mich 596; (1924); Crary, supra; 228 Mich 200 NW 536 Borden Fletcher’s (1902); Ruhl, 38; Estate, Lane v 91 NW 145 Bidwell, (1894); supra. NW 347 Magna Corporation Opinion by Kelly, C.J. that, explanatory if a statute is susceptible to more than interpretation, one it ambiguous.

I adopt “ambiguity” definition of all encompasses three of the aforementioned well-established standards for determining ambiguity.71 I Specifically, would hold:

[W]hen there disagreement can be reasonable over a meaning, or, it, statute’s put as others have when a statute is capable being reasonably understood well-informed persons senses, in two or ambigu more different [a] statute is example, ous. For this Court has concluded [are] that statutes ambiguous when one word in the statute has an unclear meaning, when a statute’s interaction with another statute meaning unclear, has rendered its application or when of the statute to application facts has rendered the correct uncertain.[72] statute This gleans standard the fundamental principles from minds,” “reasonable “doubtful,” and “susceptible” 71 Justice Markman ambiguity “[a] claims that facile resort to affords judge readily acting beyond available scope means of of his or ” authority exclusively ‘judicial her power.’ exercise Post at 366. “judicial It seems obvious power” that the authority must include the interpret interpret ambiguity statutes as appro written and where priate. Also, “judicial power” misuse of certainly our can occur where ambiguity judges judicial is never found and use few tools to discern they plain what language. believe to be Moreover, questions Justice arguments [I] “what... have for Markman substantially expanding range judicial decision-making____” of Post at “argument,” 376. I however, do not need an my to defend definition of “ambiguity,” supported by as it is every a multitude of cases in state and every jurisdiction. 73, 74, federal opinion. See notes and 75 of this To the contrary, it is any justification Justice Markman who fails to advance for the “ambiguity” definition earlier, of that he favors. As indicated that definition any precedent whatsoever, was based not on but rather derived from thin air. passionately “fair,” While he post 379, decries that his definition is at “grounded logic 375, sense,”post and common legal principle at whether a “logical” highly subjective. is “fair” or Its fairness comes into serious question when it has no basis in the law. 72 Freight System 21, 38; Michigan, Yellow Inc v 627 NW2d (2001) (citations J., dissenting) omitted), 236 rev’d sub nom (Cavanagh, Transp Michigan, Yellow Inc v 537 US 36 484 Mich 300

330 Opinion Kelly, C.J. variation, by in some applied, been tests. It has the federal circuit all country,73 in the other state every 73 (Ala, 2001); Holberg, State See, So 2d 833 e.g., Bank v 789 AmSouth 55; Gomez, (Alas, 2001); 212 Ariz 127 P3d v Saathoff, State v 29 P3d 236 Yamaha, (2006); Corp, 344 v Richard’s Honda Yamaha Motor USA 873 Exam’rs, (2001); 17 44; Hughes Architectural v Bd Ark 356 38 SW3d of Nieto, (1998); 624; 763; v 993 Rptr 952 P2d 641 State 4th 72 Cal 2d Cal Inc, (Colo, 2000); Companies, 286 McLennan State v Marsh & P2d 493 Mall, Inc, (2008); Independence A2d 454; 940 LeVan v 944 A2d 315 Conn 276, (2001); (Del, 2007); Huggins, Aldrich v 802 So 2d 277 State v 929 State, (2001); 461; 91 City City, Barnett v Ga 542 SE2d 102 Lumber 273 of 471; (1999); Yzaguirre, 20; 144 163 v Idaho P2d 1046 State Hawaii 979 (1997); 536; (2007); BC, In re Ill 2d 680 NE2d 1355 In re 176 P3d 1183 Bainbridge (Ind, 1997); City Lehman, v Waterloo NE2d 702 690 Paul, 658; (Iowa, 2008); Kan 175 P3d 840 State v 285 749 NW2d 245 Inc, Ky (Ky App, (2008); & Haas 929 SW2d 741 Cabinet v Rohm Revenue (La, 2001); Stalder, 1996); In re Estate So 2d 573 Burnette v 789 State, 539; (Me, 2008); v 395 Md 910 A2d Kingsbury, A2d Twine 946 389 Comm, 814; (2006); 857 v Civil 447 Mass Town Falmouth Serv 1132 (Minn, (2006); Hosp, 379 v Cloud 598 NW2d 1052 Amaral Saint NE2d (Miss 1999); Sons, Inc, App, 1999); 735 So 2d 1131 v Townsend & Dawson Ass’n, (Mo, 2006); Graham, Montana Contractors 204 SW3d 655 State v 392; (1986); ex Dep’t Highways, 715 P2d 1056 State rel Inc v 220 Mont (1947); Marsh, 1; Chanos v Nevada Tax 149 Neb Johnson v Baker, 186; (Nev, 2008); Comm, NH 908 A2d 806 In re 181 P3d 675 Inc, 460; (2006); Dodge, Fairway Dodge, NJ 924 A2d LLC v Decker 154; (2007); (2007); Zager, P3d 141 Charter Maestas v 141 NM 13; 578; Supp City Buffalo, NE2d 460 815 NY 2d Dev Co v 6 NY3d 680; (2003); Walberg (2006); Thomas, App 589 SE2d 419 v 161 NC Morris (ND, 2008); Scarpelli, Walberg, 91 Ohio St 3d NW2d 702 Clark YDF, Schlumar, Inc, (Okla, (2001); 271; Inc v 136 P3d 744 NE2d 719 2006) (1994); ; Pridgen Cooper, v Parker 319 Or 874 P2d 822 State v (2006); Dept 405; Corp Corp, 422 Unistrut v 588 Pa 905 A2d Hannifin (RI, 2007); Kennedy Training, Carolina v South & 922 A2d 93 Labor (2001); Schaefers, 339; Sys, Zoss v 598 345 549 SE2d 243 Retirement SC (Term, 2005); Barrett, (SD, 1999); In re v 171 SW3d 822 NW2d 550 Sallee (Tex, 1999); Media-Paymaster Co, Martinez v P R 998 SW2d 212 Missouri (Utah, Saints, Latter-Day 164 P3d 384 Jesus Christ Plus/Church of 2007) Communications, 416; Sprint ; Corp 172 Vt Power v Green Mountain 316; (1985); Lukhard, (2001); 84 229 Va 330 SE2d A2d 687 Brown v 779 655; Fighters, 2d 818 P2d 1076 Int’l Fire 117 Wash Yakima v Ass’n of Inc, 484; Pharmacy, (1991); Larrys 220 W Va 647 SE2d Phillips Drive-In v (1996); Story Williams, 479; (2007); Wis 2d v 198 920 State 1988). State, (Wy, v 755 P2d 228 331 V MAGNA CORPORATION PETERSEN Opinion by Kelly, J.C. Court.75 Supreme United States courts,74 and the 315(1) § B. APPLICATION TO 315(1) because the ambiguous § is I believe reasonably being understood capable statute is senses. in two or more different persons well-informed before, could reason- “prorate” the term As mentioned their insur- ably apply employers, be understood and to providers, employees health care providers, ance Indeed, § 315 compensation workers’ benefits. seeking who, are silent as to entirely and the entire WDCA to a of attor- among subject proration these parties, sources, any extra-textual determina- ney fees. Absent intent becomes a mere exercise Legislature’s tion of the 315(1) § Thus, having found that speculation. sources to may I now look to extra-textual ambiguous, interpretation.76 aid its 74 (CA 1993); O’Neil, 292, 1, See, e.g., v 11 F3d 297-298 United States (CA 91, 2, Muszynski, Council v 268 F3d 98

Natural Resources Defense (CA 259, 3, 2005); 2001); Phelan, Newport News v 419 F3d 264 Dobrek (CA 2004); Brown, 245, 4, Dry Shipbuilding v 376 F3d 248 & Dock Co (CA 5, 1997); Lowe, 399, v v 118 F3d 402 Saxion United States 1996); Williams (CA Inc, 553, 6, Banning, Titan-C-Mfg 72 F3d 560 v 86 (CA Co, 552, 7, 1995); Design Ins Co v Chi Ins F3d 554 Professionals (CA 2006); States, 906, 8, 454 F3d 910 Mt Adams Veneer Co v United (CA Prisons, 9, 1990); 339, Wright v Fed Bureau 451 896 F2d 342 (CA 1231, 1235 10, 2006); Transportation Mgt Corp v Comm’r F3d Med (CA Service, 1364, 11, 2007); United Internal Revenue 506 F3d of States v 1234, Villanueva-Sotelo, 11; App US 515 F3d DC (CA Fed, (2008); Justice, Butterbaugh Dep’t 336 F3d 2003). 75 See, 243, 258; 904; e.g., Oregon, L Ed Gonzales v 546 US 126 S Ct (2006); Payne, 88, 99; Houghton L Ed 888 2d 748 194 US 24 S Ct noteworthy in this case I find it that none of the dissents 315(1) unambiguous any § under of the historical characterizes as discerning ambiguity the definition enunciated standards Lansing Mayor.

332 484 Mich 300 C.J. Opinion by Kelly,

1. HARMONIZATIONWITH THE WDCA 315(1) I seek an interpretation §of that is in accord the principles underlying the WDCA as a whole. The Thus, act is remedial in nature.77 where ambiguity and judicial exists construction of the act is necessary, we construe the act’s liberally terms to grant rather than deny benefits to injured workers.78 This canon of statutory construction is deeply embedded in both American and Michigan jurisprudence.79

The WCAChas explicitly recognized the importance of holding employers and their insurance respon- carriers 315(1). a proration sible for of attorney fees pursuant §to In Harvlie v Jack Post Corp, stated, the WCAC “[T]he purpose of attorney [the] fee provisions merely ... is not to assure that a claimant’s attorney is but paid, also to deter employers breaching statutory their duty to from treatment to provide medical injured workers.”80

I find this reasoning persuasive and applicable to this case. If employers and their insurance carriers are not held accountable for a prorated fees, share of they will an have incentive to deny medical benefits.81 However, Justice concurring opinion, in her opines that Hathaway, 315(1) § unambiguous. provision ambiguous A claim that a unambiguous accompanied by is best a discussion of what constitutes statutory ambiguity or lack thereof. Yet Justice Hathaway fails to address step process statutory interpretation. 77 Chrysler (1994). Corp, 1, 18; Sabotka v 447 Mich 20 n 523 NW2d 454 Industries, 502, 511; Paschke v Retool 445 Mich 519 NW2d 441 (1994), citing Co, 172, 191; Bower v Whitehall Leather NW2d 640 Haynes, supra (Kelly, J., See concurring). at 42-44 Corp, 5, Harvlie v Jack p citing Post 2006 Mich ACO Lahti v (1959) Fosterling, added). (emphasis 315(1) argue my interpretation The § dissents penalize will employers validly employee’s who contest an claim for benefits. This is PETERSEN V MAGNA CORPORATION Opinion Kelly, C. J. deny injured employee’s They tempted will be that, hope subsequent in the coverage for request they And if found liable. even they will not be litigation, liable, they responsible found would were fees, attorney not for medical but expenses actual denial of valid claims. wrongful their despite a Likewise, pay forced to injured if workers were fees, attorney their ulti- of their own prorated portion be reduced below their actual costs recovery mate could treatment. Such a result would securing of medical of the WDCA. goal violate the remedial EMPLOYEDSIMILARREASONING 2. CASELAWHAS supports my interpretation also Caselaw 315(1). every previ- I find the fact that persuasive § 315(1) to analyzed respect § with ous case that has attorney employed reasoning fees has proration mine. similar to proration

The first considered the Appeals Court 315(1) Boyce § fees v Grand attorney pursuant Nothing opinion requiring a not the case. in this can he construed as magistrate prorate against employer employer’s fees an or the Furthermore, wrongful even if there a denial insurance carrier. were 315(1), magistrate § is vested of medical treatment under Thus, treatment, prorate discretion not to fees. the denial of a whether not, own, employer or its valid or on its does not assure that an attorney subject proration a fees. insurance carrier will he Young compensation correctly Justice asserts that “a workers’ ordinarily responsible personal attorney claimant is for his own fees.” 315(1) However, attorney § at 347. deals not with fees for Post attorney compensation generally, specifi- claim but with fees workers’ failure, cally employer’s neglect, pay or refusal to for related to medicines, medical, surgical, hospital services and “reasonable recognized by as attendance or treatment the laws of this state other 418.315(1). Thus, they legal, when are needed.” MCL a workers’ compensation generally responsible or her claimant remains for his 315(1). governed by § fees unrelated to the matters MICH Opinion Kelly, C.J. 82 There, Co Rapids Asphalt Paving plaintiff argued provider his health care should be held responsible portion of his attorney fees. The Court rejected this argument, noting that a party does not become liable for attorney merely by fees accepting the benefits of an attorney’s services.83 The Court also ruled that 315(1) § could be construed to require either the em- ployer or its insurance carrier pay a plaintiffs attorney fees.

Finally, the Court noted that Administrative Rule 14 of the Bureau of Workers’ Compensation, which was in effect when plaintiff injured, was precluded attor- neys from recovering percentage fee for accrued medical services.84The Court questioned the soundness of Rule noting that requiring employers or insur- ance carriers to pay attorney fees they when refuse to pay mandatory medical benefits would justice.85 serve 82Boyce Rapids Asphalt Paving Co, 546; v Grand App 117 Mich (1982). NW2d 28 83Id. at 549-550. 1979, provided plaintiffs attorney Before Rule 14 that a shall deduct expenses computing reasonable expenses before a fee. These included hospitals, surgery, providers, However, medical and burials. the statute 1979, Legislature was amended in and the removed these from the expenses attorney precluded recovering. Thus, an from Rule 14 no longer prevents attorneys recovering percentage attorney from a fee assigned by recovery a Chrysler of medical Corp, services. Watkins App 131 n 85Boyce, supra at Community Hosp 551-552 n 45. In Zeeland v Vander Wal, App 815; (1984), 134 Mich 351 NW2d Appeals the Court of applied analogous reasoning. Examining 315(1), noted, § it “Since the concerning attorney clause concerning fees follows the clause the em ployer’s pay employer’s refusal to the expenses, reasonable medical the logically final require sentence is employer construed to either the or the pay portion plaintiffs] insurance carrier attorney [a to fees.” at Id. 823-825. The Court also held that the by statute does not evince an intent Legislature require the providers to pay portion health care to attorney fees. Id. PETERSEN V MAGNA CORPORATION Opinion Kelly, C. J. the Court of Chrysler Corp,86 Appeals In Watkins that expounded Boyce principle reaffirmed the § applies in the final sentence of “prorate” term 315(1) their insurance carriers. Watkins employers and and was plaintiff sought who injured involved benefits. He subse compensation awarded workers’ hearing regarding right his quently requested ultimately attorney expenses fees related to medical The Michigan. mag Blue Cross Blue Shield of paid The istrate ruled that he was not entitled to such fees. (WCAB) Board re Compensation Appeal Workers’ attorney and awarded magistrate’s versed the decision paid by plaintiffs employer. fees to be reversed, Appeals holding On the Court of appeal, § attorney that fees under imposition 315(1) plaintiffs would be unconscionable. It noted that there expenses timely paid medical had been and that neglect, duty, provide had been no breach of or failure to Nonetheless, medical care.87 the Court reiterated that had improperly ignored policy aspect WCAB that an insurer should bear Boyce employer its attorney expenses timely fees when medical are not paid.88 Watkins,

In defendants in this case did contrast such that timely pay plaintiffs expenses not medical failure to neglect, duty, there was no breach of provide Appeals reasoning The used the in Duran v Sollitt Court of same Co, 610, 615; (1984), App which noted Constr 354 NW2d 315(1) payment by employer § or his “seems to refer Moreover, agreed Boyce . .. .” the Duran insurer Court precluded against an assessment of fees a health care statute provider. Id.

86 (1988). Chrysler Corp, App 421 NW2d 597 Watkins v Mich 87 Id. at 132. 131-132, Boyce, citing supra n Id. at at 551-552 45. 484 MICH Opinion Kelly, C.J.

medical care. Midwest failed to medical pay expenses paying the fact it was other workers’ despite compensation plaintiff. benefits As the WCAC noted, plaintiff’s Midwest knew of medical bills well trial, yet advance of refused simply pay them. Thus, employer “fail[ed], neglect[ed], or re- to furnish reasonable expenses fus[ed]” medical for 315(1).89 plaintiff’s injuries § under Finally, Harvlie Jack Post the Court Corp,90 315(1) § found a Appeals unity purpose by holding that its last sentence magistrate authorizes a to prorate attorney among fees an employer and its insurance carrier. The Court held: 315(1)

Here, majority’s § WCAC construction of reading consistent with a harmonious of the last two sen 315(1). 315(1) § provides § tences of The third sentence of magistrate may prorate attorney that “the... fees at the contingent paid by employee.” alone, fee Standing rate ambiguity identify sentence contains it because fails to magistrate may pay whom the order to fees. This isolation, however, sentence not to be construed in but instead must be read in the context of the whole statute and provisions harmonized with the statute’s other in a manner purpose Legislature. that effectuates the intended The 315(1) § second consequences sentence of addresses of an employer’s pay expenses failure to medical and authorizes a magistrate employer to order the to reimburse either the injured provider claimant or the claimant’s medical insurance for the expenses reasonable medical incurred. This second consequences sentence nonpaying addresses the to a em “fails, ployer neglects, provide or refuses” to reasonable properly medical services. The WCAC construed the final two 315(1) provided unity § purpose sentences of for this statute.[91] 89 Watkins, supra See at 132. Corp, Harvlie v Jack Post App 439; (citations omitted). Id. at 445-446 Corporation Magna Opinion by C. J. Kelly, holding that its was consistent with The Court noted 315(1).92 interpretations prior WCAC, sum, magistrate, I agree In with and established caselaw that em- Appeals, Court of their insurance carriers are the ployers and attorney fees under subject proration parties 315(1). harmonizes the last interpretation § This 315(1) § sentences of preceding sentence of goals the remedial as well as with provision magistrates may thus compensation WDCA. Workers’ incurred in attorney pro- an fees prorate employee’s expenses against for medical an curing payment carrier, or against against its insurance employer, both.

Here, magistrate’s proration attorney fees defendants’ appropriate, given defendants was against as mandated pay plaintiffs failure to medical services 315(1). magistrate § I conclude that the Accordingly, attorney fees under properly prorated plaintiffs 315(1) Magna. § Midwest and against RULE

III. THE INAPPLICABILITY OF THE AMERICAN Michigan I note that courts follow the so-called Finally, attorney to the respect payment “American rule” with that, rule, held the American “[u]nder fees.93We have losing attorney party fees are not recoverable from set forth exception as costs in the absence of an authorizing such an expressly statute or court rule 600.2405(6), rule is codified at MCL award.”94 This may items that be taxed as among which provides Id. at 446. Hts, Sterling Haliw NW2d 700, 706; 94 Id. at 707. 484 MICH Opinion by Kelly, C.J. costs are fees “[a]ny attorney authorized statute or court rule.”95 315(1)

Here, § grants explicitly magistrates the discre- tionary authority to prorate fees related to an employer’s provide failure to services accordance with Thus, the statute. the statute contemplates party could, other than a plaintiff the discretion of the magistrate, be ordered pay attorney fees in connection 315(1) with a plaintiffs Accordingly, § suit. constitutes express statutory authorization attorney fees, which trumps otherwise applicable American rule.

IV CONCLUSION I recommend that the Court modify and expand the principles set forth in Robinson v Detroit governing when the Court depart should principle from the stare A decisis. stare decisis analysis should always begin with a presumption that upholding precedent is the preferred Next, course of action. the Court should determine whether a compelling justification exists to overturn precedent. A compelling justification is not a mere belief that the precedential case wrongly was decided or that the Court as currently composed would have decided the case differently. The factors listed this opinion should be used on case-by-case basis to determine whether a compelling justification exists to overrule existing an precedent.

However, consistent with United Supreme States Court precedent, I would accord a lower level of defer- ence to cases that represent departure recent from the traditional notions of stare decisis. 95 The English American rule stands in contrast to the rule. Under the

English rule, losing party pays prevailing party’s attorney fees exception. and costs absent Id. Corporation Magna Opinion J. Hathaway, statutory the definition as unworkable reject I also I conclude Mayor. in Lansing ambiguity espoused 418.315(1) capable it is because ambiguous MCL persons reasonably well-informed being understood a consequence, As different senses. or more two among whom the parties indicate clearly fails to statute may prorated. fees attorney intended Legislature hold that the we would Finally, apply only in the last sentence “prorate” that the term This con- insurance carriers. and their employers principles with well-established is consistent struction na- caselaw, the remedial statutory interpretation, 315(1). I §of would WDCA, purpose and the ture of fees does Rule of the American also hold that 315(1). §to apply not application defendants’ motion to dismiss

Plaintiffs considered, it is denied. We appeal for leave Appeals. of the Court of judgment affirm KELLY, CAVANAGH,J., C.J. concurred with lead opin- I concur HATHAWAY, oconcurring). term that the the extent it concludes ion 418.315(1) exclusively to applies in MCL “prorate” sepa- I their insurance carriers. write employers and 418.315(1) be find MCL I do not rately because whole, 315(1), read as a when ambiguous. Section 418.315(1) in MCL the term “prorate” indicates that carriers. and their insurance employers applies proper The statutory interpretation. This is a case presents of a statute application interpretation Assum- de novo review.1 law, receives question of which its constitu- has acted within Legislature ing that the 1 (2008). Titus, 573, 578-579; 493 v 751 NW2d Estes 481 Mich

340 484 Mich 300 Opinion by Hathaway, authority, judicial tional con- purpose statutory give is to intent struction discern and effect to the of the In Legislature.2 determining Legisla- the intent of ture, Court language must first look to the of the foremost, The must, statute.3 Court first and interpret of a statute in a manner language consistent Legislature.4 with the intent of the as possible, As far clause, given every phrase, effect should be and word statutory language the statute.5 The must be read context, grammatical understood its it unless something Moreover, clear that different was intended.6 when considering interpretation, the correct the statute must read as a and phrases, whole.7 Individual words important, while read in should be the context of the legislative entire defining particular scheme.8 While statutes, words we must consider the plain both meaning critical or phrase, word as well as its placement and purpose in the A statutory scheme.9 must be in conjunction statute read with other relevant to ensure legislative statutes that the intent is correctly ascertained.10 interpreted The statute must be in a manner which harmony ensures that it works in statutory entire scheme.11 2 Valley Ward, 230, 236; Sun Foods 460 Co (1999). 3 Id.

4 Id. at Id. 237. (2008). Co, 352, 366; Herman Berrien 481 Mich NW2d Valley, supra Sun at 237. 8 Herman, supra at 366. 9 Id., States, quoting Bailey 137, 145; v United 516 US S116 Ct (1995). L Ed 2d 472 Wayne General, 227, 233; vCo Auditor 229 NW 911 11Id. at 234. Corporation Magna by

Opinion J. Hathaway, 418.315(1), plain MCL the the intent of To determine Section first he examined. the statute must language 315(1) pertinent part: provides furnished, furnish, to or cause employer shall to be

The arising out of personal injury employee who receives a medical, employment, in the course of reasonable and medicines, or other hospital and surgical, and services by recognized of this or treatment the laws attendance days they . from legal, when are needed... After state as section, the provided in this inception of medical care as the her own may physician treat of his or employee with physician the the by giving employer to name of choice the The physician. with his or her intention to treat the and petition may carrier file a employer employer’s or the by employee objecting physician the selected the to named objection. employer setting forth for the If the reasons why employee the not can show cause should or carrier physician of the em- treatment with the named continue choice,.. magistrate may that the ployee’s . the ... order physician with the employee discontinue treatment named physician from .... If pay for the treatment received the or fails, do, neglects, to the employer the or refuses so expense the employee shall be reimbursed for reasonable employee, may be paid by payment the made in behalf unpaid may employee persons expenses to whom by magis- owing, compensation order be workers’ magistrate may prorate compensation The workers’ trate. paid employee. rate attorney contingent at the fees fee added.] [Emphasis 315(1) gives discretionary magistrates Section fee contingent fees at authority prorate attorney in this case is question The paid employee. rate be prorated. fees can against whom the lead Although disagree opinion I with 315(1) § its ambiguous, agree I final sentence 315(1) applies § the final sentence of conclusion This their insurance carriers. employers the individual of the statute harmonizes interpretation 484 MICH Opinion by Hathaway, 315(1) § phrases sentences with each other. The 315(1) § final sentence of cannot construed stand reading without it in alone the context of the entire statute.12 It must be examined and of analyzed part as statutory the and then particular provision harmonized the other to the provisions satisfy pur with statute^ pose by Legislature.13 intended the 315(1) employer

Section to to pertains liability pay medical injured benefits to workers in the course 315(1) employment. Section employers mandates that an employee furnish with medical treatment needed for injury arising out and in the employ- course of ment. The also statute enumerates certain types of treatment for which reimbursement costs be con- can employers tested their insurance carriers. How- if an ever, fails, employer neglects, or refuses provide to expenses, covered medical the employer must reim- the for employee burse expenses, pay- make to a provider unpaid ment medical expenses for 315(1) may be The last owing. gives § sentence of to magistrate prorate attorney discretion at the fees contingent paid by fee rate employee recoup to costs to expended Thus, recover medical term expenses. in “prorate” 315(1), § the final sentence of the when read with statute, applies the rest of the parties who might contest the payment of medical employ- benefits: ers and their insurance carriers. This interpretation 315(1). provides unity purpose § In I closing, only concur with lead opinion’s 418.315(1) conclusion that term “prorate” MCL applies exclusively employers their insurance carriers. I write I separately because do not find that People Couzens, (2008). 240, 250; 747 NW2d 849 Petroleum, Farrington Inc, 201, 209; v Total Magna Corporation Opinions Dissenting Young, Corrigan, J., J. read as a 315(1) 315(1), when Section ambiguous. § 315(1) §in “prorate” the term whole, indicates carriers. insurance and their only employers applies final sentence harmonizes interpretation This as a whole. entire statute the statute with J. J., concurred HATHAWAY, WEAVER, I Justice fully join J. Markman’s (dissenting). Corrigan, 11(B) Justice YOUNG’s join part I also dissenting opinion. dissenting opinion. of Justice part I IV (dissenting). fully join YOUNG, from I further dissent dissenting opinion.

MARKMAN’S ‘prorate’ term that “the conclusion majority’s 418.315(1) and their applies employers MCL Chief Justice carriers,”1 and with insurance KELLY’s may claimant compensation that workers’ conclusion attor- portion for a never be deemed responsible the “violate doing so would incurred because ney fees Disability Compensation the goal [Worker’s remedial Act].”2 is re- claimant compensation

Normally, a workers’ the his portion the costs of bearing for sponsible MCL I that fees.3 believe including attorney litigation, rule, 418.315(1) general to this exception as an serves attorney fees magistrate prorate the to permitting the when employer claimant and the the between and “needed” “reasonable” pay to refuses employer of and the “arising out injury for an expenses medical 1 Ante at 303. added). (emphasis Ante at 333 340; Remand), Corp (After Gilroy Motors v Gen (“As compen (1991) litigation, any a workers’ other civil

NW2d 271 fees.”); attorney personal see ordinarily responsible for sation claimant Co, App 274 NW2d Atlantic & Tea v Great also Gross Pacific 484 MICH

Dissenting Opinion by Young, course employment.” employer unjustifiably When an duty refuses to fulfill its to statutory pay medical expenses as a result injury, incurred of a work-related it entirely magistrate for the to appropriate consider discretionary whether to exercise the powers Legisla- the ture has provided prorate the fees between parties the In according respective positions. the merits their sum, discretionary authority prorate the is a fee shift- ing power that reduces claimant’s usual obligation bear the attorney entire burden of his own fees. contrast,

In majority only proration allows between the employer insurer, its while the claimant is relieved of paying any attorney of his portion such, fees. As majority must position predicated on the assumption that claim for every benefits is meritorious and any contest of claim such a venal. The reality is that some claims have contested; merit some should be others may legal involve unresolved factual and questions under (WDCA) Disability Worker’s Compensation Act can be resolved definitively only by magistrate and the (WCAC). Workers’ Compensation Appellate Commission In this reality, consideration of I believe that the proration provision legislative was a recognition that neither employer may nor the claimant entirely have meritorious positions Thus, in a particular case. the magistrate has been “split authorized to and divide baby” the claim- ant’s fees when respective merits of the party’s posi- tions warrant The majority prorate this. not does so much as shift the entire fee burden from the claimant to the employer every case.

I. STATUTORY CONSTRUCTION issue, The 418.315(1), statute at MCL provides part: relevant Magna Corporation Opinion by Dissenting Young, J. furnish, furnished, to be employer or cause

The shall injury arising personal out of employee receives a who medical, employment, reasonable in the course medicines, other surgical, hospital services and or by the this recognized or laws of attendance treatment they employer If legal, are needed.... the state as when fails, do, employee be neglects, refuses so to the shall or paid expense by the em- for the reasonable reimbursed may employee payment be in behalf the ployee, or made may owing, by unpaid expenses persons to the be whom compensation magistrate. The work- order of the worker’s magistrate may attorney at compensation prorate fees er’s employee. contingent paid fee rate the the statutory an affirmative employer It is clear that an has medical treatment to furnish “reasonable” obligation injuries “arising out of and the course personal However, such treatment is “needed.” employment” when so, two provides if fails to do the statute employer the medical the paid If the has the expenses, claimant options. the ex- shall be reimbursed for reasonable “employee However, expenses “unpaid,” “pay- if the remain pense.” may employee be made in behalf of the to persons ment owing, by unpaid expenses may the order whom This compensation magistrate.” gives sentence worker’s the payment the discretion to direct magistrate on “behalf of the third-party provider employee.” medical compensa- The last that the “worker’s provides sentence fees magistrate may prorate attorney at the contin- tion As I paid by employee.” agree fee rate gent “prorate” simply word means to divide majority case is question distribute proportionately, are to be- whether the fees be divided simply and the or the claimant employer, tween the claimant medical provider.4 majority earlier, explained has For the reasons I believe always pay employer simply must the claimant’s concluded that 484 Mich 300 Dissenting by Opinion Young, J.

Reading statutory the first sentence of the provision together the last leads to the con- with two sentences may clusion that the be prorated fees between the the employer. claimant and The first sentence estab- duty lishes an affirmative on employer pay to expenses reasonable medical injuries. work-related However, “fails, if employer neglects, or refuses so do,” payment to can be compelled, either reimburs- ing the claimant paying or the claimant’s medical directly. creditors The last of sentence the statute it, relates to permitting the sentence preceding proration attorney parties fees between the when “fails, employer neglects, or pay refuses” to and needed reasonable medical expenses related the claimant’s injury. effect, work-related In this provision permits shifting employer attorney to the some fee burden that the claimant would otherwise bear.

II. PROBLEMS WITH ANALYTIC THE MAJORITY

A Contrary majority’s to the analysis, prin- there is no cipled distinguish basis to an employer from its insur- ance carrier for the purposes prorating attorney fees. makes suggest, does, It little sense to as majority that the claimant’s only fees can be prorated attorneys interpretation fees. While Justice the statute is Markman’s certainly plausible, I language do not believe the structure or of MCL 418.315(1) any legislative upon impose attorney intent evinces fees third-party parties litigation, medical creditors who are not to the did not agree plaintiffs attorney, contract to the services of the are and entirety (subject only entitled to the of their fees cost containment rules) both as a matter of and as a statute matter contract. MCL See Co, Boyce Rapids Asphalt 418.315(2); Paving v Grand 546; App 117 Mich Community Wal, (1982); Hosp Zeeland v Vander 324 NW2d 28 815; Co, (1984); and Duran v Constr App Sollitt App NW2d Magna Corporation Opinion Dissenting Young, J. are The reasons its carrier. employer between say proration does not The statute obvious. fairly its insurer. employer occur between can insured, carrier is its Moreover, an employer when duty indemnify the insurer’s merely agent: its of the insur- to the terms according insured defend its employer, the case of a contract.5 In ance self-insured since less sense analysis makes even majority’s the thus no entity employer one only there is —the —and has ex- majority the prorate, as one with whom En equation. proration claimant from the empted the insured, the is self-insured employer the fin, whether Thus, majority the pocket. from the same paid claim any under any value the deprives “prorate” word bear the entire circumstance, always will employers intended If had attorney Legislature fees. cost fees, it attorney a claimant’s pay employer much and would easily presumably said as could have direct language. in much more have done so B long have noted, Court and the WDCA As this compensation claimant recognized that a workers’ at- paying personal his own ordinarily responsible for that workers’ com- majority’s holding fees.6 The torney excluded from categorically claimants are pensation attorney fees under of their paying any portion ever 418.315(1) from our major departure represents MCL 418.858, which MCL caselaw and is inconsistent with attorney director to limit the “maximum permits America, Blackwell v Citizens Ins Co of 579 NW2d authority, supra. majority mention this nor does n The does not See it it. overrule Dissenting Opinion Young, legislative

fees” “paid employee.”7 This enact- ment, permitting the limitation of fees for injured those representing workers a workers’ com- pensation claim, applies exclusively disputes between and their attorneys clients8 recognizes attor- ney Thus, fees are generally payable by the claimant.9 contrary majority’s requiring to the claim that a claim- ant pay portion of his would attorney fees “violate WDCA,” goal caselaw, remedial decades of as plain 418.858(2), well as the language MCL indicate otherwise.

c majority The holds that the term “prorate” is limited parties might “the who payment contest medical employers benefits: their insurance carri- matter, ers.”10 initial nothing As in the language of term provision limits the to the “prorate” party “contesting” payment benefits, medical to the party exclusion of the “seeking” payment of medical benefits. The majority adds to the language statute majority imagines because the employer that an might “be deny injured to an tempted employee’s request for that, coverage in the hope subsequent litigation, they 7 418.858(2). predecessor statutory provision MCL The of this was first (1st Sess) III, 10; part § enacted in 1912. See 1912 Ex PA Mackin v (1915). Co, 8; Axle Detroit-Timkin 187 Mich 153 NW 49 (MCL Gross, supra “applies disputes See at 451 418.858 to between attorneys clients; apply disputes their it does not to between parties.”). Son, May 432; (1919); See v Charles Hoertz & 170 NW 305 Gillard, 541; (1925); Pearson v 231 Mich NW 725 Vellenoweth v Gen Rench, Corp, 274; Bldg (1929); Motors 247 Mich 225 NW 522 v Kalamazoo Co, 476; Stove & Furnace 287 NW 884 10Ante at 309. Corporation Magna Petersen v Opinion by Dissenting Young, J. However, contrary to liable.”11 not be will found is not majority, employer an beliefs apparent submitted every expense medical statutorily liable for 418.315, an Rather, to MCL pursuant a claimant. needed to reasonable and only obligated pay employer I find noth- injuries. for work-related expenses medical unlawful, about much less ing strange reprehensible, or that it declining pay expenses medical employer an pay. legal obligation had no legal disputes or factual legitimate there are Where claims, compensation workers’ disputed resolved on be magistrate compensation hearing before the workers’ disputes that settles those is the sole mechanism needed medical treatment was whether the determines the medical treatment was reasonable, and whether of and injury arising out personal related to “a should be dis- employers While employment.” course of benefits, medical denying couraged wrongly from concluding logical or basis for majority legal articulates no discouraged punished from or employer that an should is not claims to which a claimant correctly denying legal or entitled, arguable from a resolution seeking question employer’s call into disputes factual obligation pay.12

Here, opinion Justice lead states Chief Kelly’s against fees attorney magistrate’s proration “the added). Ante at 333 (emphasis 418.315(1), of MCL This is consistent with the WCAC’s treatment employer attorney permitted “in cases where an the award of fees which failed, neglected, pay or refused to for medical services or carrier has Thus, may clearly be awarded entitled to. fee claimant ” a ‘clear entitlement.’ Beattie in the non-payment there was where face of added). Corp, (emphasis Aluminum 10-11 See v Wells 2005 ACO 157 at Co, Co, 242; Gessner v Keeler Brass v Jet Box also Scheland 1995 ACO Inc, Fiberglass, 548; Gronley Clair 2001 ACO St 1997 ACO Inc, Taylor Carving, Sikkema v 1992 ACO 469. Opinion by Dissenting Markman, J. appropriate, given

defendants was defendants’ failure by medical as pay plaintiffs services mandated 315(1).”13However, § case, plaintiff where was genuine “leased” there were factual and employee, legal regarding issues to be resolved whether Koleaseco or BCN Transportation Services was plaintiffs employer, compensation whether valid workers’ insurance policy existed Transportation between BCN Midwest Em- ployers In Casualty Company. light of these unresolved issues, it is unclear that Midwest unreasonably refused to Moreover, pay plaintiffs medical the magistrate benefits. did unreasonably not find that Midwest pay refused to medical benefits as the basis for assessing attorney fees against Rather, Midwest. the magistrate attorney assessed against fees Midwest on the basis “substantial by amount of time expended plaintiffs work” counsel in litigating However, awarding the case. attorney fees based on the amount of expended by work and time attorney is in direct contravention of last sentence of 315(1), § which contemplates payment attorney fees on a hourly system. rather than I contingent would remand magistrate this case to assess the issue of appropriate legal fees under the standard. I J. (dissenting). disagree Because with the MARKMAN, majority interpretation of the statute controversy, 418.315, MCL I respectfully dissent.

I. BACKGROUND driver, Plaintiff, a fell injured truck off his truck and his back working. sought while He compensation workers’ benefits Disability under Worker’s Compensation

13Ante at 337. 1 By “majority interpretation,” by I to the refer result reached majority opinions (joined by in the this Court of the Chief Justice (joined Cavanagh) Justice Hathaway Weaver). and Justice Justice Magna Corporation Dissenting Opinion Markman, magistrate et The (WDCA), seq. MCL 418.101 Act and also plaintiff, to benefits and medical costs granted at- $46,034 plaintiffs for against defendants imposed 418.315(1).2 MCL The Workers’ torney fees pursuant (WCAC)affirmed. Commission Compensation Appellate appeal, leave to initially denied Appeals The Court of as on leave remanded for consideration but this Court and the division of defendants’ liabilities granted on the (2006). On attorney 477 Mich assessment of fees. im- remand, of affirmed the Appeals the Court WCAC’s defendants, certain and that liability against of position The Court of subject appeal. issue is not the of this also affirmed the WCAC’sassessment of Appeals Unpublished opinion per defendants. curiam against fees (Docket the Court of issued Nos. Appeals, April 17,2008 273294). The determined that attor- majority on and their insurers ney imposed employers fees could be ZAHRA, dissent, § concluded Judge under while 315(1), imposition. § 315(1) did not allow such This Court meaning leave to to consider the granted appeal 482 Mich and now affirms the Court 315(1), (2008), § I dissent Appeals. Appeals Because believe the Court correct, I dissent.

II. STANDARD OF REVIEW Questions statutory are reviewed de interpretation Inc, Brackett Hope, novo. v Focus III. STATUTE 418.315(1) provides, part: MCL 2 Defendants axe various business entities that were either found to be plaintiffs “employer” purposes or else liable for those of WDCA payments as insurers. 484 Mich Dissenting Opinion by Markman, employer furnish, furnished,

The shall or cause to be employee personal injury arising who receives a out of employment, medical, and in the course of reasonable surgical, hospital medicines, services and or other recognized by attendance or treatment the laws of this legal, they state as when employer are needed . .. The shall supply injured employee service, also to the dental crutches, limbs, eyes, teeth, eyeglasses, hearing artificial apparatus, appliances cure, necessary and other so far as reasonably possible, and relieve from the effects of the injury. fails, employer neglects, If the do, or refuses so to employee shall be reimbursed for the reasonable ex pense paid by employee, may payment be made in employee persons behalf of the unpaid to whom the expenses may magi owing, by compensation order of the worker’s compensation magis The worker’s

strate.[3] may prorate attorney contingent trate fees at the fee rate paid by employee. the

The instant dispute centers on the meaning the final sentence, specifically what it means the magistrate for to be allowed to “prorate attorney fees.” Plaintiff con- tends, and a majority of this Court agrees, that sentence a magistrate, allows granting when a recovery under the penultimate sentence, to order the employer pay, to in addition to the amount awarded for reim- bursement of unpaid medical expenses, employee’s attorney fees attributable to the unpaid benefits.3 De- fendants, however, argue that the final sentence allows 3 Presumably, employee paid if expenses has not the reasonable for “medical, surgical, services,” hospital providers then the medical “persons those unpaid expenses may services are the to whom the be owing.” approach, magistrate Under this if employer pay ordered the employee $2,000 either provider unpaid expenses, or medical magistrate employer pay employee’s attorney could also order the contingency fees Assuming contingency for the fee on that amount. a 30% fee, employer $2,600 pay total, $2,000 paid would to the employee provider paid employee’s or medical attorney. $600 to the Magna Corporation v Dissenting Opinion by Markman, ordering an magistrate, employer pay unpaid when “persons medical to whom the expenses unpaid may owing,” be to deduct a expenses proportionate payments employee’s attorney share from those for the fees.5 goal statutory

The is to primary interpretation effect to the intent. Neal give Legislature’s discern (2004). Wilkes, 661, 665; A 685 NW2d at language, court first looks the statute’s Brown v Mayor, Detroit 478 Mich 734 NW2d 514 (2007), Legislature’s from which “the intent must be Homes, gathered,” Frankenmuth Mut Ins Co v Marlette (1998) Inc, 511, 515; (quota- 456 Mich omitted). statute, reviewing tion marks When “[a]ll phrases words and shall be construed and understood according usage to the common and approved 8.3a, language,” phrase given MCL and “a word or by its context or meaning setting,”6 Koontz Ameritech Services, Inc, 304, 318; NW2d dissent, I agree Appeals with the Court of and with 315(l)’s defendants, § that the interpretation better final magistrate apportion sentence is that a can employee’s attorney employ- amount of the fees from an er’s payment providers. to the medical care This inter- pretation rests on the principally meaning “prorate,” divide, distribute, which means “to or calculate propor- tionately.” Random House Webster’s College Dictionary (1997). Thus, the final sentence can read to allow the magistrate approach, employer pay if Under this ordered the $2,000 provider unpaid expenses, magistrate medical for would apportion employee’s contingency an amount based on the fee from that attorney payment go employee’s Assuming towards the fees. a 30% fee, $2,000, contingency employer pay paid would with $600 to the $1,400 employee’s attorney paid provider. to the medical therefore, word, only, any word, “It is can within context that a (CA 1988). FDIC, 5, communicate an idea.” Leach v 860 F2d Dissenting Opinion by Markman, J. either

magistrate proportionately divide or distribute attorney fees. That the division distribution must be proportionate necessarily there implies must be basis, calculation, some or rational upon which the total attorney amount of can fees be divided or distributed. This basis increasingly apparent becomes when 315(l)’s § final sentence is previous considered with the sentence, in magistrate which the is directed to order employer to make “payment... behalf of the employee to persons unpaid to whom the expenses may Thus, be owing.” payments will be made to medical providers in the amount unpaid expenses of the owed employee. These payments logically supply the basis which the fees upon attorney can be proportionately divided, because each payment portion constitutes a the whole on which the employee’s attorney fees are is, if calculated.7 That the magistrate payment orders multiple providers, medical then a share employ- attorney ee’s fees is deducted payment from each based on the proportion of the whole that each payment represents. Legislature’s

The “may” use of the word to confer upon magistrate authority to “prorate attorney fees” lends further support to this interpretation. By choice, this word the Legislature has indicated that there are times when a magistrate might not “prorate If “prorate” fees.” is interpreted to allow a division of fees between medical care providers, then the use of “may” this context makes sense. In those interpretation understanding This reflects the common of the term “prorate” used, example, arrangements. as often in rental A landlord “prorate” will often begin the tenant’s rent when the lease does not on pays prorated monthly the first of the month. The tenant amount of the (out month) days rent based on the number of of the whole living apartment beginning tenant will be in the before the of the next month. Magna Corporation Dissenting Opinion by Markman, J. the directs to the magistrate payment instances that fees, divide the magistrate medical the would providers, magistrate only but when the ordered reimbursement expenses to the for his or her “reasonable employee Thus, not divide the fees. paid,” magistrate would under the recognizes penulti- the final sentence magistrate may payment mate sentence the direct ei- employee, ther to the in which case the division of attorney inappropriate, magistrate fees would be or the may payment multiple providers, direct medical care and medical employee providers, care which attorney case division of the appropriate. fees would be 315(l)’s By contrast, § the majority interpretation of magistrate final sentence to impose attorney allows against employer, fees in addition to the payment unpaid utterly medical expenses, with no direction concerning magistrate the circumstances which the is, majority should do so. That ac- interpretation magistrate cords the the discretion to assess attorney against employer “fails, fees an when the employer neglects, benefits, pay provides or refuses” to but no guidance for when ascertaining that discretion should or should not be Legislature truly exercised. Had the intended for magistrate fees impose against employer, likely an it seems that the Legislature would have included some standard for determining circumstances under which fees should be assessed.8 giving magistrate The Chief Justice asserts that such standard- supported by provisions “[o]ther less discretion is of the WDCA that vest magistrates using ‘may’... discretion in the word .” Ante at n 19. Contrary assertion, however, provisions to her those other do not similarly magistrate discretion; rather, they vest in a standardless provide specific magistrate at least some direction which the is to 315(1), regard § exercise his discretion. With to the final sentence of 315(1); penultimate § dissent finds direction sentence of contrast, penultimate the Chief Justice finds the sentence to be irrel analysis. evant to her ' MICH

Dissenting Opinion by Markman, appar- more is that the Chief Justice troubling Even 315(1) §of irrel- ently finds the entire final sentence can attor- concluding magistrate impose evant in that a fees She states: ney against employer. “may” proration must

[T]he word bears on whether magistrate attorney occur if a does award fees.... Should a only liable, magistrate [party] is determine that one magistrate may impose attorney against only party fees that Conversely, magistrate multiple parties liable, should the find may prorated accordingly. fees be at [Ante 310.] 315(1) Thus, § the Chief Justice to' interprets allow magistrate impose attorney any “proration” to fees absent she interprets “may” according fees because as the discretion to decide “whether a magistrate proration occur,” already must he has decided to award after If attorney magistrate determines that the attor- fees. ney fees on then the imposed “multiple parties,” should magistrate “prorate” among can or divide the fees those However, hable,” if parties. “only [party] mag- one istrate impose “against only party” can the fees having “prorate” without or divide the fees at all. This 315(1) recognize § fails to completely allows the magistrate attorney or not “prorate” “prorate” fees. 315(1) § Interpreting magistrate impose to allow the relying fees without on the specific authority to reads an “prorate” authorization into the statute that clearly does not exist.

The Chief Justice her supports interpretation reasoning that because the “statute . . . provides pro- cess for and their insurance carriers to employers object to the medical treatment that an injured employee seeks,” the final sentence “when read with the remain- statute, might der of the to the who applies parties payment contest the of medical benefits: and employers is, their at insurance carriers.” Ante 309. That PETERSEN V MAGNA CORPORATION Dissenting Opinion by Markman, the final sentence with the remainder of “harmonized 315,” § “standing] alone,” and to avoid the final sentence 315(l)’s § impose final sentence must be read to addi- liability insurers, tional employers on their order to “unity 308-309, 336; maintain a purpose.” Ante at see (HATHAWAY, J., also ante at 342 concurring). Contradicting however, this pursuit “harmony” “unity,” are 315(l)’s fundamental § differences between final sentence sentences, preceding clearly which establish employer’s liability for In particular expenses. these pre- sentences, ceding Legislature that the employer states furnish, furnished,” “shall or cause to be various reason- able medical expenses and that the employer “shall also supply” various (e.g., eyeglasses, correctional devices arti- crutches). 418.315(1). limbs, ficial MCL If the employee pays these expenses, reasonable then under the penulti- mate sentence employee “shall be reimbursed” for the expense paid by Thus, reasonable the employee. Id. penultimate sentence relates back to the expenses listed that an employer pay. “shall” in- Attorney fees are not in cluded those expenses; yet the majority interpretation effectively gives phrase “may the prorate” the same mean- as ing phrases the “shall furnish” and “shall so supply” the final sentence imposes an additional payment obligation the upon employer. This is contrary conclusion to the logical assumption that, had Legislature the in- tended to affirmatively impose payment of attorney fees upon employer, an it would have done so at least approximately clarity the same it imposed with which liability expenses for other upon the employer earlier Instead, within the same subsection.9 Legis- the 9 Indeed, Legislature fairly throughout the has been consistent the WDCA 418.301(1) imposes liability against employer. it example, when the For MCL paid compensation “shall be employee provided an states that as in this act”; pay, employer shall paid, MCL 418.345 states “the or to be cause 484 Mich by Dissenting Opinion Markman, in considerably language different

lature chose to use immediately preceding sentence than in the the final sentences.10 read, my judg- better

The final sentence is much to direct ment, magistrate’s ability an to the adjunct as penul- to medical established the payment providers adding amendment legislative timate sentence. The 315(1) supports § such a specifically final sentence to amendment, the then-final relationship. Before 315(l)’s 412.4, § now sentence of former MCL which is sentence, penultimate employee allowed for medical payment expenses: receive do, fail, neglect employer If the shall or refuse so to such employee expense shall be reimbursed for reasonable same, by by providing incurred or his behalf in on 412.4, by [MCL award of the commission. as amended 250.] PA the statute to allow Legislature

When the amended to the medical it payment providers, to also be directed sentence in here: dispute added the now-final fail, do, employer neglect If the shall or refuse so to such expense employee shall be reimbursed for the reasonable him, paid by' payment may be made in behalf of such employee persons unpaid expenses may to whom such owing, of the commission. The commission an award may prorate contingent fees such cases at paid by employee may prorate it fee rate such also such redemptions. 412.4, payments [MCL in the event of as 199.] amended 1963 PA sickness, funeral, expense employee’s last reasonable 418.351(1) shall burial”; employer pay” weekly and MCL states that “the compensation employee totally incapacitated from work. when the added.) (Emphasis 10 Although purport and Justice HATHAWAY to “read Chief Justice statute,” ante at 315(l)’s sentence] remainder final with the [§ concurring), give and ante at fail even consider (Hathaway, both immediately preceding language ation to the in the sentence. Magna Corporation Dissenting Opinion by Markman, J.

Thus, magistrate’s ability “prorate attorney fees” directly accompanied the magistrate’s ability to direct payments providers.11 to medical This association seems to indicate Legislature that the recognized that when providers medical received payment from the employer, the medical providers fairly themselves could be said to have been enriched the work of the employee’s attorney.

Prior amendment, to the a medical provider was relegated to seeking payment from the employee through separate cause of action. if Even the medical providers recovered the full action, amount in the each would still pay have to its attorney own costs due to the longstanding “American Rule” regarding attorney fees.12In effect, Legislature set forth a shortcut 11Recognizing legislative history equal value,” “not all is of In re Question, 109, 5; (2003), 468 Mich 115 n 659 NW2d 597 Certified legislative amendment of the statute constitutes the action that estab 315(.l)’s present relationship lished the penultimate § between and final gleaned sentences that can be supra from the sentences themselves. See such, at 354-355.As represents of this clearly amendment what is fact compelling legislative most history, form of because it is derived purely from the hand, enacted words of the statute. relying On the other legislative history on upon legislative analysis, see, based e.g., Adrian Michigan School Employees’ Retirement Dist v Pub Sys, School (1998) 458 Mich 326, 335; J.); Financial, NW2d 767 Omne Inc v (Kelly, Shacks, Inc, 305, (1999) 460 Mich 315 n J.), 596 NW2d 591 (Kelly, created staff Legislature offices within significantly less com pelling, Question, In 5, re legislative Mich at 115 n Certified history exclusivelyupon that relies single the statements of a one of 110 Representatives, members of the single House of or a one of 38 members Senate, of the state compelling. is even less Sterling Hts, In Haliw v 706-707; (2005), we stated: Michigan respect follows the “American rule” with to the payment attorney rule, fees and costs. Under the American generally fees are losing party not recoverable from the as exception costs in the absence of an set forth in a statute or court expressly authorizing

rule [Citation such an omitted.] award. 484 Mich 300 Opinion by Dissenting Mabkman, J. 315(1). medical requiring than § Rather this practice and commence attorneys their own to hire providers 315(1) § now employee, the against actions separate the through to recover provider the medical allows providers Medical by employee.13 the action instituted did they as reimbursement amount receive the same amendment, retain more of employees while before the are entitled.14 recovery they to which 821(2), arrangement provided hy § which allows to the This is similar compensation assign portion award to an employee a of his workers’ an to organization, company, or medical care health maintenance insurance payment corporation or to hospital that makes an advance service policy provides are employee that benefits under an insurance injuries. compensation Upon payable enforcement not for workers’ organiza company, assignment, health maintenance the insurance tion, corporation pay portion hospital shall “a medical care and service or compensa attorney attorney secured the worker’s of the fees of the who 418.821(2). Thus, attorney employee recovery.” retains an tion MCL benefits, recovery subject assignment helps pay and the to the to recover attorney employee’s fees. Likewise, nonparty employer pursuant § can recover employee’s attorney pursuing third-party through the efforts of an action, recovery liability whereby employee can seek for the same damages in an action in tort.” MCL he “would be entitled to recover 418.827(5). recovers, employee he “reimburse the If the then shall first WDCA, any paid payable” employer under the or carrier for amounts id., recovery,” expen- by “expenses “reasonable which include reduced fees, effecting recovery,” ditures, including attorney incurred in MCL 418.827(6). Thus, paid employer not recover the full amount it does Rather, policy. compensation full is less under workers’ amount its fees, employer pay any would have had to had it sued which 418.827(1) recovery party for as it is entitled to do. MCL the third party employee (employer bring against in name of if one can suit third injury). year passed employee’s This reduction has since the pursuant recovery magistrate “prorates” amount is the same as when 315(l)’s § final sentence. same, providers for medical remains the The financial outcome attorneys, whereas, providers hy eliminating hire the need for expenses. example, employee actually keeps For more of his medical $3,000 expenses provided employee paid has in medical assume that an Magna Corporation Opinion by Dissenting Markman, majority interpretation impose The an addi- would upon process tional cost the workers’ compensation employers pay them not penalizing forcing attorneys, their employees’ for own but also for their attorneys. odds expense This increased is at with MCL 418.801(3), in the Legislature already pro- which has unpaid a penalty vided medical benefits: paid If medical bills or travel within allowance are not days nonpayment after the carrier has received notice of mail, ongoing certified in cases where there no dispute, due, amount of $50.00 or the the bill whichever is less, paid day to the each shall added and worker for over days in which medical the bills or travel allowance are paid. $1,500.00 may not Not more than in total be added pursuant to this subsection. majority

The interpretation would establish a new 315(l)’s § penalty provision with final sentence that is 315(1) § provider $2,000 expenses. for in and still a medical owes for such attorney recovery. any Further assume that fees are 30% of Prior to the 315(l)’s sentence, § employee recovery addition of an final seek would $5,000 and, employer upon amount, receiving from the that would owe $1,500. attorney provider his After the medical commenced action for $2,000 ajudgment amount, employee the and obtained for that the would $1,500, paid. provider be left with half of what he The medical would owe attorney $600, meaning $1,400 provider its that the medical recovered $2,000 Thus, employee $1,500, for its bill. the retained the medical provider $1,400, attorneys (employee’s retained the and medical $2,100. hand, provider’s) went home with On the other after the addition 315(l)’s dissent, interpreted §of magistrate final sentence as in this the payment $2,000 provider would direct to the medical but with $600 appropriated employee’s attorney. magistrate for the The would also payment $3,000 employee appropriated direct to the $900 but with for employee’s attorney. result, provider a the As the medical recovers the separate against same amount that have it would recovered in a action employee, employee $2,100, the but the is left with which is $600 more system. than he would have recovered under the $600 old The is available Legislature provided way recovery because the a in which could be by employee provider requiring realized both the and the medical without attorneys. both hire their own 484 Mich 300 Opinion Dissenting Markman, J. penalty provision, actual with the WDCA’s

inconsistent a pen- provides Legislature expressly which ongoing dispute.” there is no only “where alty payment interpretation prevents majority in the Nothing pres- even in the operating from attorney-fees penalty directly contrary to when which dispute, ence of If the apply. should penalty has stated Legislature 315(1) as a penalty § to operate intended Legislature would penalty it seem that such then would provision, consistently penalty pro- with the least be assessed at 801(3). consistency lack casts § This vided under majority interpretation. on the further doubt authority over medi- respect magistrate’s to the With 315(2) action, § that are not to the providers parties cal authority indeed does have magistrate that implies in the they operating when are providers over medical any recovery by § by providing context of 315 magistrate provider medical can be reduced under the rules.” charge the “maximum established added.) Thus, magistrate may reduce the (Emphasis party if the is not a recovery provider even provider’s has the same magistrate the action. It follows recovery pay employee’s reduce the for an ability to magistrate grants fees when the statute 315(1).15 §in authority such Young’s disagree interpretation respectfully that I with Justice also 315(1) attorney “permitís] magistrate prorate the § the to fees between First, employer Ante at 343. he does not account claimant and the .. ..” attorney why magistrate’s authority “prorate to fees” is for the statutory unjustifiably triggered employer fulfill its “[w]hen an refuses to duty pay expenses more Ainte at 344. It would seem for medical ....” attorney magistrate impose logical interpretation that could under his any “fails, neglects, employer employer against time the or fees an expenses. the pay medical Nowhere does statute refuses” to for the “unjustified” the that the refusal must be before include the caveat Second, proration magistrate “prorate” statute directs can the fees. the 418.315(1), contingent paid by employee,” not rate the MCL “at the fee Corporation Magna Opinion Dissenting Markman, J. 315(1) by § supplied and clues conclusion, several In interpretation support in this set forth the the WDCA (1) regard Particularly the are: in this relevant dissent. “prorate,” proportionality this the division the use logical conveys, is some fact that there and the term calculating proportions this under basis for standard interpreta- majority interpretation, under the but not (2) magistrate’s “may” describing the in tion; the use of authority prorate, is some fact that there and the authority exercising logical this or basis for standard majority interpretation, the but not under under this (3) interpreta- consistency interpretation; the consistency majority inter- tion, pretation, the lack of (4) 801(3); § provision penalty the the majority interpretation into reads words that the fact 315(1) § that are nullifies words are absent and (5) language significant present; differences in the 315(1), § introductory which sentences of the between liability particular clearly employer’s establish nothing expenses, sentence, does final which and its (6) implications logical equivalent; from drawn the 315(l)’s being positioned § after the final sentence legislative penultimate amendment of sentence, the (7) arrangement 315(1); similarity § in the providers employees’ attorneys and medical between parties’] positions,” at “according respective [the ante to the merits of options” mag- Third, “provides penultimate two sentence 344. —the providers employee payment or to medical istrate can direct —and options recognize my judgment, these fails to Justice Young, magistrate upon can statutory provide basis which an obvious attorney Finally, although “prorate fees.” his discretion to exercise entirety are, fact, fees” of their providers “entitled to medical recovery always reality litigation, will ante at n is that before against “impos[ing]” subject than fees fees. Rather whereby are the fees providers, Legislature created a mechanism recovery being paid provider, and to the simply from the deducted reduced, “parties litigation” without whereby to the can be the number of potential parties. affecting the outcome to those 484 Mich 300 Dissenting Opinion by Markman, J. set arrangement forth this dissent and the between employees’ attorneys and set nonparties §§ forth and 827.

IV RESPONSE TO THE CHIEF JUSTICE merely Not content misconstruing law, Chief adopts approach Justice to statutory interpre- tation that can be described as bizarre. She begins her that interpretation asserting the “threshold 315(1) question is . . . § whether the last sentence of ambiguous.” at entirely Ante 308.16After an gratuitous dictionary citation to the definition of “prorate,” one that promptly proves any to be to irrelevant subsequent analysis, the Chief Justice determines that “the term ‘prorate’ could reasonably apply employers, their carriers, insurance health care providers, employees seeking benefits, compensation workers’ or any com- bination of them.” Ante at This finding 308. should come surprise as no considering the Chief Justice’s focus “prorate” on the word regard without its Next, context. the Chief initially Justice determines § any “neither 315 as a whole provision nor other of the WDCA indicates parties to whom a division distribution of applies,” fees but nevertheless proceeds her adopt own it interpretation because 315(1) § “unifies the last sentence of with the remain- der of the statute.” Ante at 308-309. Satisfied that her interpretation gives also effect to the word cf. “may,” supra at the Chief Justice then concludes her interpretation the phrase ‘may prorate’ “affords full its this, meaning.” Ante at 310. After all Chief Justice continues to her question” answer “threshold in the affirmative, concluding that the statute is ambiguous approach garnered I majority support note that has not on this Court. Corporation Magna Opinion by Dissenting Markman, 315(1) exist.” Ante §of “interpretations other because appearance is, giving That rather than even at 310. statute is that the reached the conclusion that she has ascertaining difficulty her upon based “ambiguous” from the the Chief Justice withdraws meaning, its interpre- once other statutory interpretation process to much easier apparently It is presented. tations are the thereby avoid “ambiguity,” summarily declare one’s actually carry out having to inconvenience of or contract what the statute by deciding duties judicial states.17 actually ambiguity

a. here, Chief “interpretation” from her As evident thresh- extraordinarily low on an dependence Justice’s conclusion and her resultant ambiguity, finding old for 315(1) to course, are essential is, “ambiguous,” § that then on proceeds The Chief Justice analysis. her established, has been that, ambiguity once assumption any serious by essentially is unencumbered judge a of a statute or language imposed restraints utilize carte effectively has blanche contract and reaching a appropriate factors are deemed whatever result. not “interpretation,” disagree approach

I with this interpretative process it divorces merely because “interpreted,” purportedly being from the law suspicion because it raises the unavoidable but also requires a court to interpreting or contracts either statutes Because approach signaled language, interpretative give meaning specific equal ambiguity “applies force whether by particular a view of Mayor statutory interpreting a one.” text or contractual court is 154, 6; Comm, n Lansing v Pub Service (2004). Co, 1119, Mich 1120-1121 Farm Bureau Ins also Ellis v See (2008) ; Kroger Michigan, 40 n 764 NW2d Zahn v 484 Mich 300 Dissenting Opinion by Markman, J. judge reaching the result he or she would personally

prefer rather than the result compelled by the law. That is, abiding by instead of the traditional exercise of the “judicial power” in which the judge, employing the statute or contract lodestar, itself as the says only what “is,” the law the Chief Justice her understanding of ambiguity would effectively exercise “legislative power” say what the law “ought to be” by arbitrarily picking and choosing among practically limitless va- riety of available extra-textual considerations.18 For the Justice, Chief concept ambiguity is one to be both casually and peremptorily invoked —as in this case in which no party has even asserted that the statute is ambiguous avoid the discipline of the traditional —to judicial process, while maintaining at least some ap- pearance that process has been respected. The lower the barrier to finding ambiguity, the more effort- lessly a judge can dispense with the hard work of giving meaning to difficult and complex provisions of statutes and contracts, and the less risk that this regular process of interpretation will lead to the “wrong” results. A facile resort to ambiguity affords the judge readily available means of acting beyond the of scope his or her authority to exercise exclusively the “judicial power.”

It is hard to conceive of a much lower barrier ambiguity than that propounded by the Chief A Justice. statute, instructed, we are is “ambiguous” when it is “capable of being understood reasonably well- deciding case, judiciary’s is, When always been, role and has question, law, answer the “what is the ought and not what the law to be.” (1870) Blackeby, 84, Detroit v 21 Mich dissenting); see (Cooley, J., Michigan also Secretary United Conservation (After Clubs v State Remand), 359, (2001) 397; 464 Mich 630 NW2d 297 (Markman, J., (1 concurring), citing Marbury Madison, Cranch) 137; 5 US 2 L Ed 60 (1803). “It is for the court to declare what the law is—not to make it.” Arnold, 98, Wilson v 5 Mich Magna Corporation Opinion Dissenting Markman, different senses.”19 or more two persons

informed describe almost definition does not If this Ante at 331. Court, certainly it coming before litigation all relatively are litigation. There much of this describes have undertaken of whom litigants appellate few —most accepted psycho- litigation, burdens of the financial legal process, a protracted tolls of and emotional logical Court Supreme trial, appeal, intermediate and endured reconsideration, all remands, and motions for appeal, ethically who are by attorneys being represented while meritoriousness degree some obligated to ensure con- statutory and legal positions their clients’ —whose un- characterized fairly could not be disputes tractual entailing ambiguity. as Justice’s definition der the Chief from the realm Indeed, clearly be excluded little would genuinely than her definition other ambiguity by and sanction- lawsuits, are both rare frivolous which in judicial are resolved interpretation able. Matters are statutes contracts precisely venues because ambiguous “two when The Justice also states that statute Chief it, reasonably meaning[ persons ]” to or when it is “of [a] afford different ” opined previously questionable meaning. has or unclear Ante at 328. She application the case ambiguous its to the facts of that a statute is “when Comm, 220, uncertain,” DaimlerChrysler Corp 482 Mich v State Tax (2008) result), J., concurring 2; 240 n 753 NW2d 605 (Kelly, meaning,” disagreement Fluor over its when “there can be reasonable 170, 186; Treasury, Enterprises, Dep’t Inc v (2007) ambiguity (Kelly, J., concurring). definition of As with her latest any case, truly of these remarkable about in this what would many statutory they or contrac if served to exclude definitions would be “Uncertainty” “disagreement” disputes purview. are their tual from place. parties litigation Nat’l Pride at in the first See also what draw into (2008) (Kelly, Work, Governor, Inc v 95 n 748NW2d general J., dissenting), asserted that a in which the Chief Justice “ambiguous” it did not provision Michigan’s because constitution was applicable. every specific it was expressly circumstance to which set forth case, majority responded, almost all constitutional The “If that were ambiguous.” n 21. provisions Id. at 81 would be rendered

368 484 Mich 300 Dissenting Opinion by Markman, susceptible to “being understood reasonably well- informed persons two or more different senses.” remarkable,

Even more however, is that the Chief Justice’s “analysis” own in this case does not even satisfy her own low threshold discerning for ambiguity, since there is nothing therein that suggests that either the plaintiffs or the defendants’ position is “reason- fact, able.” In the Chief Justice never compares once any interpretation other than her own to the statute. simply She notes the “existence]” of competing inter- pretations and declares ambiguity. Ante at 310. Essen- tially, the Chief Justice’s standard for discerning ambi- guity is more accurately stated as: “A statute ambiguous when parties offer conflicting interpreta- tions.”20

The Chief Justice has previously observed, “I find frequent ambiguity in statutory language.” Haynes v Neshewat, 29, 40; (2007) 477 Mich 729 NW2d 488 (KELLY, J., concurring).21 This is not surprising. For once 20 disagreement Such parties hardly between precedent-shattering event in this Court. 21 regard, At unquestionably least See, she is correct. example, following list of cases enumerated in footnote 56 of the Chief opinion get Justice’s some sense of the breadth of the matters that she apparently “ambiguous” among published views as opinions our over the past years regard five alone. With to each “examples,” of these justices dissenting implicitly this case are having chastised for “de ambiguity: clined” to find See, e.g., Fin, Dimmit Touche, & Owens Inc v Deloitte & 481 618; (2008); Mich Network, 752 NW2d 37 Ross v Blue Care Mich 153; (2008); 747 NW2d 828 Comm, Wesche v Mecosta Co Rd 75; (2008); Ernsting

Mich 746 NW2d College, v Ave Maria (2007); Mich 985 [v Trentadue Sprinkler Buckler Automatic Lawn Co, 378; (2007)]; 479 Mich City, 738 NW2d 664 Lash v Traverse 180; (2007); Mich Mayor, NW2d 628 [v Brown Detroit 478 Mich 589; (2007)]; Renny 734 NW2d 514 Dep’t Transportation, 490; (2007); 734 NW2d 518 South Haven v Van Buren Co Bd of Comm’rs, (2007); Omdahl v West Magna Corporation 369 v Opinion by Dissenting Markman, J. “ambiguous,” deemed has been a statute or contract of the beyond plain language “may go this Court employ and then contract],” ante at [or statute 307-308, ordinarily be un- that would decision-making factors There is no lack process. interpretative in the available I offered factors. As newly in these available variety in Haynes: my concurring opinion through a Having proper result in this case reached the Kelly analysis, in concurrence to her proper legal Justice that she opinion proceeds to demonstrate majority own (2007); Ed, 423; Bukowski Mich 733 NW2d 380 Co Bd 478 Iron (2007); Detroit, 268; [v Karaczewski Mich 732 NW2d 75 v 478 (2007)]; 28; Co, 56 Fluor & 478 Mich 732 NW2d Farbman Stein 170; Treasury, v Dep’t NW2d 722 [Enterprises, 477 Mich 730 Inc 197; Comm, (2007)]; 731 Rd 477 Mich [v Rowland Washtenaw Co Peals, 636; (2007)]; People 196 v 476 Mich 720 NW2d 41 NW2d 495; Hts, (2006); Paige Sterling 720 NW2d 219 [v 476 Mich 55; Ass’n, (2006)]; NW2d Club Ins 476 Mich 718 Cameron v Auto 425; Woodhaven, (2006); 475 Mich 716 NW2d Ford Motor Co v 784 (2006); Derror, 316; (2006); People 475 Mich 715 NW2d 822 247 v (2006); Williams, 245; People v People 475 Mich 716 NW2d 208 v (2006); Dep’t Yamat, 49; [v Grimes 475 Mich 714 NW2d 335 (2006)]; 72; Michigan v Transportation, Mich NW2d 275 475 715 (2006); Monaco, 48; v 46 Ostroth Warren 474 Mich 710 NW2d GP, 36; (2006); LLC, Ass ’n Regency, NW2d 589 Co Rd 474 Mich 709 (2005); Governor, 11; [v Devillers Auto 474 Mich 705 NW2d 680 v 562; (2005)]; Ass’n, v Reed 473 Mich 702 NW2d 539 Club Ins Yackell, 520; (2005); Ayar v Foodland Mich 703 NW2d 1 473 (2005); Distributors, 713; Twp [v Casco 472 Mich 698 NW2d 875 (2005)]; 566; State, Secretary 102 Elezovic 472 Mich 701 NW2d (2005); Co, 408; Jarrad v Mich 697 NW2d 851 v Ford Motor (2005); Co, 207; Roberts Integon Ins 472 Mich 696 NW2d Nat’l Wilkes, 679; (2004); Atkins, [v 684 NW2d 711 Neal v 470 Mich Barbee, 283; (2004)]; People 661; 470 Mich Mich 685 NW2d 248; (2004); Lively, [People [470 680 NW2d v] 681 NW2d 348 (2004); 267; (2004)]; People Laney, 470 Mich Comm, Lansing Mayor 680 NW2d [v Pub Service (2004)]. cases, clearly well as in that in each of these as It be understood should found, justice ambiguity the law would under all other cases in which “justice” personal men and women who replaced of the women],” majority. [and men not comprise This is the “rule of the Court’s rule of law. 484 Mich 300 Dissenting Opinion by Markman, could have reached the through disciplined same result less rely, means. content majority Not as she in her does opinion, language law, on the actual Justice KELLY array invokes an techniques of alternative “interpret” concurring the law in her opinion. upon She relies question; “liberal construction” of the statute in she relies upon characterizations of the statute as “broad” and “re- medial”; upon summary she relies description of the law “ambiguous,” as apparently affording therefore her the pick discretion to prefers; choose the law she she relies upon Legislature’s inaction in the wake of an earlier decision, equating court approval this to of the Court’s decision; disparages she the value of dictionaries as an interpretative essential process; tool in the and she relies upon extraordinarily an understanding broad “legisla- of history.” tive reference, For the sake of future a further catalogue language-avoidance of “interpretative” tech- niques following: would include the divining “spirit of a statute”; relying upon “public policy”; considerations of standardlessly applying “equity”; characterizing statutes judge disagrees with which a “absurd”; as concocting “balancing” “totality creative of circumstances” tests. Innovatively applied, each of techniques these can be relied upon to having avoid the hard task of to discern a statute’s meaning language. from its actual [Haynes, 477 Mich at (Markman, J., 48-49 concurring).] The use of these and other factors to reach a decision far more closely resembles the exercise of the constitution’s “legislative power” than its “judicial power.” It is an undisciplined and standardless approach to giving meaning law, enabling the judge at his her discretion to determine which factors to take into account, and what priority to give those factors.22 It is only by interpretations “It is of the law are in accord with the is, words interpretations judges lawmaker —that in which look outside themselves for a source of law —that of decisions courts are truly Robertsonv politics removed from the realm policymaking.” of DaimlerChrysler Corp, 732, 761; Corporation Magna Opinion Dissenting Markman, J. powers23 of separation disrespects approach an expense at the judges the power enhances and that of law.24 the rule AND AMBIGUITY

B. DISSENT in stands ambiguity definition of Justice’s The Chief approach predominant what has been contrast Comm, Lansing v Pub Service In Mayor our state. stated (2004), this Court 154, 166; 680 NW2d Mich if it ambiguous law provision that “a or when provision another ‘irreconcilably conflict[s]’ with meaning.” single to more than a susceptible it is equally Group United Ins omitted.) (Citation Similarly, Klapp (2003), Inc, 459, 467; 663 NW2d Agency, two ambiguous because to be Court found contract with each other.25 “irreconcilably conflict[ed]” provisions judge restricts understanding ambiguity Such tive, executive and know in advance what shall expressly guidance itself period] to find Chief Justice tion of that the Chief his or her the making dispensing dispute difficult statute ^[23] “Tjjg 25 people’s In her assertion “[I]t 753 NW2d 106 439, 467; exercise against the traditional a vice be is to the words of the statute powers of provided ambiguous hands in the face of even directing representatives fails to mention that Justice would powers properly of a any 613 NW2d its means in order his or her judge statutory language in this constitution.” drafter). judicial. government (2008). his actions. that and the rules of rule contra laboring this Court “has 307 then resolved this obligation Perhaps No See also make a virtue of a are (2000). to ensure that person belonging are divided respected. This is the essence hard to determine what this Court found society more to the proferentem, Stone v ambiguous,” itself that exercising powers Const say to another branch slightly are.” Robinson declined into three branches: what Williamson, 482 Mich judge quickly the ambiguity point, a citizen first looks for legislative (resolving a contract the the contract in difficult statute ante of the rule of law: [during art law however, at 311 n by 3, § of one v even a means, throwing up Detroit, the decisions a 2. except four-year it is odd applica branch legisla- 23, highly Klapp while 144, 462 and the as

372 484 Mich 300 by Dissenting Opinion Markman, based saying what law “is” on the words chosen extraordinary in all the most circum- Legislature but suggests stances. While Chief Justice that the relative rarity of a law or finding ambiguous contract vice, under 322-323, this definition constitutes its ante at within preserving ordinary broader realm which process interpretation may and in proceed, which lawmaker, deference will shown to the decisions of the may be better understood as its principal virtue. disputes Many before this Court involve difficult or complex interpretations contracts, of statutes and yet it remains our to sort out these responsibility difficulties finally complexities determine what constitutes reasonable, the most if not always perfect or the crystalline, meaning of the law. Judges traditionally have approached this responsibility by looking to the language contract, of a statute or considering relevant dictionary assessing definitions words and phrases,26 exist meanings art,”27 ence and of “terms evaluating the context of words28 and grammatical, syntactical, and clues,29 punctuational comparing related compan ion of the provisions law,30discerning organization 26 Services, Inc, 304, 312; See Koontz Ameritech 466 Mich 645 NW2d (2002) (stating “may dictionary that a court consult definitions” to statute). help meaning ascertain of terms not defined in the interpretation “It is a cardinal rule in the of statutes that words acquired meaning, which have a well-defined technical are to be under People, 142, stood in technical .” their sense ... Pitcher v 16 Mich (1867); see also MCL 8.3a. “ ” phrase given meaning by setting. Tyler [A] word or its context or (1999). Schools, 382, 391; v Livonia Pub 459 Mich 590 NW2d 560 Valley Ward, 230, 237; See Sun Foods Co v 460 Mich (1999) (stating “statutory language must be read and understood in context”). grammatical its interpretation statutes, “[I]n the are take into we view all parts subject.” Malonny Mahar, such as relate to the same Magna Corporation 373 Opinion by Dissenting Markman, J. contracts,31 invoking of and and structure statutes interpretation,32 default and maxims of rules traditional understandings legal purpose of proper and applying and precedent.33 mechanical not understood as a

This should in this ex- conscientiously process, judges engaged the meaning about the of disagree sometimes ercise will the directed law, it is a in which focus is process but or con- language toward the statute outwardly tract, predi- than toward inwardly personal rather Felix once judge.34 As Justice Frankfurter lections of (2007) 180, 190; City, v Traverse 479 Mich See Lash purported purpose (rejecting argument regarding as the statute’s statute”). “completely contrary being the structure of to (2006) 180, 198; See, Haley, e.g., In re 476 Mich 720 NW2d (“[Wjhere related, statutory provision specific a a and a statute contains controls.”). general, provision, specific one but more Park, 675, 694; City 641 NW2d See Pohutski Allen of (2002) understanding aspect proper (emphasizing that to the of a crucial precedent applied mechanically prevent this it to is that “should not be meaning overruling regarding decisions Court from erroneous statute”). “ approach by stating ‘plain disparages The Chief Justice susceptible meaning’ approach statutory interpretation equally to arbitrary legislative subjective because and determinations of intent” may dictionary approach of one definition “such an lead to the selection specific among many n 35. Justice thus for a term.” Ante at 313 The Chief very enterprise judging by suggesting that it can never be damns the “subjective” “arbitrary,” may anything some other than for words multiple meanings. The Justice then defends her own times have Chief judicial effectively interpreta declaring approach to the that all role another, judge, gets nothing way one but a fiction in which the tion is is, impose personal interpretations his own That since of the law will. difficult, may application judgment can sometimes be entail (a discernment, “plain approach interpretation meaning” by any justices dissenting incidentally never used characterization case) superior post-ambiguity approach to has no to a in this stature By given respect interpretation in no whatsoever. which words are process equating imperfections in a in which inherent human seriously in a language the fundamental defects inherent is taken 484 Mich 300 Dissenting Opinion by Markman, J.

remarked, judicial duty “the highest exercise subordinate one’s and one’s personal private will views to the law.”

C.PREMISESOF AMBIGUITYRULE the Chief Justice’s view that an Despite understand- ing ambiguity “binding prece- of does not constitute dent,” she nonetheless undertakes a strenuous effort to precedents of her identify support position, while process language judge’s personal in which is to a subordinate sense of preferred, imagine mistaken, which are to results it is hard to a more cynical, judicial enterprise, encapsulates and view of the albeit one that persistent jurisprudential well the constitutional and divide between the justices justices. majority dissenting in the the and Concerning Liberty Livonia, Housing Corp City 44, Hill of (2008), which the Chief Justice as cites somehow exemplifying “plain meaning” approach, the of defects the this Court explained: third, fourth, meanings The and fifth in the definition are clearly meaning “occupy” not relevant here. The first defines as have, hold,. possess,... parts claim[.]” “to .. or These of the synonymous ownership. definition are with Because the statute conjunctive occupied,” however, uses the Legislature term “owned and meanings must intended have different words Otherwise, “occupied.” and “occupied” “owned” the word would surplusage.

be mere Thus, Liberty See also id. at 57 n 12. Hill relied on the maxim that the rendering portion nugatory Court avoid should of the statute i.e., surplusage, give should Court effect to all words of the Legislature. Thus, contrary assertion, Liberty to the Chief Justice’s Hill responsible judge, attempting faithfully give demonstrated that a law, meaning pick to the not does have “unfettered discretion and ” among ‘plain meanings,’ 321, choose available ante at but rather is by existing rules, by interpretative approaches, bound that are judge parties well-known both to the and the beforehand. While such an “interpretivist” approach dispense entirely or “textualist” cannot with judgment, approach preferred by exercise unlike the the Chief Justice, interpretative game” approach “rules of the under the former designed reasonably will be known in advance and are ascertain the of the intentions lawmaker. Magna Corporation Opinion by Markman, Dissenting actually justify her effort to undertaking no discernible an “ab- constituting Rather than understanding. own at n interpretation, ante approach to errant” a rule forth of statu- Klapp set Mayor Lansing rules, that, as most other such interpretation tory sense, designed and common is grounded logic faithfully Legislature. the intentions ascertain Mayor understanding ambiguity The articulated longstanding Lansing premised upon and Klapp are government constitutional sound principles following directed toward suggested inquiries understanding: a broader those who would advocate discerned, ordinary rules ambiguity is of inter- —-When asserts, pretation longer apply no the Chief Justice —as may beyond language of “go plain a statute court then judges contract]” are broad and arbi- [or accorded —and trary pick among and discretion to choose from a wide variety given to how should of factors as the law be any responsible system meaning. Why legal to would wish ordinary processes, ordinary depart from from rules of its interpretation judicial of the and traditional exercises absolutely power, any greater frequency with than is re- quired? discerned, ordinary ambiguity is rules of inter-

—When asserts, longer apply no Justice a pretation the Chief —as may beyond language of “go plain the a statute court then judges contract]” are broad [or accorded and arbi- —and trary pick among to and choose from a wide discretion variety given of as to how law should be factors the system meaning. any responsible legal to Why would wish arbitrary, replace reasonably predictable a of law with rule any possibly idiosyncratic, judges and determinations absolutely required? more often is than discerned, ordinary ambiguity rules of inter- —-When is asserts, pretation longer apply no the Justice a Chief —as language may “go beyond plain the of statute court then a judges contract]” are broad and arbi- [or accorded —and trary pick among to choose from a wide discretion 484 Mich 300 Dissenting Opinion by Markman, variety given of factors as to how the law should be meaning. Why any responsible legal system would wish to judges minimize the realm which are bound the the written law and instead maximize realm which subrogated variety written law is to indeterminate judge’s disposal? at a factors discerned, ambiguity ordinary —When rules inter- pretation longer apply asserts, no the Chief Justice —as may beyond “go language plain court then the of a statute judges [or contract]” are accorded broad arbi- —and trary pick among discretion to and choose from a wide variety given of factors as to how the law should meaning. Why any responsible legal system would wish to litigants public personal instill in the idea that the preferences judge, requirements of a rather than of the law, important what legal are is most resolution of a dispute? discerned, ambiguity “judicial power,”

—When only power properly by judge exercised under the Constitution, incompatible is exercised in a manner asserts, may its usual exercise—as Chief Justice a court “go beyond plain language then of a [or statute con- Why any responsible legal system tract].” would wish depart from traditional constitutional norms or obscure separation powers? the Constitution’s contrast, By logical what or other arguments does the substantially Justice have for expanding the Chief judicial range decision-making within which courts beyond “may go plain language of the statute [or contract],” and within which “it duty is the of the courts,” lawmaker, instead give a “reasonable and sensible” interpretation to the law? Ante at 307-308. What conceivable arguments does the Chief have favoring Justice for in expansion range of judicial decision-making within which are judges em- powered devise, at discretion, their ad hoc and unpredictable for determining criteria the law how will be defined? Hers opinion, is hollow evidenced not only Magna Corporation Opinion by Dissenting Maekman, for even her own standards by her failure to abide by her failure to articu- by but also identifying ambiguity, for these standards.35 justification a minimal late even OF RULE D. LOGIC AMBIGUITY language ambiguous asserts The Chief Justice that by reasonably being of understood “capable it is when senses,” in more different two or persons well-informed for any explanation never supplies at but she ante in the real operate practically is to how this definition answer, ask, or whether there is She even world. fails be said that an beyond which it can some threshold understood rea- “capable being by interpretation is or more different persons in two sonably well-informed sufficient, finding ambigu- it example, Is senses.” “reasonably all well- that 10% or 20% ity 30% in- might particular persons” informed subscribe Indeed, parties is it that sufficient terpretation? intervene to deter- merely disagree, or must Court of each side is itself reasonable? position mine that the can standard Mayor Lansing/Klapp Given that the i.e., equally if there are two quantified as a 50% test — ambiguous; other- reasonable law is interpretations, Justice characterize it is not —how would Chief wise at is the threshold approximate her standard? What ambiguous? any a law be found Unless which should justify that she not her standard The Chief Justice asserts need similarly jurisdictions light stan the fact other utilize worded Ante at & nn 73-75. relevance of dards. 330-331 Whatever observation, any applied have been one these variants doubts wildly jurisdictions overreaching manner in the reflected other decision, potentially “ambiguous” reflected breadth of instant opinion, and in the Chief Justice’s own cited at n 21 of this reflected cases law, Haynes, at finding “frequent ambiguity” passion for in the J., concurring). (Kelly, Dissenting Opinion by Markman, J.

disagreement by any single “reasonably well-informed personf]” trigger finding would be sufficient to a ambiguity, is If point? percent where this threshold “reasonably well-informed persons” all believe that proper interpretation X, a statute is and 10 Y, percent that it is or if a is judge believe 90% persuaded interpretation X, that the more reasonable is Y, persuaded ambiguity? and 10% that it is is there Obviously, the Chief Justice’s threshold finding ambiguity 50%, falls approxi- somewhere below but mately Are any where? there other areas of the law in a judge, judge’s which the exercise of the fundamen- obligation law, tal to must interpret subordinate his judgment or her own concerning meaning of the law to of “reasonably well-informed persons,” [other] any or group to other of persons? that the

Given Chief Justice’s threshold must neces- sarily be 50%, why less than should that level ever be deemed sufficient to a with judge dispense allow language of a statute or as dispositive contract in determining meaning? is, factor its That if judge a or 61% 71% persuaded 51% or that some interpretation better, of the law reasonable,” or the “most interpretation, what is the allowing rationale for a judge the law in interpret some different fashion? would a Why judge adopt interpretation ever that he or second-best, she believes is the or the second most reasonable, interpretation? If any interpretation of the law, concerning which a than judge is less certain 100% —say a certainty 95% ever permit judge —will better, such adopt interpretation as the or the “most interpretation, why reasonable” what is the reason interpretation 51% or 61% or 71% prevail should not over 29% or 39% or 49% interpretation less —much respect what the Chief Justice describes as “more” interpretations might offered, .that see ante Magna Corporation Dissenting Opinion Markman, legitimacy may from their draw 329, none of which at Why shouldn’t or contract? of a statute the words interpretation al- reasonable,” “most better, or the perfectly ways prevail? clear statute or Absent a prefer judge why the 51% or not contract, should Why interpretation? or 39% a 29% should or 71% 61% par placed interpretation with a 71% on ever be why interpretation? a definition Indeed, should 61% judge adopted ambiguity to deter- that allows be reason- 25% “most the 75% nor the that neither mine adopted? interpretations Ante at be will able” Why better, it fair to conclude isn’t 328-329. may interpretation reasonable,” the “most or —which simply interpretation the correct the 51% be —is interpretation of the law? parsing interest has little Justice The Chief why explaining 315(1), § either of the little interest interpretations parties’ “unreason- “reasonable” or is why, explaining in either interest able,” and little understanding logical terms, her or constitutional why ambiguity makes better sense, it much less makes Klapp Mayor Lansing have set than what sense proceed, Instead, Chief Justice is content forth. upon explanation, of the her deconstruction without Michigan. law of RULES ESTABLISHED

E. NO PREVIOUSLY 315(1) consuming § “analysis” of After her —one sideways glance paragraph nearly and in which a full immediately preceding one in dis- at the sentence excessively rigorous apparently pute seen as —the “ambiguous,” i.e., al- the statute Justice deems Chief “reasonably apply.” interpretations She could ternative among “in- proceeds the available from to select then terpretative” purportedly adopt those that tools 484 Mich 300 Dissenting Opinion Markman, support Apparently, every ambiguous her result. for reaching Court, statute or contract this and there will many such statutes contracts if Chief Jus- tice’s ever she position prevails, will re-embark upon “interpretative” process, picking and at choosing among her discretion from some uncertain array of “beyond tools lying plain language [or statute See Haynes, (MARKMAN, J., contract].” Mich at 48-49 concurring), partial listing of such tools. The will, litigants course, have no notice beforehand of which tools are to be employed, justices for the them- not selves will know Among this beforehand. the uni- verse of potential extending tools “beyond plain language of the contract],” statute the Chief [or Justice will, by quite some means never explained, determine which of these are to be deemed relevant in interpreting case, statute contract in that and after several turns and twists of the mechanisms of her own internal machine, Enigma result emerge. some will One result will if the emerge legislative “relevant” history, for example, Senate report, committee another result will if emerge the legislative history “relevant” is the House report. committee Still other results will emerge if the “relevant” legislative history comprised of statements the or Senate House committee chair- man, the floor of statements the Senate or House leader, majority the committee of testimony witness A in B, the Senate or that C, of witness D in the House, or analyses the staff Senate, of the House or the or the floor of colloquy two random the members of House or two other random members of the All all, Senate.36 in 36 See, Pride, e.g., Nat’l in the which Chief in her Justice dissent proposed give meaning allegedly “ambiguous” provision to an of our by assessing language campaign by constitution private the of brochures organizations, Michigan Rights Commission, statements of the Civil the telephone survey, private results of and a “wealth of extrinsic informa- Magna Corporation Opinion Dissenting Markman, J. legal is not a that it except process, is a fine this judges in Instead, it is a which process judicial process. factors to be the tools and selecting very guise in the effectively its are the law “interpreting” in employed the wielding are short, judges formulators —in who judicial, power. not legislative, committed strength judicial philosophy of a A critical “judicial power” the constitution’s exercising only are es- decision-making reasonably clear rules that is, essentially judge That tablished fact. before decide their that he or she will parties promises others, to discern case, by attempting all as with statutes or contracts meaning of relevant reasonable relying upon recognized will be done and that contrast, under By rules, tools, interpretation. in which ambiguity, approach Justice’s the Chief tools, rules, and array of essentially a limitless there is from apart the law “defining” employed bemay consistently interpre- applied is no there language, its before- judge promises with which process tative “fair,” to"be may promise she He or comply. hand to (Kelly, J., dissenting). Pride, In Mich at 95-96 tion available.” Nat’l stray any rejected “apparent proposition majority response, her meaning guidance giving jetsam can serve as flotsam or bit ofhistorical Kelly, The weakness n 25. See also constitution.” Id. at 84 to the fatal statutory approach majority’s Michigan Supreme textualist Court (2008), Cooley in which construction, & L TM J Prac Clinical history, legislative justices’ dissenting “distrust” of she describes the “distrust,” understanding any for this evidencing of the basis without types differing recognizing attitudes toward different and without go See, e.g., opinion. It not history. 11 of this should legislative note history, case, legislative that cites it is the dissent that in this unremarked legislative statutorily grounded type of uniquely persuasive and albeit 315(1), interpreting § the Chief history, while factor as a relevant apparent legislative history, Justice, for no presumed advocate Why? Apparently post-ambiguity toolbox. from her reason excludes this to, and she can this factor if she wants chooseto consider because she can does not want to. this factor if she not to consider choose 484 Mich 300 Dissenting Opinion by Markman, J. fair, may he or she seek to but no be there are rules for fairness is only how this is to be achieved. There promise that address a judge dispute will each on basis, and case-by-case using rules, whatever whichever tools, he or she believes are in that required instance. suspicion And the cannot be simply avoided these rules, tools, varying and indeterminate and be may a function largely preferred by judge of the outcome and or personal his her attitudes the parties toward and Any interpretative their causes. will rules be iden- tified fact, may may and these “rules” or after not resolving yesterday’s have been invoked in dispute, may and or may employed resolving not be in tomor- can dispute. Any judge row’s concoct an after-the-fact a decision; judicial however, rationale for process, is predicated upon An ad rationales. hoc before-the-fact not process judicial at process place all. In the predetermined rules —otherwise as the understood rule of law—the Chief would Justice substitute rules to be determined later.37 approach glimpsed The arbitrariness of Justice’s the Chief can be in Haynes, (Kelly, J., concurring), at ATIMich in we which are instructed ambiguity arises, judge may jurisdiction’s that whenever consider another “substantially Michigan statute that similar” to the statute before “[Foreign] jurisdiction’s interpreting him or her. case law [that regard interpretation statute] is instructive with to the correct of our Yet, shortly DaimlerChrysler Corp, statute.” Id. in thereafter J., result), concurring at 241 in the we are instructed (Kelly, judge that, “[g]iven same that these cases involve statutes that differ Michigan’s statutes, from I them find of little assistance determin ing interpretation proper Michigan enough; statute.” Fair may legitimately things. distinctions made in these kinds But jurisdictions States,

where there are 49 other state in the United jurisdictions, private thousands other local of other millions jurisdictions, terribly contracts entered into in these it not seem would identify someplace difficult to somewhere statute contract interpretation support interpretation whose can be an invoked sought any apparent obtained in he this state. Nor is there reason why appropriate amorphous case one of the Chief Justice’s Corporation Magna v Opinion by Dissenting Markman, J. THIS CASE JUSTICE’S TOOLS IN

E CHIEF post-ambiguity of available among the universe What to consider Justice choose does the Chief tools Justice states here? The Chief reaching her decision inter- tools, her “caselaw,” among supports other 315(1). factor, the Chief evaluating § In this pretation consider- “public policy” broad mainly Justice invokes Justice, Harvlie citing the Chief example, For ations. 69, that the emphasizes Mich ACO Corp, Jack Post importance recognized has explicitly “WCAC respon- carriers their insurance holding employers to attorney pursuant fees proration sible for 315(1).” Harvlie, Yet, “impor- this Ante at 332. § attorney fee following: “The from the tance” was drawn promote to designed of Section 315 was provision dispute in medical cases where counsel assistance of from which no loss benefits wage there are minimal or (emphasis at 3 fee.” 2006 ACO attorney to an obtain added). essence, interpreting found that In Harvlie 315(l)’s employer pay an require § final sentence attorney an likely more attorney fees made it recovery available case in which the would take a Thus, “importance” costs. based on medical was is based on majority interpretation enforcing in Harvlie though reasoning “design” even putative majority interpretation this out. The way in no bears counsel” the assistance of obviously “promote not does same recovers the the employee’s because the recovered fee calculated on contingency amount —the fees. See who his pays expenses regardless medical — Thus, “design” supposed opinion. notes 4 and 5 of this Nonetheless, is a one. forth in Harvlie set false France, judicial from post-ambiguity not consist of a decision tools could Simmons, Guinea, Azerbaijan. See, generally, Roper v 543 US or New 1183; 2d 1 125 S 161 L Ed Ct 484 Mich Opinion by Dissenting Markman, Chief reasoning Justice insists that this somehow sus- guidance tains her better interpretation supplies 315(1).38 § than the actual words of Boyce The Chief Justice next on relies Grand Co, 546, 552; Rapids Paving App Asphalt (1982), in which, NW2d 28 after resolving workers’ compensation attorney fees on the dispute grounds that an administrative rule did an employee not allow recover a medical provider employer,39 fees from proceeded opine Court that such result did not “justice.” However, serve whatever individual judge’s sense of it is personal “justice,” the responsibil- ity “justice of that to do judge Judges under law.” have no proper authority to countermand the decisions of the by substituting lawmaker a personal “justice” sense of for justice of the I agree law. that there can be disagreement reasonable as to whether the position asserted or plaintiff by defendants this case more “just.” However, that has question never been thought to dispositive, relevant, be or in giving even meaning contracts, to statutes and and it is not made more dispositive relevant because it was addressed by the Many persons, including lower court. judges, may have a strong personal sense “justice” public —how resources should be apportioned, rights how and respon- 38 “public policy” argument The Chief also Justice cites Harvlie for her employers employees’ fees, that if attorney are not held liable for employers deny will “have incentive to medical benefits.” Ante at 332. Yet, consequences corollary “public policy” she never examines the of the employers penalized they wherein would he fees even if have dispute employee personal injury “receive!] valid that did not 418.315(1). arising employment.” out of and in course of MCL Appeals The Court of cases that also followed adhered to this rale. Co, 610; (1984); Duran v App Sollitt 135 Mich Constr Community Hosp Wal, App Zeeland v Vander 351 NW2d (1984); Wayne Co, Nezdropa App 451; NW2d Corporation Magna Opinion by Dissenting Markman, J. understood, gov- how the limits of should sibilities under “justice it is be defined —but ernment should that judge of the law” the tool of the trade Moreover, if even ascertain- power. the judicial defines in the instant “justice” constituted abstract ing what mission, Justice the Chief did define this Court’s case her why conception explain purports even never employee’s work- employers pay “justice” requiring — superior somehow attorney fees —is compensation ers’ that of including “justice,” conceptions alternative a differ- rely upon chosen to which has Legislature, Justice.40 rule than the Chief ent “reme- also relies on WDCA’s The Chief Justice Ante at her interpretation. nature” to support dial . . . remedial, provides because it The WDCA is indeed 332. Yet, the injured job. on the remedy employees as explain why purpose, fails to Chief Justice is, elevated above obviously as it should be important The WDCA is Legislature. of the every purpose other pur- fulfill at least two attempt Legislature’s Karaczewski, personal increasingly arbitrary aristocracy guessing] these precondition to premiums. health lic during competing Chief Justice such as (Markman, “overturn[ing] compromises “justice” ^[40] “Thg policy.” post-ambiguity oral the economic or brand of people J., concurring). judgments competitiveness interpretations upon One argument “public policy” 478 Mich at 43. nor judicial may have not forfeited might any “justice” tools of simply impact other decisions have inquire It is also unpredictable.” of alternative rewrite laws made in the also suffers from the “justice” The thought justice Michigan’s of lawmaker, into competing interpretations predicated upon Chief workers’ lawmaking authority strange anything even such Justice’s reliance on her businesses, with which interpretations legislative process, “public Rowland, made the that, inquiries compensation relevant rendering] despite “justice” policy,” lack or the they disagree.” slightest regarding relying upon to a Mich at 226 be a useful of neither the insurance impact upon virtue of § judicial second- 315(1), effort “pub own law of 484 Mich 300 Dissenting Opinion by Markman, J.

poses: ‘provide “to ... not employees a remedy which is both expeditious and independent proof fault, employers but also for a liability which is limited ” and determinate.’ Simkins v Gen Motors Corp (After Remand), (1996) 703, 710; (citations omitted).41 By arbitrarily establishing priori- among ties WDCA, several purposes of the the Chief Justice undermines the real-world negotiations and compromises that engaged were in by Legislature. In the of a place statute enacted by majority of the 148 Legislature, members of the the majority interpretation substitutes a statute approved only by four judges acting well beyond their proper authority.

The Chief Justice then asserts that she is empowered to “construe the act’s terms liberally,” ante at 332— rather than merely “reasonably.” As a result of this process, one essentially indistinguishable judge from a asserting his or her right place a thumb on the scales justice, the Chief Justice proclaims plaintiff entitled under the WDCA to greatest possible amount recovery. Ante at 332. Is there more anything to the Chief Justice’s “liberal” construction than that plaintiff prevails on Is everything? this all that implied by a “liberal” construction? At point what does the Court decide that its “liberal” construction has fully accomplished goals of the WDCA? When the em- ployee receives all that he asks for? When an employer can longer no afford to maintain insurance, its cannot afford to maintain an employee? Does a “liberal” construction militate in favor even of a recovery of benefits that is not contemplated by the actual language compensation “represento Most workers’ compromise statutes competing between the interests of employ disabled laborers and their ers.” Potomac Electric Compensation Power Co v Workers' Office of Programs Director, 268, 282; 449 US 101 S L Ct 66 Ed 2d 446 Magna Corporation Dissenting Opinion by Markman, from the outset Having the WDCA? declined of 315(1), §of any interpretation “reasonable” attempt pro- about Chief Justice is far more enthusiastic immediately to a claiming “ambiguity” proceeding is, That in the of an interpretation. place “liberal” meaningful in some interpretation grounded that is itself, prefers the Chief Justice much way upon the law really that is not an “interpretation” interpretation an merely in engages political impulse, at all. She what is than of the law as any rather serious construction of the might expected justice once have been from working Court of this state. Rather than Supreme the “best” or “most reasonable” inter- possible achieve law, Justice, Chief pretation apparently of the an fearing good that little would come from such instead exercises a that does not approach, power actually is belong judges pretext under the she law, engaging genuine interpretation in some of the genuine albeit a While a inter- interpretation. “liberal” of the achieve as pretation designed perfect law as what the lawmaker has understanding possible intended, interpretation a “liberal” here to be appears achieving particular little more than a means to result. short,

In under the Chief Justice invokes her own some standing ambiguity purpose providing for her justification preferred “going beyond course statute,” plain language thereby avoiding of the statute, giving meaning the difficult fair to a process meaning may liking. the fair of which not be to her “No judge ambiguity.” Paige should manufacture v Ster (2006) Hts, 495, 542; ling (CAVANAGH, J., omit concurring part) (emphasis ted). Yet, longer any there is no need to “manufacture extraordinarily low thresh ambiguity” light Chief Justice’s old which it can be found under the MICH Dissenting Opinion by Markman, J. every definition. In virtually ambigu- instance which ity invoked, the Chief Justice would circumvent the language actual of a statute or contract in favor of her own notion of how statute or contract should be configured.

G. STARE DECISIS stating After that “stare decisis apply” does not the Mayor Lansing standard for determining ambi- guity, 36, ante at 314 n the Chief Justice nonetheless opinion devotes almost third of her to rejecting the Detroit, stare decisis test in v 439; Robinson 462 Mich (2000), 613 NW2d 307 constructing test, a new and then “applying]” Mayor it to Lansing. It should be emphasized one other justice agree- is in ment.42 This leads to several concerning reflections Chief Justice and precedent:

(1) The Chief Justice has repeatedly criticized other justices for “unnecessarily” overruling precedent.43 What could be less “necessary” than to overturn a case she characterizes as nonbinding precedent? The Chief Justice has also previously stated that a departure from 42Although applies newly “compelling the Chief Justice her formulated justification” Mayor Lansing standard to conclude that should be overruled, neglects apply she even to her new stare decisis standard regard, determine whether Robinson itself should be overruled. In this opinion. see also note 47 of this 43 See, example, Smith, People 292, 331; v 478 Mich 733 NW2d 351 (2007) (Kelly, J., Rowland, dissenting); J., 477 Mich at 248 (Kelly, concurring part dissenting part); Pitoniak, 30, in in Joliet v 475 Mich (2006) 46; J., dissenting); Rory 715 NW2d 60 v Continental Ins (Kelly, (2005) Co, 457, 492; (Kelly, J., 473 Mich dissenting); People 703 NW2d 23 (2004) Hickman, 602, 618; v J., 470 Mich 684 NW2d 267 (Kelly, dissenting); People Kazmierczak, 411, 427; v 461 Mich 605 NW2d 667 (2000); (Kelly, J., concurring part dissenting part); in v Mudel (2000) Co, 749; 691, Great Atlantic & Tea 462 Mich 614 NW2d 607 Pacific J., concurring part dissenting part).’ (Kelly, Magna Corporation by Dissenting Opinion Markman, supported by “special justifi- must be some precedent justification” could exist to “special cation.”44 What formally a case that does not consider overrule she binding precedent?45

(2) Given that in this case the Chief Justice would one, overrule, not but two of this Court’s expressly prior decisions, naturally tempted re-inquire,

one is see Rowland v Comm, 197, 223-228; Washtenaw Co Rd (2007) (MARKMAN, J., concurring), NW2d 41 whether the ongoing dispute majority [former] between the and Justice overrulings precedent truly KELLY over concerns atti merely tudes toward stare decisis or attitudes toward Smith, particular previous [People of this decisions Court. (2007).] 322-323 n justice’s “A on stare decisis is not perspective evidenced willingness precedents her to maintain with which agrees, willingness she but her to maintain prece- Rowland, disagrees.” dents with which she 477 Mich at (MARKMAN, J., n concurring). 224-225 3 Now that Chief positioned Justice overrule decisions with disagrees, which she her actions demon- increasingly fealty strate that her former claims of toward stare decisis were considerably Despite overstated. all her rhetoric concerning importance of stare decisis for see, the exercise of the judicial power, e.g., her hollow claim that she possessed “differing [and elevated] 44 See, Gardner, 41, 85; example, People v Mich 482 753 NW2d 78 (2008) (Kelly, J., Rowland, dissenting); J., 477 Mich at 254 (Kelly, concurring part dissenting part); People Davis, 156, in and in 472 Mich (2005) 189; J., Hickman, dissenting); 470 Mich at (Kelly, J., Robinson, J., dissenting); 616 462 Mich at 476 (Kelly, (Kelly, concurring part dissenting part). in and in 45 assertion, 63, Contrary to the Chief Justice’s ante at n 326 nowhere opinion ambiguity in this is it stated that a standard for is or is not “entitled to stare decisis” consideration. 484 Mich Dissenting Opinion by Markman, J. justice, People

esteem for stare decisis” than another Gardner, 41, (2008), n 753 NW2d reality in little more than a means of such rhetoric was overruling her communicating opposition particular agreed.46 decisions with which she past (3) Rowland, As I also asserted in 477 Mich at 226: meaningful of a court’s

[N]o discussion attitude toward solely analysis precedent can be based on an arithmetical in overrulings simply which raw numbers of are counted. analysis precedents not built Such an obscures that all are alike, others, that some are better reasoned than that some discretionary grounded judgments are in the exercise of interpretation plain language, and others in the thorough analyses superficial. some are in their and others my concurring opinion The chart attached to in Row- majority’s land demonstrates that the former overrul- precedent occurred in cases ings overwhelmingly involving then-majority justices what viewed as the “misinterpretation straightforward words and contracts, in phrases statutes which words that were not there were read into the law or words 226, were there were read out of the law.” Id. at contrast, 228-247. In majority’s overrulings new result, precedent just has moved toward the opposite sought give decisions that reasonable replacing Gardner, The Chief Justice also stated in 482 Mich at that “stare requires give thoughtful [earlier] decisis that we those decisions thorough tossing Rowland, consideration before them aside.” See also (“The changed. Only wearing 477 Mich at 256 law has not the individuals amazing changed. the robes have It is how often the members of this majority capable understanding have declared themselves more before.”) reaching “right” any justice law and result than who sat (Kelly, J., Davis, concurring part dissenting part); at (overruling multiple jurisprudence. cases “destabilizes our state’s It suggests public sitting to the that the law is at the whim of whoever is on Surely, Supreme public’s Court bench. it erodes the confidence in our judicial system.”). Magna Corporation Dissenting Opinion by Markman, meaning to the words of the law with decisions which “words that were not there were read into the law or is, words were there read were out of the law.” That when the previous majority precedent, overruled a it was to ensure that the decisions of this Court more closely judgments reflected the of the elected people’s legislative representatives and it closely was to more align contrast, case law and statutory By law. when the majority overruled, new has ignored, or at least it precedent, has been to create a greater disparity between that statutory case law and the law.

(4) Indeed, since Chief Justice KELLY part became a majority, the new majority has dealt prece- it dents did not like in an especially inappropriate by simply ignoring In them. the interest of manner — clearing the law of this state multiple and inconsis- tent precedents law, on the same matters of the former majority forthrightly and explicitly prece- overruled dents and never sought to obscure this process or to misleadingly minimize the number of pre- overturned cedents, by either ignoring disfavored precedents dubiously “distinguishing” prior case Doubtlessly, law. cognizant because it is between gap past its extolling rhetoric the importance of stare decisis and its present actions disregarding decisis, stare the new majority has made an increasingly regular practice simply ignoring inconvenient precedents.47 As a result 47 See, e.g., Halperin, Vanslembrouck v (2009), 483 Mich 965 an order majority ignored Vega Hosps, entered in which v Lakeland the new 243; Saginaw Services, (2007); Hardacre v Vascular 736 NW2d 561 (2009), Borgess 483 Mich an order in which it failed to follow Boodt v Ctr, 558; Med (2008); Shepherd Sazima v Bar & 481 Mich 751 NW2d 44 Restaurant, (2009), 483 Mich 924 an order in which it failed to follow Chrysler Transport Lines, v Blue Arrow 606; 295 Mich 295 NW 331 (1940), (After Remand), Camburn Northwest School Dist 459 Mich 471; Holbrook, (1999); (2009), Juarez v 483 Mich 970 Khouri, order in which it failed to follow Smith v 484 Mich 300 Opinion by Dissenting Markman, J. in come, rule of law will be stunted to the clear years

for will be able legal practitioners judges this state as inconsistent competing and pick to and choose between precedents.

(5) stan- concludes that Robinson’s The Chief Justice “insufficiently is overruling binding precedent dard for “not once has the Court precedent” of because respectful prior decision.” Ante at upholding cited it as a basis for omitted). however, Justice, The Chief (emphasis 315-316 of occasions illuminate the reader as to the number fails to was binding precedent has concluded that on which she maintaining an yet joined opinion decided and wrongly Perhaps, this is because answer precedent. joined the Chief Justice an “never.” Not once has (2009), (2008); Beasley Michigan, in v 483 Mich 1025 an order NW2d 472 Rowland; v Farm Mut Automobile Ins which it failed to follow Scott State Co, (2009), in failed Thornton 483 Mich 1032 an order which it to enforce Co, 643; (1986), v v Mich 391 NW2d 320 and Putkamer Allstate Ins (1997); America, 626; Corp 454 Mich 563 NW2d 683 Transamerica Ins (2009), Auth, Wayne Airport in Chambers v Co 483 Mich 1081 order Rowland; Shabahang, again and Bush v which it failed to abide 156; (2009), ignored in it Roberts v Mecosta Co Mich 772 NW2d which (2004) (Roberts Remand), 679; (After Hosp 684 NW2d 711 Gen II). precedents altogether, McLeary, ignoring In addition to see Potter (2009), majority the new avoided which II, seriously overruling for an illustration of a dubious “distin- Roberts precedents, guishing” precedent. Such treatment of inconvenient “comprehensive response” to these reflected also in the Chief Justice’s Potter, charges, Mich at 426-429 ante at 326 n which cites (Kelly, C.J., concurring), may of occasions on which well reduce number overruled, they nothing uphold precedents explicitly have been but do decisis, purpose be the the values of stare which would seem to whole exercise, multiple precedents allowing while and inconsistent end, resolving define the law of this state. In the there is no shortcut to justices majority dissenting are correct in their whether the new or the majority doing. identify We can what characterizations of what the majority, identify questionable decisions of the we believe precedents, to reach his or her own relevant and invite the reader conclusions. Magna Corporation Dissenting Opinion by Maekman, J.

opinion finding justification,” “compelling any basis, upholding other decision prior that she believed wrongly was decided.48 the point, More to however, in disparaging Robinson, impact Chief disregards Justice that cases in which Robinson would have been viewed as militating against an over- ruling precedent would have precisely been those cases in which there never would opinion have been an issuing from this Court the first place.49

(6) In response my concurring opinion Rowland, then-Justice stated: KELLY challenges

Justice MAEKMAN develop my me to “own concerning standards” prece- when I would overturn dent. But I have my no need to create own standards when well-reasoned standards have been established country in the laws of years. for over 150 As noted in Oyer], McDowell precedents [v when are “free 48 responds upheld The Chief Justice that she has not what she viewed wrongly precedent as a “compelling justification” decided under the standard because that Michigan during “has never been the in standard years justice.” [her] However, that, as a point Ante at 326-327 n 63. “special justification” standard, see, even under e.g., her own similar Gardner, J., dissenting), any 482 Mich at 85 or under other (Kelly, standard, joined opinion the Chief uphold Justice has never what wrongly she precedent. viewed as a application decided Her of her “special justification” standard also belies her claim that she “followed subsequent Robinson in cases.” Ante at 327 n 63. 49 neglects Robinson, The Chief Justice also to mention that 462 26, expressly at 466 n likely identified two illustrative cases it would not they have overruled if wrongly Massey even it believed had been decided: State, Secretary 410; v (1998), 457 Mich 579 NW2d 862 the case upholding limits, Advisory Opinion Constitutionality term re 1972 (1973), PA 389 Mich advisory NW2d 469 this Court’s initial opinion regard People automobile no-fault insurance. See also (2004) Lively, 248, 259; (Maekman, J., 470 Mich 680 NW2d 878 concur ring) (finding unnecessary it longstanding prece to determine whether standards); Starks, dent should be People overruled under Robinson (2005) 227, 237; J., joining concur (Markman, ring opinion case). stating unnecessary prior it was to overrule a 484 Mich 300 Dissenting Opinion Markman, practice, consistent absurdity, not mischievous in from McDowell, another,” they should be retained. with one (1853)]. [417, lightly adopt rules to I would not new Pa used my judicial philosophy when traditional tools guide history throughout continue to serve well. their courts J., concurring [Rowland, Mich at 255 n 8 (Kelly, part dissenting part).] finds it However, apparently the Chief Justice now 150-year-old standard necessary depart from fashion her own new hailed to previously she has standard, with its seven justification” “compelling criteria, why are left to she no ponder evaluative and we absurdity, not mischievous longer views the “free from another” standard as a practice, and consistent with sufficient test.50 feels

Moreover, why it is the Chief Justice perplexing necessary replace Robinson and it that it is to overrule similarity of these stan- given with her new test standards, to use her own is this “neces- Why, dards.51 nothing It not lost on the reader that these criteria are also should be together any prior hodgepodge case law in more than a thrown without ambiguity support. forth in Given her criticism that the test for set air,” 311, might Mayor Lansing up out “thin ante at one was made identify especially careful to at least one think the Chief Justice would that have her own new criteria. or two courts utilized standard, analysis “begin[s] stare decisis Under the Chief Justice’s presumption upholding precedent the involved is the with the that Robinson, preferred “[s]tare decisis course of action.” Ante at 317. Under ” (citation Robinson, preferred generally 462 Mich at ‘the course.’ omitted). standard, we are to consider whether Under the Chief Justice’s practical precedent proven the “has to he intolerable because it defies Robinson, workability!.]” the Ante at 320. Under we considered “whether ” workability.’ Robinson, precedent ‘practical “defies 462 Mich at 464. standard, Under the Justice’s a court is to consider “whether Chief overruling [precedent] the is such that it would cause reliance on Robinson, hardship inequity!.]” special at 320. Under we and Ante hardship.” an undue considered “whether reliance interests would work standard, Robinson, Mich the Justice’s we are to at 464. Under Chief developed principles far since related of law have so consider “whether Corporation Magna Opinion by Dissenting Markman, J. doing “compelling justification” and what is saiy” that the statements Indeed, the Chief Justice’s given this? and superficial has proven Robinson] “application [of that Robin- added), and cursory,” ante at (emphasis “insufficiently respectful son, applied, as previously the rule has pronounced no more than a remnant the rule was Robinson, “whether we considered 320. Under survived!.]” Ante at questioned longer justify decision.” Robin- changes law ... no standard, are to we son, the Chief Justice’s Mich at 464. Under changed, or come to have so and circumstances consider “whether facts significant differently, rule of have robbed the old as to be seen so Robinson, consid- justification!.]” Under we application Ante at 320. justify questioned longer changes facts no in the ... ered “whether standard, Robinson, Justice’s at 464. Under the Chief 462 Mich decision.” jurisdictions have decided similar “whether other we are to consider Robinson, we at 320. Under manner!.]” Ante in a different issues workability” questioned decision “practical of the considered both jurisdictions law,” from other “changes under which decisions in the Robinson, at 464. Under address each factor. could be used to upholding standard, “whether we are to consider Justice’s the Chief public inter- prejudicial to likely detriment to result in serious rule is “practical Robinson, both the we considered ests!.]” Ante at 320. Under “changes in the law or facts workability” questioned decision and decision,” Robinson, Mich at justify questioned longer that no consideration, 464, gave in the Justice’s Chief and each these factors likely upholding to result in serious language, the rule is to “whether public interests!.]” at 320. prejudicial Ante detriment prior test—“whether in the Justice’s new The final factor Chief prece- unexplained departure abrupt largely from decision was an approach dent,” aspects former ignores two of this Court’s ante at 320— First, by establishing level of deference” for a “lower decisis. to stare precedent, the Justice disre- Chief that themselves have overruled cases precedents themselves often gards particular she so disfavors that the precedent.” “departfed] Ante at 317-318. from overruled decisions (Markman, J., concurring), Rowland, Mich at 228-247 See the chart in into account Justice take this decisions. Does the Chief for a list of such workings Second, in the invite those interested in her calculus? I can judiciary in which the former the decisions of this Court of their to read compare precedent, these with the majority id. at overruled see ignored majority overruled or the new has now decisions which opinion, these have and assess which of precedent, note 47 of this see “abrupt.” “unexplained” or been most 484 Mich Dissenting Opinion by J. Markman, precedent,” ante at one has to wonder whether her real concern is not with the Robinson itself, test but merely with what she views as the misapplication of that test.

V CONCLUSION I would reverse the Court of Appeals because the final 418.315(1) sentence of MCL does not allow a magistrate to assess an employee’s attorney fees against the employer. Rather, that sentence allows magistrate to divide attorney fees among medical providers when magistrate has ordered direct pay- ment for medical expenses from employer to those providers. J, concurred

Corrigan, Markman,

Case Details

Case Name: Petersen v. Magna Corp.

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2009

Citation: 773 N.W.2d 564

Docket Number: Docket 136542 and 136543

Court Abbreviation: Mich.